Evergreen Marine (UK) Limited (Appellant) v Nautical Challenge Ltd (Respondent)

Hilary Term

[2021] UKSC 6

On appeal from: [2018] EWCA Civ 2173

Appellant

Respondent

Simon Rainey QC Nigel Jacobs QC (Instructed by Ince

Vasanti Selvaratnam QC

James Shirley
(Instructed by Clyde &

Gordon Dadds LLP and

Co)

Stann Law Limited)

LORD BRIGGS AND LORD HAMBLEN: (with whom Lord Lloyd-Jones,

Lady Arden and Lord Burrows agree)

I	Introduction

1. This is the first appeal in a collision action to come before the Supreme Court.

Indeed, it is approaching 50 years since the last such appeal before the House of
Lords - The Savina [1976] 2 Lloyd’s Rep 123.

2. The appeal raises two important questions of construction of the International Regulations for Preventing Collisions at Sea 1972 as amended (“the Collision Regulations”). Both questions relate to the application of the “crossing rules”, as set out in rules 15-17 of the Collision Regulations. These rules 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”). They are of cardinal importance to the safety of navigation.

3. The first question which the court has been asked is whether the crossing rules are inapplicable or are 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. This concerns the inter-relationship between the crossing rules and the “narrow channel rules” - rule 9. Rule 9(a) requires vessels proceeding along the course of a narrow channel to keep as near to its starboard outer limit as is safe and practicable.

4. The second question which arises is whether it is necessary for the putative give-way vessel to be on a steady course for the crossing rules to be engaged. The “putative give-way vessel” is the vessel which, if the crossing rules apply, would be required by rule 15 to keep out of the way of the other vessel. In practical terms it is the vessel which has the other vessel on her starboard side. We will call that other vessel the “putative stand-on vessel”.

5. The collision which gives rise to these questions was between the appellant’s large container vessel, Ever Smart (“EVER SMART”) and the respondent’s VLCC (very large crude carrier), Alexandra 1 (“ALEXANDRA 1”). The collision took place within the pilot boarding area, just outside the dredged entrance/exit channel to the port of Jebel Ali in the United Arab Emirates (“the channel”), at 2342:22 local time (GMT+4) on 11 February 2015. (The time of the collision is referred to hereafter as “C” and times leading up to the collision as “C-x”.) EVER SMART was outbound from Jebel Ali laden with 48,564 mt of containerised general cargo and, until shortly before the collision, was proceeding along the channel. ALEXANDRA 1 was the inbound vessel, laden with 113,915 mt of condensate, and was, although not stationary, waiting in the pilot boarding area to pick up a pilot being released from EVER SMART before entering the channel. The channel is a “narrow channel” for the purpose of rule 9.

6. The experienced Admiralty judge, Teare J, and the Court of Appeal answered both questions in the affirmative, with the consequence that the crossing rules were not engaged at all or, if engaged, were overridden by the narrow channel rules, and therefore ALEXANDRA 1 was not under an obligation to keep out of the way of EVER SMART. On this appeal the appellant contends that this interpretation of the Collision Regulations is wrong and does not give sufficient weight to the fundamental importance of the crossing rules in preventing collisions at sea.

7. These questions are of real importance to mariners, and to the effectiveness of the Collision Regulations in preventing, as far as possible, collisions at sea. Bearing in mind that a narrow channel may include an appropriately narrow harbour entrance, the crossing situation to which the first question relates occurs very frequently, all round the world. As for the second question, there may be many reasons why a vessel which is moving over the ground may not be on a steady course, but nevertheless be approaching another vessel on a steady bearing and therefore with a risk of collision, as stated in rule 7(d)(i). It is a striking feature of the present case that, although ALEXANDRA 1 (which was the putative give-way vessel) was not on a steady course, she and EVER SMART were approaching each other on a steady bearing for the whole of the 23 minute period before the collision.

II

The Facts

8. At all material times, weather conditions were benign with clear night skies and good visibility of 10 - 12 miles. The wind was force 3 said to be from an easterly or east-north-easterly direction. There was a 1 knot south westerly setting current. Both vessels were exhibiting masthead, side and stern lights in accordance with the Collision Regulations. Masthead lights are visible at a minimum distance of six miles and sidelights are visible at a minimum distance of three miles. ALEXANDRA 1, in addition, was displaying an all-round red light showing that she was carrying a dangerous cargo. Given the good visibility, the vessels would have been in sight of each other when they were about six miles apart (about C-23).

9. The channel lies on an axis of 315 degrees/135 degrees (true) about 8.5 nautical miles in length and slightly less than two cables in width. The channel is marked by lateral red and green buoys (port and starboard), from No 1 buoys at the seaward end to No 12 buoys at the outer breakwater and is dredged to 17 metres. At the seaward end is the designated pilot waiting area, shown on Admiralty Chart BA 3739 as a circular area with a one nautical mile radius. The limit of the circular area as shown on the chart is just under three cables beyond the No 1 buoys.

10. Both vessels were equipped with Voyage Data Recorders (“VDR”). As in most modern collision actions, the VDRs enabled an accurate reconstruction to be agreed, together with details of the vessels’ movements and orders, as well as providing audio recordings from the respective bridges. For the purpose of the trial, the parties agreed a reconstruction of the vessels’ tracks (ie movements over the ground) which was subsequently transposed onto Chart BA 3739 (with a scale). This was annexed to the judgments below and is annexed to this judgment as Annexe A.

11. A detailed account of the navigation of both vessels is set out in the judgment of Teare J at paras 23-34 - [2017] EWHC 453 (Admlty); [2017] 1 Lloyd’s Rep 666. For the purpose of the appeal the parties agreed a statement of facts summarising the most relevant matters, as set out below.

12.       In terms of the navigation of ALEXANDRA 1:

(i) As a laden tanker bound for Jebel Ali, ALEXANDRA 1 needed to embark her inbound pilot and then to enter the channel. She was underway from the anchorage and proceeding towards buoy No 1 at about 2247, having been informed by Jebel Ali Port Control that a pilot would be boarding at 2315 and to be at buoy No 1 at that time. Shortly afterwards (2254) she was advised by Jebel Ali Port Control that her pilot was on board the outbound EVER SMART, that EVER SMART would proceed up to buoy No 1, and that once she was clear ALEXANDRA 1 “can enter the channel”.

