UK Supreme Court hands down judgment in its first collision case

The Collision Regulations are the "rules of the road" for mariners navigating vessels worldwide. Historically, English law has played an extensive role in shaping their interpretation and understanding. However, it has been nearly 50 years since a case involving their interpretation has reached the jurisdiction's highest court.

This changed recently when the Supreme Court handed down judgment in Evergreen Marine (UK) Limited v Nautical Challenge Ltd [2021] UKSC 6.

The collision occurred just outside the narrow channel to the port of Jebel Ali in the United Arab Emirates. The "ALEXANDRA 1" was bound for the port and needed to embark an inbound pilot before entering the channel. She was therefore travelling at a very slow speed through the pilot boarding area and waiting at the entrance of the channel. Conversely, the "EVER SMART" was outbound via the narrow channel.

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The Admiralty Court and Court of Appeal's Decision

At first instance, the issue for the court was whether the crossing rules were overridden by the narrow channel rule. As many reading this article will know, the narrow channel rule (rule 9) requires a vessel proceeding along a narrow channel to keep to the starboard side of it. The crossing rules (rules 15-17) apply where two power-driven vessels are crossing so as to involve a risk of collision. They require the vessel which has the other on her starboard side to keep out of the way (the “give-way vessel”) whilst the other vessel is required to keep her course and speed (the “stand-on vessel”).

Sitting as Admiralty Judge, Sir Nigel Teare held that the crossing rules did not apply. Instead, this situation was governed by the narrow channel rule. In doing so he relied on "statements of principle" in previous authorities that vessels approaching a narrow channel intending to enter it must navigate in such a manner that, when they reach the entrance, they are on the starboard side of the channel in compliance with rule 9.

Further, he found that it could not have been intended by those who drafted the Collision Regulations that there would be two sets of rules (i.e. the narrow channel rule and the crossing rules) which apply at the same time. That would be confusing and not in the interests of safety. Lastly, Sir Nigel held that ALEXANDRA 1 was not on a sufficiently defined course for the crossing rules to apply in any event. The Court of Appeal agreed.

Issues for the Supreme Court

EVER SMART's owners appealed and asked the Supreme Court to answer the following questions:

  1. Are the crossing rules inapplicable or to be disapplied where an outbound vessel is navigating within a narrow channel and has a vessel on a crossing course approaching the narrow channel with the intention of and in preparation for entering it?
  2. Does the give-way vessel need to be on a steady course for the crossing rules to be engaged?

The Supreme Court's Decision

Question Two

Beginning with question two, the Supreme Court held that a give-way vessel does not need to have a steady course for the crossing rules to apply. All that is required for the crossing rules to be engaged is for the two vessels to be on a steady bearing, as viewed from each vessel. This is consistent with the express wording of rule 15 which makes no mention of "course" and is preferable from a practical perspective. In reaching this conclusion, the Court rejected a widely held interpretation of the Alcoa Rambler [1949] AC 236 which had been used to argue the contrary.

The Court also stated that the stand-on vessel does not need to be on a steady course for the crossing rules to apply. However, once the crossing rules are engaged, the stand-on vessel must keep its course but this does not mean that she must strictly maintain her precise heading, course, or speed. Instead, if the manoeuvre which she is visibly conducting when she becomes the stand-on vessel involves altering her heading or course, or slowing down, she may do so whilst maintaining her compliance with the rules.

Question One

The Court considered this question by reference to 3 broad groups of cases:

  1. Group 1 were vessels which are approaching the entrance of the narrow channel, heading across it but not intending to enter it. It was common ground between the parties that the crossing rules apply here.
  2. Group 2 were vessels intending to enter, and on their final approach to the entrance, adjusting their course to arrive at their starboard side of a narrow channel. In this situation, it was common ground between the parties that the narrow channel rule applies and not the crossing rules.
  3. Group 3 were vessels approaching the entrance to the channel which are intending and preparing to enter but are waiting to enter rather than being on their final approach. This was the situation that the ALEXANDRA 1 found herself in. In these circumstances, the Supreme Court held that the crossing rules do apply and are not excluded by the narrow channel rule.

The Supreme Court had 3 primary reasons for reaching this conclusion. Firstly, the crossing rules should apply wherever they can and should not be overridden in the absence of an express stipulation unless there is a compelling necessity to do so. There is no necessity to disapply the crossing rules in Group 3 cases.

Secondly, if the crossing rules are to be overridden, it must be clear to those navigating the vessels when this is to take place. If the test for the disapplication of the crossing rules was that the vessel was "intending and preparing to enter the narrow channel" this would not be clear enough. As stated by the Court, "how is the [outbound] vessel to know what the approaching vessel is intending, or what preparations she may be making?" Accordingly, only overriding the crossing rules when the approaching vessel is "shaping to enter the channel, adjusting her course so as to reach the entrance on the starboard side of it, on her final approach" is a preferable test as that can be readily determined by the outbound vessel; either by visual or radar observation of the approaching vessel’s course and speed.

Thirdly, by only disapplying the crossing rules when the approaching vessel is "shaping to enter the channel, adjusting her course so as to reach the entrance on the starboard side of it, on her final approach" instead of merely "intending and preparing to enter the narrow channel" the crossing rules will be overridden in fewer cases.

Conclusion

Overall, the judgment emphasises the paramount importance of the crossing rules and the principle that they should be strictly applied if they can be. More generally, the judgment provides comprehensive guidance on how the Collision Regulations are to be interpreted and is littered with useful definitions on bearing, course and heading which have sometimes been inadvertently conflated or taken for granted in previous judgments.

On a practical level, it is a positive development that the Supreme Court has rejected an additional requirement of steady course for the crossing rules to be engaged. This makes the rules easier to understand and apply. Ultimately, the judgment provides clear and understandable guidance to mariners which will be of use to them when waiting outside the entrance to narrow channels in locations all over the world.

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