Supreme Court’s First Collision Case
On 11 February 2015 Ever Smart, a very large container vessel, was outbound from the port of Jebel Ali In the United Arab Emirates, when it collided with Alexandra I, an inbound vessel.
The collision took place within the pilot boarding area, just outside the dredged entrance/exit channel to the port.
Thus it was that the first appeal in a collision action came before the Supreme Court.
It was, indeed, approaching 50 years since the last such appeal came before the House of Lords[1]: Evergreen Marine (UK) Limited (Appellant) v Nautical Challenge Ltd (Respondent) [2021] UKSC 6 Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Hamblen, Lord Burrows sitting with Nautical Assessors Captain Nigel Palmer OBE MNM and Commander Nigel Hare RN.
In determining liability, the High Court assessed each vessel’s faults, applying the Collision Regulations, holding that Ever Smart was 80% liable Alexandra I 20% liable.
The Court of Appeal agreed on the two issues decided and upon apportionment. Each court was assisted by Nautical Assessors.
In the Supreme Court Lord Briggs and Lord Hamblen gave the judgment which unanimously allowed the appeal.
The focus of the appeal was the crossing rules, but it was important to read them in context. The crossing rules lay at the heart of the scheme for avoiding collisions where two vessels were approaching each other on a steady bearing (other than overtaking or head-on) and were thereby at risk of collision.
The first issue to determine was whether the crossing rules only engaged if the putative give-way vessel was on a steady course. It determined whether the crossing rules were even engaged.
Noting the language and context of the crossing rules, the Supreme Court found that there was no “steady course” requirement.
From a practical perspective, there may be many reasons why a vessel which was moving over the ground may not be on a steady course but nevertheless crossing with another vessel on a steady bearing, as demonstrated by this collision.
It may not be easy to assess if the other vessel was on a steady course as changes in the heading or course of another vessel may not be readily apparent from a careful visual watch, whereas an appreciable change in the bearing of the other vessel was observable, using a compass, which almost all vessels would have, or with radar.
If the crossing rules did not apply, then there would be a gap in the Collision Regulations.
Although there were cases which had been interpreted as meaning that at least the stand-on vessel must be on a steady course, the case law did not require the give-way vessel to be on a steady course before the crossing rules were engaged.
The key case was The Alcoa Rambler[2]. Alexandra 1 was approaching Ever Smart on a steady bearing for over 20 minutes before the collision, on a crossing course. This was sufficient to engage the crossing rules even though she was not on a steady course.
Although it did not arise on the facts, for the same reasons the stand-on vessel need not be on a steady course to engage the crossing rules either.
The narrow channel rules required vessels proceeding along the course of a narrow channel to keep as near to its starboard side as was safe and practicable (rule 9(a)).
In some scenarios, they displaced the crossing rules (where two vessels were approaching each other in a narrow channel in different directions); in others, the crossing rules may still apply (where one was crossing the channel).
The critical question was which rules applied when one vessel was proceeding along a narrow channel towards its exit and the other vessel was approaching its entrance with a view to proceeding along it.
In the present case Alexandra I was the approaching vessel, intending and preparing to enter the channel but, crucially, waiting for her pilot rather than shaping her course for the starboard side of the channel, on her final approach.
There was no necessity for the crossing rules to be overridden as the narrow channel did not yet dictate the navigation of the approaching vessel.
She could comply with her obligations under the crossing rules, whether she was the give-way vessel or the stand-on vessel. Similarly, there was no need to disapply the crossing rules from the perspective of the vessel leaving the channel.
The crossing rules were only displaced when the approaching vessel was shaping to enter the channel, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.
The crossing rules applied and Alexandra, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Ever Smart.
The High Court would need to redetermine the apportionment of liability between the two parties.
[1] The Savina [1976] 2 Lloyd’s Rep 123
[2] [1949] AC 236