(ii) At 2315 (C-27) ALEXANDRA 1 was within the pilot boarding area about 1.4 nautical miles WNW of the No 1 buoys.

(iii) At 2318 (C-24) the engines of ALEXANDRA 1 were stopped and her helm was amidships. Her speed over the ground was 2.3 knots, her course made good (ie over the ground) was 126 degrees and her heading 110 degrees. At about this time, those on board ALEXANDRA 1 observed EVER SMART proceeding outbound along the channel. At that time, EVER SMART would have been between Nos 6 and 7 buoys.

(iv) At about 2320 (C-22), a starboard helm order was given although this was followed by an amidships order.

(v) At about 2327 (C-15) ALEXANDRA 1’s engines were put from stop to dead slow ahead. Her speed through the water was 1.3 knots and began to increase. She was now about 1 mile WNW of the No 1 buoys.

(vi) At 2328 (C-14) her master overheard a conversation between Port Control and the tugboat ZAKHEER BRAVO. The tug was towing a barge and requested permission to pass the pilot station from west to east en route to Jumeirah. Port Control asked if the tug could see a waiting tanker and she replied that it was on her starboard bow. Port Control advised her to proceed at least one mile astern of the tanker.

(vii) The Master misunderstood the conversation and thought that Port Control was speaking to EVER SMART and that EVER SMART would be attempting to pass one mile astern of ALEXANDRA 1. This caused the Master concern as he feared that if ALEXANDRA 1 went around buoy No 1 there would be a “fucking crunch” at the entrance to the channel.

(viii) At 2331 (C-11), ALEXANDRA 1 stopped her engines and put them to dead slow ahead again at 2332 (C-10). She was now about nine cables WNW of No 1 buoys, her speed over the ground was 1.8 knots, her course made good was 101 degrees and her heading 97 degrees.

(ix) At 2335 (C-7) her master observed the pilot vessel alongside the port side of EVER SMART and that the latter’s speed had fallen. He compared EVER SMART to a “Mercedes” and ALEXANDRA 1 to “a hog on ice, with no skates”. Shortly afterwards, the pilot vessel was observed leaving EVER SMART.

(x) At 2337 (C-5) ALEXANDRA 1 was approaching the point at which she would normally have turned to line up with the starboard side of the approaches to the channel. However, she did not do so due to the mistaken understanding of the conversation between Port Control and ZAKHEER BRAVO at C-14. At this stage her speed over the ground was 2.1 knots, her course made good was 106 degrees and her heading 92 degrees.

(xi) At about 2338 (C-4), the engines of ALEXANDRA 1 were put from dead slow ahead to slow ahead. The Master expressed concern that it was about the time to turn into the channel between No 1 buoys. At this stage her speed over the ground was 2.2 knots, her course made good was about 102 degrees and her heading about 90 degrees.

(xii) At about 2340 (C-2) the Master of ALEXANDRA 1 observed EVER SMART abeam of No 1 buoys but was not turning to port as he had expected. Her engines were put to full astern, but this had little effect on her speed which was 2.3 knots over the ground at this time, increasing to 2.5 knots over the ground by C-1. At this stage her course made good was about 92 degrees and her heading 93 degrees.

(xiii) At C-1, the Master called Port Control and advised it that EVER SMART was not changing course and that there would be a collision.

(xiv) At C-30 seconds, her engines were put to dead slow astern. Her master told EVER SMART by VHF to go hard to starboard and switched on the deck lights of ALEXANDRA 1.

(xv) Less than a minute after the collision, her master said to Port Control, “he’s not following your rules ... you told him to go to my stern”.

13.       In terms of the navigation of EVER SMART:

(i) EVER SMART left the container terminal at 2230 with a pilot on board, proceeding along the channel at full ahead (manoeuvring) until about C-11. Her course and speed over the ground were 313 degrees - 314 degrees (true) and about 12.9 knots respectively.

(ii) When the vessel passed No 6 buoys to No 4 buoys (C-20 to C-14) EVER SMART was proceeding in about mid-channe1.

(iii) At about 2331 (C-11) her engines were reduced to half ahead and at C-10 to slow ahead as she passed No 3 buoys slightly to port of mid-channel.

(iv) From 2332 (C-10) until collision, EVER SMART was navigating to port of mid-channel and thus on the wrong side of the channel in breach of

rule 9.

(v) At about 2333 (C-9) her pilot advised the Master to proceed at 10 knots and to keep a course of 314 degrees over the ground. He also advised that there was a vessel (ALEXANDRA 1) to port and that the Master should take care. At this time EVER SMART’s speed over the ground and course made good were respectively 12.2 knots and 312 degrees.

(vi) At about 2334 (C-8) her engines were reduced to dead slow ahead to enable the pilot to disembark, and the Master ordered a course of 319 degrees to be steered. Her radar, which had been on relative motion, was switched to north up display.

(vii) By 2336 (C-6) the pilot had disembarked, having advised EVER SMART before leaving the bridge to proceed at 10 knots, to keep a course of 314 degrees over the ground, that there was a vessel to port and to take care. The pilot vessel moved ahead of EVER SMART to meet ALEXANDRA 1. EVER SMART was passing No 2 buoys.

(viii) At C-5 her speed was increased to half ahead and then full ahead (C- 4) and shortly afterwards to full sea speed (C-3½). The vessel’s speed over the ground increased to 9.5 knots at about (C-5), 11.8 knots at about (C-1) and was 12.4 knots at the time of collision. She passed No 1 buoys at about 2340 (C-2).

(ix) At C-30 seconds, Port Control contacted EVER SMART to ask if she was clearing to starboard. At about the same time both the pilot (still on board the pilot boat) and the Master of ALEXANDRA 1 instructed EVER SMART to go hard to starboard. Her master then ordered hard to starboard. Very shortly before the collision, the Master of EVER SMART said “what’s that?”.

(x) Less than two minutes after the collision the Master of EVER SMART said (apparently to the officer of the watch and helmsman) “both of you ... have you seen it or not?” He then said “how come you didn’t see it?”.

