UK: The narrow channel rule and the crossing rule collide – Evergreen Marine v Nautical Challenge

Summary

One of the dilemmas facing Masters and bridge watch keepers is what to do when faced with a situation where the ship's obligations under the Collision Regulations (Colregs) appear to conflict.

The UK Court of Appeal recently clarified one such dilemma in the case of Evergreen Marine v Nautical Challenge 1 when it upheld the first instance judgment of the Admiralty Judge Nigel Teare QC (sitting with Elder Brethren Captain Stephen Gobbi and Captain Nigel Hope as Nautical Assessors). The decision of the Court of Appeal (Lords Justices Gross, Levison and Leggatt) provides clear guidance on the interaction (and interpretation) of the crossing rule (Rule 15) and narrow channel rule (Rule 9) in circumstances when they appear to conflict.

Although fact dependent, in circumstances where one vessel is approaching a narrow channel so as to enter into it, and another vessel is transiting outbound from the same channel, the decision clarifies that the narrow channel rule, which requires that each vessel be positioned to keep as near to the side of the channel on its starboard side as possible, will be applied and in the event of conflict the crossing rule disapplied. In particular, the crossing rule will not relieve a vessel from liability in circumstances where it has breached the narrow channel rule.

The Court of Appeal's decision also confirms the judicial approach to the apportionment of liability; particularly in respect of 'causative potency' and the increased culpability as a result of excessive speed.

Background

Shortly before midnight on 11 February 2015, a serious collision occurred outside the dredged channel to the port of Jebel Ali (UAE) between Alexandra 1, a VLCC described by its master as "a hog on ice with no skates" and Ever Smart, a container ship which was "a Mercedes" in comparison. There were clear night skies and good visibility of 10-12 miles. The wind was force 3 and blowing easterly to east north easterly.

Ever Smart was proceeding in a north westerly direction outbound along the approach channel and had just disembarked her pilot. Alexandra 1 was waiting to embark the same pilot in the designated pilot boarding area at the NW end of the channel such that Ever Smart was on her starboard bow. 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 the time of the collision the speed of Ever Smart was 12.4 knots, whereas the speed of Alexandra 1 was 2.4 knots.

The collision caused ships amounted to over US$35 million in damage to the two ships, prompting both parties to claim that the other was at fault.

Decision at first instance

The principal dispute between the parties was whether, for the purposes of the Colregs, Rule 15 or Rule 9 applied in the circumstance.

Counsel for Ever Smart argued that Rule 15 (crossing situation) applied; requiring that Alexandra 1 (travelling on an Easterly course with Ever Smart on her starboard side) keep out of the way of, and avoid crossing ahead of, Ever Smart.

Counsel for Alexandra 1 conversely argued that Rule 15 had no application in a situation where one vessel was navigating along a narrow channel and another vessel was navigating towards that channel with a view to entering it. In such circumstances, Rule 9 should apply which would require that Ever Smart keep to the outer limit of the channel to her starboard side so far as is safe and practicable, and had it done so this would have avoided the collision.

At first instance, Teare J held that Rule 15 did not bind Alexandra 1 when she approached the narrow channel leading to Jebel Ali because she was not on a sufficiently constant direction or heading to be on a course at the relevant time and, consequently, that Alexandra 1 was not under a duty to keep out of the way of Ever Smart.

Teare J concluded that, as a matter of good seamanship, Alexandra 1 was under a duty to navigate in such a manner that, when she reached the channel, she would be on the starboard side in accordance with Rule 9. In consultation with Captain Stephen Gobbi and Captain Nigel Hope, Teare J also concluded that Alexandra 1 had acted reasonably and in good seamanship by approaching the first buoys (marking the end of the approach channel) and keeping close to her own (starboard) side of the entrance channel whilst Ever Smart was still in the channel; subject to keeping good aural and visual lookout.

Ever Smart was therefore at fault due to in respect of:

  1. breaching Rule 9 of the Colregs by not keeping to the starboard side of the narrow channel;
  2. keeping a defective radar and visual lookout (Rule 5) and making assumptions on the basis of scanty information (Rule 7); and
  3. proceeding at an excessive speed, a direct consequence of her failure to keep a good lookout.

In respect of the breach of Rule 5, Teare J accepted further advice from the Elder Brethren that Ever Smart had been at fault in not acquiring Alexandra 1 as an ARPA target, timeously or not.

Notwithstanding the various faults of Ever Smart, Alexandra 1 was found to have been at fault for failing to keep a good aural lookout (Rule 5), leading to its misunderstanding of a VHF conversation between Port Control and a local tug, whereby Alexandra 1 believed that Ever Smart was being told to go around the 'waiting tanker' (Alexandra 1) when in actual fact this command was being directed to the local tug and not Ever Smart.

