UK: Application of the Crossing Rules When in Proximity to a Narrow Channel or Fairway, and the "Alexandra 1"

In March this year the Admiralty Court in London handed down its judgment in respect of a collision between "Alexandra 1" ("A1") and "Ever Smart" ("ES") (see: Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2017] EWHC 453 (Admlty)). This blog takes a look at the judgment, which serves to clarify the positon on the obligations on vessels arising under certain rules provided in the International Regulations for Preventing Collisions at Sea, 1972 (the 'Collision Regulations').

Ordinarily, when two vessels are crossing so as to involve risk of collision, the vessels, barring the contrary application of any local special rules, are required to navigate in accordance with the Collision Regulations, and in particular, when in sight of one another, Rule 15 (crossing situations), Rule 16 (action by give-way vessel) and Rule 17 (action by stand-on vessel).

  • Rule 15 provides that: "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 provides that: "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 provides that:

"(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."

Where one or both vessels fail to navigate in accordance with these Rules the give-way vessel will usually bear the preponderance of blame for the collision for failing to give-way.

Reported cases suggest that in most straightforward crossing situations, the stand-on vessel which has failed to navigate in accordance with these rules, will usually bear in the region of 20% to 30% of the blame: see for example: The Topaz [2003] 2 Lloyd's Rep. 18; The Lok Vivek and Common Venture [1995] 2 Lloyd's Rep. 230; The Angelic Spirit [1994] 2 Lloyd's Rep. 595.

However, there are circumstances where Rule 15 is found not to apply, notwithstanding that the vessels are crossing so as to involve risk of collision.  The Court's judgment in respect of the collision between A1 and ES is authority for one such circumstance.

A1 and ES collided outside the port of Jebel Ali in the UAE.  Essentially, ES was proceeding in a NW'ly direction outbound along the dredged entrance/exit channel. A1 was proceeding in an ESE'ly direction towards the entrance of the same dredged channel.

The dredged channel was agreed to be narrow for the purposes of Rule 9 of the Collision Regulations.

Rule 9 (narrow channels) provides (inter alia) that:

"(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."

ES interests submitted that the two vessels were crossing so as to involve risk of collision and that A1 was under a duty to keep out of the way of ES, pursuant to Rule 15.  A1 interests contended that Rule 15 had very limited, if any, application to questions of navigation in and around a narrow channel (within the ambit of Rule 9) and in particular did not apply to a vessel navigating in a narrow channel and a vessel navigating towards that channel in preparation for entering it.

In apportioning liability 80:20 against ES (the stand-on vessel had Rule 15 applied), the Court determined that both vessels were at fault but concluded that "rule 15 of the Collision Regulations, the crossing rule, did not bind ALEXANDRA 1 when she approached the dredged channel... and so she was not under a duty to keep out of the way of EVER SMART.  Her duty, as a matter of good seamanship... was to navigate in such a manner that, when she reached the channel, she would be on the starboard side of the channel in accordance with rule 9."

The rationale for finding that A1, in the circumstances, was not bound by Rule 15 was also provided.  The Court found that "To have two sets of rules with different requirements applying at the same time is of course unsafe and cannot have been intended by those who drafted the Collision Regulations. Similarly, where one vessel is within a narrow channel and has a vessel on her port bow on a crossing course outside the channel but proceeding towards it in preparation for entering it, the vessel in the narrow channel cannot be under a duty (pursuant to the crossing rules) to maintain her course and speed and at the same time under a duty (pursuant to the narrow channel rule) to keep to the starboard side of the channel since the two duties may, depending upon the circumstances, require different action."

This judgment provides clear authority on the relationship between the obligations on vessels arising under Rules 9 and 15 of the Collision Regulations and also on other factors relevant to collision actions before the Court.  There are three factors, in particular, worth bearing in mind.

  1. The alternative submission by A1 interests that, even if the obligations upon the vessels pursuant to Rule 9 did not take precedence in these circumstances, Rule 15 was nonetheless inapplicable to A1 as, whilst she was crossing so as to involve risk of collision, she was not on a sufficiently steady course to enable ES to determine that A1 was crossing. In support of this submission, the Court found that the heading of A1 varied by nearly 30° whilst she was picking up her pilot, which Teare J. found "difficult to describe... as a course [but rather] as maintaining a broadly east or east south easterly heading as she waited for the pilot to approach."  This serves as a reminder, therefore, of earlier established principles that, for the crossing rule (now Rule 15) to apply, the vessels must also be on suitably well-defined courses (see: The Alcoa Rambler [1949] A.C. 236).
  2. The confirmation of the much tested obligation of keeping a good lookout pursuant to Rule 5 of the Collision Regulations.  This Rule requires all vessels at all times to maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions.  That it was found by the Court that the Master on A1 misheard a VHF radio communication, which was held to be causative on the basis that A1 would, but for this fault, have taken successful avoiding action, is authority for the importance of aural lookout.
  3. The criticism the parties faced by failing to agree, prior to commencement of the trial, a transcript of the audio recorded by the Voyage Data Recorders ("VDRs") on the vessels. In this regard, Teare J said: "The trial was, however, disrupted by the need for the parties to agree a transcript and, where necessary, a translation of the audio record of what was said or heard on the bridge of each vessel. This ought to have been agreed long before the start of the trial. It is important for parties to inform the court at the case management conference of what electronic records there are so that appropriate orders can be made so as to ensure that there is an agreed interpretation of all relevant records before the commencement of the trial. Audio records from the bridge of a vessel are obviously relevant and important records."

In connection to the evidence, criticism was also made of the state of the witness statements before the Court.  For example, ES interests failed to produce a witness statement signed by their Master.  On this, and referring to an unsigned witness summary of the Master, Teare J. said "Although it was unsigned I was invited to read it and so it was put in evidence. But of course it cannot have the weight of a signed statement."  Criticism, such as this, indicates that, whilst data recorded by VDRs carry a high degree of evidential value, witness evidence can still be vitally important in explaining why certain events have occurred as well as recording facts such as the state of visibility; and thus the need for such evidence cannot be ruled out merely by confirmation that the VDRs data has been preserved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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