(xi) At about C+6 the Master of EVER SMART reported the collision to his owners saying “We hit her ... because she stopped outside waiting, we were leaving the port, we did not see that ... I saw the light, but didn’t know she was transverse, so we knock against her bow”.

14. At the point of collision, ALEXANDRA l’s bow was on about the centre line of the channel, projected forward from No 1 buoys. The port bow of EVER SMART struck the starboard bow of ALEXANDRA 1 at an angle of about 40 degrees leading aft on EVER SMART. At collision the speed and course of EVER SMART over the ground was 12.4 knots and 316.0 degrees (true) and her heading was 323.9 degrees (true). The speed and course of ALEXANDRA 1 over the ground was respectively 2.4 knots and 104.4 degrees (true) and her heading was 101.2 degrees (true). The judge found that for the whole of the relevant period of 23 minutes before the collision the two vessels were approaching each other on bearings which, viewed each from the other, did not appreciably change: see para 66.

15. The loss and damage sustained by each vessel arising out of the collision has

been determined (subject to apportionment) in the sum of US $9,308,594.71 for
ALEXANDRA 1 and in the sum of US $2,531,373.71 for EVER SMART.

III	The judgments below
(i) The judgment of Teare J

16. Teare J sat with Captain Stephen Gobbi and Captain Nigel Hope, Elder Brethren of Trinity House, as Nautical Assessors. The role of the Nautical Assessors is to provide advice as to matters of navigation and seamanship. The court is not bound by that advice, and must form its own view about those matters in the light of all the submissions received from the parties. The interpretation of the Collision Regulations is a matter of law for the judge to determine. The judge’s judgment was carefully structured to reflect this division of roles.

17. Under the heading “The applicability of the crossing rule”, the judge first considered the relationship between the crossing rules and the narrow channel rules. He was referred to and considered a number of authorities: The Leverington (1886) 11 PD 117, The Kaiser Wilhelm der Grosse [1907] P 36 and 259, The Treherbert [1934] P 31, The Empire Brent (1948) 81 Ll L Rep 306, The Canberra Star [1962] 1 Lloyd’s Rep 24, The Glenfalloch [1979] 1 Lloyd’s Rep 247, Kulemesin v HKSAR [2013] 16 HKCFA 195 and The Nordlake and The Seaeagle [2016] 1 Lloyd’s Rep 656.

18. The judge placed particular reliance on what he described as “statements of

principle” made by Hewson J in The Canberra Star and by Lord Clarke in
Kulemesin.

19.       In The Canberra Star Hewson J stated at p 28:

“In the particular circumstances of this case where vessel A, proceeding down river outside the channel, intending to enter it, sees an upcoming vessel B approaching in the next reach, bearing on her starboard side, on a main-channel course which, if followed into the reach in which A is navigating, will or should enable the two vessels to pass safely port to port by reason of the fact that B should keep to her own starboard side, the crossing rule does not, in my opinion, apply.”

20.       In Kulemesin Lord Clarke stated as follows at para 225:

“… vessels approaching a narrow channel and intending to proceed along it are not bound by the crossing rule but must enter the channel and, as they do so, keep as near to the starboard side as is safe and practicable in accordance with rule 9. It seems to me to follow that a vessel shaping to enter the channel should, as a matter of good seamanship, navigate in such a manner that, when she reaches the channel, she is on the starboard side of the channel in accordance with rule 9.”

21. He considered that these “statements of principle” supported the case that the

crossing rules did not apply in this case and said that he agreed with them and should
follow them.

22. His other main reason for reaching that conclusion was that it cannot have been intended by those who drafted the Collision Regulations that there would be two sets of rules with different requirements applying at the same time as this would cause confusion and not be in the interests of safety. He accordingly concluded that “the crossing rules cannot have been intended to apply where one vessel is navigating along a narrow channel and another vessel is navigating towards that channel with a view to entering it” (para 53).

23. The judge also accepted an oral submission made by Ms Selvaratnam QC on

behalf of ALEXANDRA 1 that she was not “on a sufficiently defined course for the
crossing rules to apply”. He stated as follows at para 70:

“… The agreed schedule shows that from C-26 until C-23 her course over the ground varied from 119 to 127 degrees (altering to starboard), from C-23 until C-12 her course over the ground varied from 127 to 81 degrees (altering to port), from C-12 until C-7 her course over the ground varied from 81 to 115 degrees (altering to starboard) and from C-7 until C-1.5 her course over the ground varied from 115 to 91 degrees (altering to port). During that same period her heading also varied; from C-26 until C-14 her heading varied from 112 to 84 degrees (altering to port), from C-14 until C-8 her heading altered from 84 to 100 degrees (altering to starboard) and from C-8 until C-3 her heading altered from 100 to 90 degrees (altering to port). This variation of course made good and of heading was no doubt caused by the circumstance that ALEXANDRA I was proceeding very slowly (about 1-2 knots over the ground). At such a slow speed ALEXANDRA I was not very manoeuvrable. Nevertheless she made progress in a broadly east south easterly direction towards the entrance of the channel as she waited to embark the pilot. Was she on a sufficiently constant direction or heading to be on a course? I do not consider that she was. Her ‘course made good’ varied between 81 and 127 degrees (and her heading varied between 84 and 112 degrees). It is difficult to describe that as ‘a course’ (though her preliminary act describes her as being on an east south easterly course). I would describe her as maintaining a broadly east or east south easterly heading as she waited for the pilot vessel to approach. That required her to have some, but not very much, way on. I would describe ALEXANDRA I as waiting for the pilot vessel to arrive rather than being on a course. Had a good lookout been kept on board EVER SMART from C-21 until collision it would have been apparent that ALEXANDRA I had moved less than a mile. It would or ought to have been obvious that she was waiting to embark a pilot.”

Later, at para 71, he continued:

“... in any event ALEXANDRA 1 was not on a sufficiently
defined course for the crossing rules to apply.”

24. Having concluded that the crossing rules did not apply, the judge then considered the alleged faults of each vessel.

25. One of the allegations of fault made against ALEXANDRA 1 was that she

had approached too close to the end of the channel. This led the judge to ask the
Elder Brethren the following question (paras 93-94):

“Did good seamanship require ALEXANDRA I to keep a certain minimum distance from buoys No 1 so long as EVER SMART was still in the dredged channel and if so what was that distance?”

Their advice was:

“Subject to a good aural and visual lookout, it would be reasonable and good seamanship for the Master of Alexander I to have approached the first pair of buoys keeping close to her own side of the entrance channel.”

26. In terms of fault, the judge concluded that EVER SMART was at fault in (i) breaching the narrow channel rule by not keeping to the starboard side of the narrow channel; (ii) keeping a defective radar and visual lookout and making assumptions on the basis of scanty information; and (iii) proceeding at an excessive speed, a direct consequence of her failure to keep a good lookout. ALEXANDRA 1 was at fault by failing to keep a good aural lookout, with the result that, following a misheard or misunderstood VHF conversation, she did not turn to starboard towards the channel and instead headed so as to cross the approaches to the channel.

27. The judge found the faults of EVER SMART to be very serious in terms of culpability and ALEXANDRA 1’s fault to be culpable to a substantial degree. In terms of relative culpability, the faults of EVER SMART were found to be much more culpable than those of ALEXANDRA 1.

28. In terms of causative potency, the judge did not consider that there was a marked difference in quality between the contribution which each vessel made to the fact that the collision occurred. Having regard, however, to the unsafe speed of EVER SMART, she contributed far more to the damage resulting from the collision than the very much lower (and safe) speed of ALEXANDRA 1. It followed that the causative potency of EVER SMART’s fault was greater than that of ALEXANDRA 1.

29. In the light of these conclusions, the judge’s conclusion on apportionment

was that EVER SMART should bear 80% of the liability for the collision and
ALEXANDRA 1, 20%.

(ii)       The judgment of the Court of Appeal

30. The Court of Appeal also sat with Elder Brethren of Trinity House as Nautical Assessors, Rear Admiral Snelson and Captain Glass. The lead judgment was given by Gross LJ, an experienced Admiralty practitioner, with whom Lewison and Leggatt LJJ agreed - [2018] EWCA Civ 2173; [2019] 1 All ER (Comm) 303.

31. The Court of Appeal upheld the judge’s conclusion that the narrow channel

rules applied to the exclusion of the crossing rules. Their reasons for so concluding
are summarised at para 74 as follows:

“Pulling the threads together on authority in the situation where one vessel is approaching a narrow channel intending to enter it and the other vessel is navigating in the narrow channel intending to exit it:

i) First, in agreement with Teare J, I regard the observations of both Hewson J and Lord Clarke as powerfully persuasive, supporting the inapplicability of the crossing rules in the present situation. I do not think that either The Canberra Star or Kulemesin is meaningfully distinguishable.

ii) Secondly, I respectfully agree with the reasons given by Teare J, Hewson J and Lord Clarke. As already discussed, the risk of potentially different actions being required at the same time is thereby avoided; this is not a situation where it is necessary to apply the crossing rules to secure safe navigation - and if it is not necessary to apply the crossing rules it can fairly be said that it is necessary not to apply them, so as to avoid adding a layer of confusion.

iii) Thirdly, the view upheld in The Canberra Star, Kulemesin and by the Judge, ensures continuity and a seamless entry into the channel, as explained in Kulemesin. It is to be underlined that in the present case the entrance to and exit from the narrow channel were in the pilot boarding area and that at all material times ALEXANDRA I was manoeuvring in that area.

iv) Fourthly, with respect, like Hewson J, I am wary of over-generalising. On the facts here, I am persuaded that the crossing rules did not apply. Any rule of law in this regard must be limited to factually indistinguishable or materially similar situations. Beyond that, I would not go and, reading the judgment as a whole, I do not think the Judge went either.”

32. This conclusion was “stress-tested” by considering a hypothetical East-West situation with the incoming vessel approaching the channel from the East so that it had to cross over to the starboard side of the channel to prepare for entry. It was EVER SMART’s case that the crossing rules must apply in such a case as otherwise there would be no rule of priority. The Elder Brethren were asked to consider what actions would be expected from a prudent mariner in accordance with the ordinary practice of seamen on the outbound and inbound vessel in such circumstances. Their answer set out various steps they considered that the prudent mariner should take to avoid any risk of collision. In relation to the outbound vessel this included keeping a sharp look out, ensuring compliance with rule 9 by staying on the starboard side of the channel, acquiring the inbound vessel as an ARPA target, consulting the onboard pilot and port control about the inbound vessel’s intentions, making early VHF contact with the other vessel and being prepared to adjust speed to resolve close quarter/collision risk if necessary. In relation to the incoming vessel this included matters such as keeping a sharp lookout, approaching via the fairway buoy, acquiring information about pilot boarding time and position, acquiring the outbound vessel as an ARPA target and keeping a close watch on the vessel’s bearing to determine the risk of collision, and identifying and making early VHF contact with the outbound vessel.

33. The Court of Appeal considered that this advice supported their conclusion that the crossing rules did not apply. As Gross LJ stated at para 84:

“… The Elder Brethren were, of course, concerned with seamanship not matters of law. But it is plain from the Answer that the Elder Brethren did not consider the crossing rules to have any role to play in the hypothetical East-West situation. To my mind, the Answer provides a comprehensive, realistic guide to safe navigation for both vessels, according to the requirements of good seamanship, and governed by rules 2 and 9. The attraction of the rule of priority under the crossing rules is understandable but less than compelling in the situation with which we are concerned. In my judgment, the Answer reflects the practical reality of good seamanship, within this port area ...”

34. The Court of Appeal also upheld the judge’s conclusion that the ALEXANDRA 1 needed to be on a sufficiently defined course for the crossing rules to apply and rejected a challenge to his finding that she was not on such a course. Gross LJ considered that this conclusion was supported by observations made in various authorities as well as the decision of Brandon J in The Avance [1979] 1 Lloyd’s Rep 143. He reasoned as follows at para 92:

“… Though the position may not be as obvious as in the case of the stand-on vessel, I am nonetheless satisfied that both vessels, the give-way vessel included, must be on sufficiently defined courses for the crossing rules to apply. That is of the essence of the crossing rules. The need for an appreciation of the situation is not confined to the give-way vessel; the stand- on vessel must be in a position to appreciate her own status as such - and, additionally may be required to make a judgment call in the light of the action taken by the give-way vessel: rule 17(a)(ii) and (3). The mere fact that there was a risk of collision through convergence, is not determinative of whether the crossing rules apply. Put colloquially (in Ms Selvaratnam’s words), it takes two to cross.”

IV	The issues on the appeal
35.	The questions of law which arise are in the following agreed terms:
QUESTION 1: On the proper construction of the Collision Regulations, are the crossing rules inapplicable or should they be disapplied where an outbound vessel is navigating within a narrow channel and has a vessel on her port (or starboard) bow on a crossing course approaching the narrow channel with the intention of and in preparation for entering it?
QUESTION 2: On the proper construction of the Collision Regulations, in determining whether the crossing rules are applicable, is there a requirement for the putative give-way vessel to be on a steady course before the crossing rules can be engaged?

36. Like the courts below, we have sat with Elder Brethren of Trinity House as Nautical Assessors, Captain Nigel Palmer OBE MNM and Commander Nigel Hare RN. Following the hearing the court considered that it needed the assistance of the Nautical Assessors. Following a request for, and receipt of, written submissions from the parties as to their form, three questions were asked of them by letter from the court on 9 December 2020. A prompt response was received from the Nautical Assessors in a joint letter dated 16 December, upon the content of which the court also sought and received written submissions from the parties. We will refer to the advice of the Nautical Assessors as appropriate during the course of this judgment. Although we have not considered ourselves bound to follow their advice we wish to express the court’s gratitude for their assistance.

V	The Collision Regulations and the approach to their interpretation

37. The Collision Regulations are an International Maritime Organisation (“IMO”) 1972 Convention (“the 1972 Convention”). They are given the force of law in the United Kingdom and applied to United Kingdom ships “wherever they may be” by the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 (SI 1996/75), made by the Secretary of State for Transport under sections 85 and 86 the Merchant Shipping Act 1995. They are applicable in this case because one of the shipowners, the registered owner of EVER SMART, is a UK registered company.

38. As an international convention the Collision Regulations should be interpreted by reference to broad and general principles of construction rather than any narrower domestic law principles - see Stag Line Ltd v Foscolo, Mango & Co Ltd [1932] AC 328, 350, James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, 152D-E, Fothergill v Monarch Airlines Ltd [1981] AC 251, 272E, 282A and 293C, Morris v KLM Royal Dutch Airlines [2002] UKHL 7; [2002] 2 AC 628, 656, para 78, and Gard Marine and Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2017] UKSC 35; [2017] 1 WLR 1793, para 72.

39. Such general principles include the general rule of interpretation set out in

article 31.1 of the Vienna Convention on the Law of Treaties 1969, which provides
that:

“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

40. The object and purpose of the 1972 Convention is to promote safe navigation

and specifically the prevention of collisions at sea. As stated by Sheen J in The
Maloja II [1993] 1 Lloyd’s Rep 48, 50-51:

“The structure of the Collision Regulations is designed to ensure that, wherever possible, ships will not reach a close- quarters situation in which there is risk of collision and in which decisions have to be taken without time for proper thought. Manoeuvres taken to avoid a close-quarters situation should be taken at a time when the responsible officer does not have to make a quick decision or a decision based on inadequate information. Those manoeuvres should be such as to be readily apparent to the other ship.”

41. The international character of the Collision Regulations and the safety of navigation mean that they must be capable of being understood and applied by mariners of all nationalities, of all types (professional and amateur), in a wide range of vessels and in worldwide waters. They should accordingly be interpreted in a practical manner so as to provide clear and readily ascertainable navigational rules capable of application by all mariners. They are meant to provide international “rules of the road”.

42. They should also be interpreted in a uniform manner and regard should therefore be had to how they have been interpreted by the courts of different countries. During the oral hearing of the present case we were only referred to one foreign court decision - the Hong Kong court decision in Kulemesin. Further foreign authority was referred to during subsequent written submissions, to which we will also refer in due course.

43. The interpretation of the crossing rules should have due regard to the well- known statement of Lord Wright in The Alcoa Rambler [1949] AC 236 (PC) at p 250 that “wherever possible” the crossing rules “ought to be applied and strictly enforced because they tend to secure safe navigation”. For the same reason Lord Wright stated (at p 250) that it had “been found advantageous” for a “wider scope to be given to the crossing rule” in cases of doubt on a strict application of the rules.

44.       As Atkin LJ stated in The Ulrikka (1922) 13 Ll L Rep 367, 368:

“I desire to say as has already been said over and over again here and in the Admiralty Court, that it is of extreme importance strictly to maintain the enforcement of [the crossing rules]. These two rules are a bright light to navigators; and I suppose day by day and hour by hour they operate to prevent collisions at sea. It appears to me of the highest importance to enforce them and enforce them strictly.”

See also the judgment of Scrutton LJ in The Otranto [1930] P 110, 114-115.

45. Of particular relevance to the present case are the following Rules in the Collision Regulations:

“Rule 2 - Responsibility

(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.

…

Rule 7 - Risk of Collision

(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.

(b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.

(c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information.

(d) In determining if risk of collision exists the following considerations shall be among those taken into account:

(i) such risk shall be deemed to exist if the compass

bearing of an approaching vessel does not appreciably
change;

(ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.

…

Rule 8 – Action to avoid collision

(a) Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.

(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

…

Rule 9 - Narrow Channels

(a) A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.

…

(d) A vessel shall not cross a narrow channel or fairway if such crossing impedes the passage of a vessel which can safely navigate only within such channel or fairway. The latter vessel may use the sound signal prescribed in rule 34(d) if in doubt as to the intention of the crossing vessel.

…

Rule 15 - Crossing Situation

When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.

Rule 16 - Action by Give-way Vessel

Every vessel which is directed to keep out of the way of another vessel shall so far as possible, take early and substantial action to keep well clear.

Rule 17 - Action by Stand-on Vessel

(a)(i) Where one of two vessels is to keep out of the way the
other shall keep her course and speed.

(ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.

(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.

(c) A power-driven vessel which takes action in a crossing situation in accordance with subparagraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.

(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.”

VI	The crossing rules: context and purpose

46. The crossing rules form part of section 2, within Part B of the Collision Regulations. Part B is headed “Steering and Sailing Rules”. Section 2 is headed “Conduct of Vessels in Sight of One Another”, as is provided in rule 11. “Sight” means visual sight rather than for example visible on radar or AIS: see rule 3(k). It includes visibility at night, generally by observation of another vessel’s navigation lights, for which the Rules make detailed provision. Rule 15 is applicable only to power-driven vessels, so it may be described as one of the steering rules for power- driven vessels in sight of each other.

47. It will be necessary in what follows to make precise use of the words heading, course and bearing. None of them is expressly defined in the Collision Regulations. They are however words with a relatively settled meaning among mariners, as may be gathered from published nautical manuals and glossaries, and which it may be supposed that the Rules take for granted. The usage which follows has been checked with, and confirmed by, the Nautical Assessors, and is not a matter of controversy between the parties.

48. Sometimes heading and course are used interchangeably, as meaning the direction in which the vessel is being steered. But for present purposes we think it better (and the Nautical Assessors agree) to distinguish between them as follows. The heading of a vessel is the direction (expressed as a point or number of degrees on a compass) in which she is pointing at a particular moment in time. So, for example, a vessel is on a heading of North if a horizontal line projected from a compass on her centre point through her bow points North. Used in that sense, a vessel does not have to be moving to have a heading.

49. The course of a vessel is the direction, again expressed by reference to the points or degrees of a compass, in which she is moving. This may be through the water or over the ground. Course over the ground is sometimes called the course made good, so as to distinguish it from her course through the water. The judge uses course over the ground and course made good interchangeably. It is the course over the ground rather than the course through the water that matters for present purposes, as para 70 of the judge’s judgment makes clear. We use “course” in that sense. Where there is no wind or current the course of a vessel both through the water and over the ground may well be the same as her heading. She simply moves in the direction in which she is pointed. But this will not necessarily be so, as the Nautical Assessors have confirmed and the present case illustrates. Tidal stream, current, surface drift and wind, if present, will or may cause her course over the ground to be different from both her heading and her course through the water. Thus a vessel heading North in an Easterly current will be on a course over the ground which is East of North, the amount of the Easterly element being the product of the ratio between her speed (through the water) and the rate of the current. Broadly speaking, the slower the vessel’s speed and the faster the current, the greater will be the difference between her heading and her course over the ground. The significant difference between the heading and course over the ground of the slow-moving ALEXANDRA 1 in the present case is a good illustration.

50. Similarly, a wind may cause a vessel to make leeway, that is, to slide a little sideways through the water. This is almost invariably true of a sailing vessel (unless the wind is blowing from right astern) but can also be true of power-driven vessels such as high-sided container ships, as the judge noted had probably happened to the EVER SMART in the present case. Since wind is described (unlike current) by reference to where it is coming from, a vessel heading North may have her course deflected East by a Westerly wind. Leeway will produce a difference between a vessel’s heading and her course through the water. Sometimes leeway and current will act together to increase the difference between heading and course over the ground. Sometimes they may cancel each other out.

51. Course used as above may describe the direction of movement of a vessel at a particular point in time. More generally course may be used to describe the overall progress of the vessel over a period of time, which may accommodate changes in her heading and speed. As explained below a vessel may be said to maintain her course despite significant changes in heading and speed, measured at particular moments in time. Thus for example a vessel or a convoy proceeding along a zig zag pattern in wartime will nonetheless intend and achieve an overall specific course towards its destination, as will a vessel moving or “yawing” either side of an intended course in a rough sea: see The Queen Mary (1949) 82 Ll L Rep 303.

52. The bearing of a vessel, as that concept is used in the Collision Regulations, is quite different from her heading or her course. Bearing is an expression with various maritime meanings, but for present purposes compass bearing is the meaning which matters. It is the direction in which one vessel appears when viewed from another at a particular moment in time, expressed again in terms of the points or degrees of a compass. This is the way in which “compass bearing” is used in rule 7(d)(i). When vessel A takes a series of compass bearings of vessel B over time, and they do not appreciably change, vessel B is generally described as being on a steady bearing from vessel A. As the Nautical Assessors have confirmed, the compass bearing of one vessel from another may generally be measured with reasonable precision, by day or by night by radar and, when the vessels are in sight of each other, assessed visually by using a compass.

53. Compass (or absolute) bearing is to be distinguished from relative bearing. This is the direction in which one vessel appears from the other, measured (usually now in degrees) as an angle from the viewing vessel’s heading, from zero (dead ahead) to 180 (dead astern). In what follows, and in most of the reported cases, “bearing” is used as meaning compass bearing, in conformity with rule 7(d).

54. Generally speaking, a risk of collision exists between two vessels when they

are approaching each other on a more or less steady bearing: see per Willmer LJ in
The Aracelio Iglesias [1968] 2 Lloyd’s Rep 7, 10:

“On these facts, I think it is perfectly plain that at some time these vessels came under the duties of ships crossing on courses involving risk of collision. Witnesses from each of the ships said that over a substantial period the bearing of the other ship remained constant. That, as is well known, is an infallible warning to mariners that the vessels were approaching with risk of collision.”

See also the description of the facts in The Otranto [1931] AC 194. This is traditionally ascertained by each vessel by taking a series of bearings of the other vessel over a period of time, using a compass. It is also observable by regular inspection of radar. The bearing of vessel A from vessel B will necessarily be the reciprocal of the bearing of vessel B from vessel A. Thus if vessel A bears South (180 degrees) from vessel B, then vessel B must bear North (000 degrees) from vessel A. By definition, if vessel A’s bearing from vessel B does not appreciably change, the same will be true of vessel B’s bearing from vessel A.

55. Rule 7(d)(i) provides that a risk of collision shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change. In this context “approaching” simply means getting nearer. It does not necessarily mean heading towards each other. For example, a vessel being overtaken may be heading directly away from the overtaking vessel, but if they are each on a steady bearing from the other there is nonetheless a risk of collision because they are getting nearer to each other. Rule 7(d)(i) does not make a steady compass bearing the only indicator of a risk of collision: see eg rule 7(a), (b) and (d)(ii). But nor is it merely a rebuttable presumption. Wherever it applies, the risk of collision must be taken to exist.

56. Section 2 seeks to deal comprehensively with steady bearing collision situations by three rules which together cover the whole of the ground. Rules 13 and 14 deal respectively with vessels on substantially the same or reciprocal courses. Rule 13 (the overtaking rule) provides that, in an overtaking situation, the overtaking vessel must keep clear of the vessel being overtaken. Rule 14 (the head-on rule) provides that two vessels approaching each other on reciprocal or nearly reciprocal courses so as to create a risk of collision must each turn to starboard. Each of those rules contains precise specifications which triggers its application: see rules 13(b) and 14(b). In order to make them work clearly at night, the lighting rules, and rule 21 in particular, operate precisely in tandem with those triggering specifications. Rule 13(b), which triggers the overtaking rule, applies whenever the overtaking vessel is more than 22.5 degrees abaft the beam of the overtaken vessel. The courses of the two vessels may well be crossing, but rule 13 overrides the crossing rules where it applies: see rule 13(a).

57. Rule 15 seeks to deal comprehensively with every other steady bearing

collision situation, ie where the vessels are not overtaking or on reciprocal courses,
but crossing courses. It provides as follows:

“When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.”

In this context “crossing” simply means that their courses are not parallel but intersecting: ie that the lines representing the probable future course of each will intersect at some point. That of itself may not create a risk of collision. The seas are full of vessels on crossing courses which come nowhere near each other. But if they are approaching each other and the bearings of each, taken from the other, do not appreciably change, then there will be a risk of collision. Unless one of them keeps clear of the other, the two vessels will be likely to meet each other and collide. That is what rule 7(d)(i) provides in express terms. Although couched in terms of “deeming” this is not a deeming contrary to the facts. It is factually true as well. That is why it is described as an “infallible warning” of a risk of collision in The Aracelio Iglesias.

58. Rules 16 and 17, which apply respectively to the give-way vessel and the stand-on vessel, are not merely parts of the crossing rules. They each apply wherever the rules identify which vessel is to keep out of the way. They apply for example in an overtaking situation under rule 13, and where one vessel is under what may loosely be described as a special disability, under rule 18 (not under command, restricted in manoeuvrability, fishing or sailing), or between two sailing vessels under rule 12.

59. Rule 18 qualifies rule 15, in the sense that vessels under special disability are not bound to give way by the crossing rules. Rather the other vessel must keep clear. It has that effect because rule 15 is not among the exceptional rules mentioned at its commencement. The rules as to lights and shapes enable vessels protected by rule 18 to be identified by other vessels, both by day and by night: see rules 25 to 27.

60. Rule 16 imposes an almost unqualified obligation on the give-way vessel to take early and substantial action to keep well clear. The only express qualifications are (i) that the give-way vessel is not required to do the impossible: see rule 16 itself, and (ii) the general caveat that special circumstances may arise in which a departure from the Rules becomes necessary to avoid immediate danger: see rule 2(b). Rule 8 contains detailed guidance as to whether a give-way vessel should alter course, slow down or even stop. At para (a) it requires avoidance action to be undertaken “with due regard to the observance of good seamanship”.

61. By contrast, rule 17 imposes only a qualified obligation on the stand-on vessel to “keep her course and speed”. It is abrogated when it appears to the stand- on vessel that the give-way vessel is not complying with the Rules: see rule 17(a)(ii), or when action by both vessels has become necessary to avoid a collision: see rule 17(b). The abrogation of the stand-on vessel’s obligation does not relieve the give- way vessel of her obligation to keep clear: see rule 17(d). This re-inforces the almost unqualified nature of the give-way vessel’s obligation.

62. Nor is the stand-on vessel’s obligation to keep her course and speed necessarily an obligation strictly to maintain her precise heading, course, or even her precise speed. If the nautical manoeuvre upon which she is visibly engaged when she becomes the stand-on vessel involves altering her heading or course, or slowing down, she may do so without undermining the obligation of the give-way vessel to keep clear. She may for example be altering course or slowing down to pick up a pilot: see The Roanoke [1908] P 231. At p 242 Farwell LJ explains the purpose of the obligation of the stand-on vessel:

“So to hold [that such a change of speed or course by the stand- on vessel relieves the give-way vessel of her obligation to keep clear] would be to shift the duty of keeping out of the way from the giving-way vessel to the other, and would make article 21 [now rule 17] read as if the latter vessel were bound to keep her course and speed ‘so as to keep out of the way of the giving- way vessel’, instead of ‘so as to enable the giving-way vessel to keep out of her way’, which is, in my opinion, the true construction.”

63. In The Taunton (1928) 31 Ll L Rep 119, the stand-on vessel was an old sailing ketch, struggling across the Bristol Channel in a very strong cross-current, occasionally substantially altering her heading to avoid being swept down from her destination in Cardiff Roads. She was held not to have failed to keep her course and speed. Scrutton LJ said, at p 120:

“The decisions of this Court have thrown a light on that rule which perhaps one would not derive from the rule if one did not know anything about the decisions, because they have said that when the rule talks about keeping course and speed it means the course you were going to take for the object you had in view - not the course and speed you had at any particular moment. So you keep your speed although you stop, and you keep your course although you alter it 16 points. You keep your course if you are going round the bend of a river although you are altering it to follow the bend. You keep your speed although you stop to pick up a pilot. It follows that if you are crossing the tide your course is to keep diverging: and, therefore, according to the authorities, you are keeping your course although you are continually porting.”

64. To this we would add two observations. First the “object you had in view” must be reasonably apparent to the give-way vessel, if the purpose of the obligation to keep course and speed, as explained in The Roanoke, is to have effect. Secondly, the “object … in view” must include, or take account of, the stand-on vessel’s obligation to comply with the other provisions of the Rules. This may include avoiding a collision with a third vessel, which may be approaching the stand-on vessel head-on, or complying with the narrow channel rule in rule 9(a) to keep to the starboard side of the channel, as is implicit in Scrutton LJ’s example of turning to follow a bend in a river.

65. Mention must now be made of rule 2 which, as a rule within Part A, is of general application. It is headed “Responsibility” and provides:

“(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.”

66. Attempt was made by the respondent to use rule 2 as the basis for justifying a complete dis-application of the crossing rules as a matter of construction, on the basis of an apparent conflict with the rules of good seamanship, or to treat good seamanship on its own as a sufficient alternative to the application of the crossing rules, in relation to both the questions before the court. We regard this approach to rule 2 as being misconceived. First, it is plain from rule 2(a) that compliance with the Rules is a first principle of good seamanship. The same priority appears in rule 8(a). As stated in Marsden & Gault on Collisions at Sea, 14th ed, para 5-103, rule 2(a) “merely reminds seamen of the adverse consequences of failure to comply with the rules or with the practice of good seamanship”. In The Queen Mary ([1949] 82 Ll L Rep 303, 341), Lord MacDermott said:

“In my opinion, it is not aimed at authorising departure from the regulations, and I doubt if it is more than a solemn warning that compliance therewith does not terminate the ever present duty of using reasonable skill and care.”

67. Secondly, rule 2(b) builds in an inherent flexibility to meet particular dangers and special circumstances which points away from an approach which simply disapplies a Rule as a matter of construction because, on particular facts, strict compliance may give rise to difficulties. Rule 2(b) contemplates not the disapplication of a Rule as a matter of construction, but justifies a limited departure from its requirements, and only in particular circumstances which meet the stern test of necessity to avoid immediate danger. As stated at para 5-127 in Marsden and Gault on Collisions at Sea, 14th ed (2016), citing The Concordia and Esther (1866) LR 1 A & E 93:

“To justify a departure from the regulations which is alleged to have been necessary to avoid immediate danger, there must be clear proof that an adherence to them would have caused such danger, and the action taken must be in accordance with the requirements of good seamanship.”

68. Returning to the place of the crossing rules within the scheme of the Rules as a whole, the analysis thus far suggests the following. First, the crossing rules lie at the heart of the scheme for avoiding collisions where two moving vessels are approaching each other on a steady bearing (other than dead ahead or astern) and are thereby at risk of collision. They apply wherever the vessels are not head-on and one is not overtaking the other. Both those exceptions are precisely defined. Since the obvious purpose of the crossing rules is to prevent collisions in such circumstances it follows that, as a matter of construction, they should not lightly be treated as inapplicable. On the contrary they should be applied unless there is some necessity to do otherwise. This was stated as a principle by Lord Wright in The Alcoa Rambler at p 250 (at a time when the crossing rules were contained in articles 19 and 21 of the then Collision Regulations):

“… wherever possible articles 19 and 21 ought to be applied and strictly enforced because they tend to secure safe navigation.”

69. Secondly, a perceived tension between the obligation of the stand-on vessel under the crossing rules to keep her course and speed and the obligation of that vessel to comply with some other rule is unlikely to be a good reason for treating the crossing rules as wholly disapplied. Rather that tension is more likely, and appropriately, to be resolved by treating the stand-on obligation as moulded for the purpose of permitting compliance with the other rule, leaving the give-way vessel’s obligation to keep well clear in full force. This is reinforced by rule 17(d).

70. Thirdly, the Rules are generally explicit about the effect of one rule upon another. If one Rule (here the crossing rules) is to be treated as ousted by another Rule (here the narrow channel rules) in the absence of any express provision to that effect, and there is none, then that ouster should be strictly limited to the minimum strictly necessary to avoid danger or uncertainty. An apparent tension with the dictates of good seamanship is no sufficient substitute.

71. The advent of radar, ARPA (Automatic Radar Plotting Aid) and AIS (Automatic Identification System) where fitted, operational and actually being used, greatly increases the ability of those navigating vessels to anticipate the risk of a collision. Radar was in general use on most commercial vessels, but not on many yachts, when the Collision Regulations took their current form in 1972. In its simplest form it provides a bearing of another vessel in much the same way as a compass, but also provides accurate ranging, so as reliably to inform one vessel when another is approaching. Radar may, if effectively used, also provide further information. For example, when “targeted” on a particular vessel, ARPA will, based on radar information, generate its course made good (ie over the ground) and can be set to provide a collision warning. AIS is based not on radar but on the GPS system. When in operation it transmits a vessel’s name, position, course and speed, whence it can be received by other AIS fitted vessels and, again, used to generate its range and bearing, and also its likely course, CPA (closest point of approach) and even an audible collision warning.

144. In our view the East-West scenario demonstrates why the crossing rules need to govern that crossing situation. The vessel approaching from the East will have to cross the line of the channel before she can turn to port to shape a course to get to her starboard side of it, taking her across the bows of the vessel leaving the channel. The narrow channel rules therefore do nothing to help either vessel avoid a collision, still less do they explain which vessel should keep clear of the other. If the crossing rules do not apply, then the risk of collision inherent in their approaching each other on a steady bearing is not addressed by any Rule.

145. We would therefore answer Question 1 in the negative. Where an outbound vessel in a narrow channel is crossing with an approaching vessel so as to involve a risk of collision, the crossing rules are not overridden by the narrow channel rules merely because the approaching vessel is intending and preparing to enter the narrow channel. The crossing rules are only overridden if and when the approaching vessel is shaping to enter, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.

IX	Disposition

146. The result of our negative answer to both the questions before the court is that the crossing rules did apply to ALEXANDRA 1 and EVER SMART for the whole of the relevant period of just under half an hour before their collision. We would accordingly allow the appeal.

147. But it by no means necessarily follows that this should result in some different apportionment of liability for the damage, or even responsibility for the collision having occurred and it was the respondent’s case that it should make no difference.

148. Neither of the parties has however asked this court to re-consider the apportionment of blame or liability, if minded to allow the appeal on the two questions of construction. Rather, they would prefer to have all matters of apportionment to be re-determined if necessary by the Admiralty Court. We agree that this would be the best course. Although Teare J has retired from full-time sitting, it would be appropriate for him to undertake that task, if available and willing to do so.

ANNEXE A

Chart of vessels’ movements: (see para 10)

Key: blue= EVER SMART mauve= ALEXANDRA 1

JUDGMENT

Evergreen Marine (UK) Limited (Appellant) v

Nautical Challenge Ltd (Respondent)

before

Lord Lloyd-Jones

Lord Briggs Lady Arden

Lord Hamblen Lord Burrows

Nautical Assessors
Captain Nigel Palmer OBE MNM

Commander Nigel Hare RN

JUDGMENT GIVEN ON

19 February 2021

Heard on 5 and 6 October 2020