In apportioning liability between the parties (given that both vessels were found to be at fault), Teare J employed the principle of 'causative potency'2 and adjudged that although both parties contributed to the fact that the collision occurred (for their respective failures to comply with the Colregs), Ever Smart had contributed far more to the damage sustained from the collision as a result of her excessive speed. Teare J therefore held that the causative potency of Ever Smart's fault was greater than that of Alexandra 1 and found Ever Smart to be 80 per cent liable for the collision.

Counsel for Ever Smart appealed this decision.

Decision on appeal

The principal issues on appeal concerning seamanship were as follows:

  1. Issue 1: the applicability of the crossing rule; and
  2. Issue 2: the application of the principle of causative potency.

With regard to Issue 1, Lord Justice Gross giving the leading judgment for the Court of Appeal agreed with Teare J's conclusion that Rule 15 did not apply in the circumstances.

Whilst Alexandra 1 had been proceeding at slow speed in a broadly east south easterly direction towards the entrance of the channel, Gross LJ noted that her course made good varied between 84 and 112 degrees and, as such, Alexandra 1 could not be considered to have been 'on a course' for the purposes of Rules 15 and 17 of the Colregs. Acknowledging that the Colregs are practical rules having, as their primary object, the prevention of collisions at sea, the Court of Appeal was satisfied that the navigation of Ever Smart was governed by Rule 9, and the approach of Alexandra 1 was governed by the principles of good seamanship; having regard for the requirements of Rule 9.

Counsel for Ever Smart had argued that Teare J's conclusion had not been stress-tested in a hypothetical scenario in which the inbound vessel was approaching from East-West as opposed to West-East (an East-West Scenario) and that, absent the application of Rule 15, there was subsequently no clarity as to priority, putting safety at risk.

Given that this submission raised a question of seamanship, the Court of Appeal sought independent advice from Elder Brethren Rear Admiral David Snelson and Captain Duncan Glass, acting as Nautical Assessors. The Elder Brethren advised that in an East-West Scenario, a prudent mariner in an outbound vessel from Jebel Ali would, amongst other things, keep a sharp look out, ensure compliance with Rule 9, proceed at a safe speed and use VHF to contact the incoming vessel to advise on its own intentions.

Although the Court of Appeal was not strictly required to determine the applicability of the rules in an East-West Scenario, Gross LJ accepted the advice of the Elder Brethren as to the actions of a prudent mariner in an East-West Scenario and was amply satisfied that the East-West scenario did not undermine the first instance judgment on the actual West-East encounter. Likewise, Gross LJ accepted the earlier advice as to the good seamanship of Alexandra 1 in approaching buoys no.1 whilst Ever Smart was still in the approach channel. No doubt, the fact that the Alexandra 1 was approaching prudently at a speed of 2.4 knots was an important factor. The Court of Appeal therefore approved Teare J's judgment on Issue 1.

In respect of Issue 2, the Court of Appeal approved the apportionment of liability 80% against Ever Smart. Gross LJ was satisfied that Teare J was entitled to take into account the propensity of excessive speed to increase damage resulting from a casualty and had therefore been correct in adopting "a broad, commonsensical and qualitative assessment of the culpability and causative potency of both vessels". Gross LJ went further in stating that "excessive speed is a prime example of a fault likely to contribute to the extent and severity of the damage or loss suffered", confirming that speed is a key consideration to the court when apportioning liability.

Conclusion

The decision in Evergreen Marine v Nautical Challenge confirms that, in circumstances where one vessel is approaching a narrow channel so as to enter into it and another vessel is transiting outbound from the same channel, the narrow channel rule will be applied and the crossing rule will be disapplied (subject to the facts in each casualty). The crossing rule will not be applied to relieve a vessel from liability when it violated the narrow channel rule.

The decision of the Court of Appeal also highlights that, when considering the causative potency of multiple factors giving rise to a collision (and the damage resulting therefrom), the court will apportion liability against a vessel navigating at excessive speed if, following a detailed assessment, excessive speed is determined to be a contributing factor to damage and subsequent loss.

Footnotes

1 Evergreen Marine (UK) Ltd. v Nautical Challenge LTD [2018] EWCA Civ 2173

2 'Causative potency' was developed as a principle by Teare J in the earlier case of Owners and/or Demise Charteres of the Nordlake v Owners of the SeaEagle (now named Elbella) [2015] EWHC 3605

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions