Supreme Court hands down judgment in its first collision case

Facts
Lower court decisions
Supreme Court decision
Comment

The Collision Regulations are the 'rules of the road' for mariners navigating vessels worldwide. Historically, English law has played an extensive role in shaping their interpretation and understanding. However, it has been nearly 50 years since a case involving their interpretation has reached the jurisdiction's highest court. This changed recently when the Supreme Court handed down judgment in Evergreen Marine (UK) Limited v Nautical Challenge Ltd ([2021] UKSC 6).

Facts

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

Lower court decisions

At first instance, the issue for the court was whether the crossing rules were overridden by the narrow channel rule. It is well known that the narrow channel rule (Rule 9 of the Collision Regulations) requires a vessel proceeding along a narrow channel to keep to the starboard side of it. The crossing rules (Rules 15 to 17 of the Collision Regulations) apply where two power-driven vessels are crossing so as to involve a risk of collision. They require the vessel which has the other vessel to its starboard side to keep out of the way (the give-way vessel) while the other vessel is required to keep its course and speed (the stand-on vessel).

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

Further, he found that it could not have been intended by those who drafted the Collision Regulations that two sets of rules (ie, the narrow channel rule and the crossing rules) would apply at the same time. That would be confusing and not in the interests of safety. Lastly, he held that Alexandra 1 had not been on a sufficiently defined course for the crossing rules to apply in any event.

The Court of Appeal agreed.

Supreme Court decision

Ever Smart's owners appealed and asked the Supreme Court to answer the following questions:

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

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

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

Question one
The court considered this question by referring to three broad groups of cases:

• vessels which are approaching the entrance of the narrow channel, heading across it but not intending to enter it. It was common ground between the parties that the crossing rules apply here (group one);
• vessels intending to enter and on their final approach to the entrance, adjusting their course to arrive at their starboard side of a narrow channel. In this situation, it was common ground between the parties that the narrow channel rule applies and not the crossing rules (group two); and
• vessels approaching the entrance to the channel which are intending and preparing to enter but are waiting to enter rather than being on their final approach (group three). This was the situation in which the Alexandra 1 found itself. In these circumstances, the Supreme Court held that the crossing rules apply and are not excluded by the narrow channel rule.

The Supreme Court had three primary reasons for reaching this conclusion:

• The crossing rules should apply wherever they can and should not be overridden in the absence of an express stipulation unless there is a compelling necessity to do so. There is no necessity to disapply the crossing rules in cases pertaining to group three.
• If the crossing rules are to be overridden, it must be clear to those navigating the vessels when this is to take place. If the test for the disapplication of the crossing rules was that the vessel was intending and preparing to enter the narrow channel, this would not be clear enough. As stated by the court: "how is the [outbound] vessel to know what the approaching vessel is intending, or what preparations she may be making?" Accordingly, overriding the crossing rules only when the approaching vessel is "shaping to enter the channel, adjusting her course so as to reach the entrance on the starboard side of it, on her final approach" is a preferable test, as that can be readily determined by the outbound vessel either by visual or radar observation of the approaching vessel's course and speed.
• By disapplying the crossing rules only when the approaching vessel is shaping to enter the channel, adjusting its course so as to reach the entrance on the starboard side of it, on its final approach, instead of merely intending and preparing to enter the narrow channel, the crossing rules will be overridden in fewer cases.

Comment

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

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

For further information on this topic please contact Chris Grieveson, Matt Berry or Matthew Alker at Wikborg Rein by telephone (+44 20 7367 0300) or email (cjg@wrco.co.uk, mat@wrco.co.uk or maa@wrco.co.uk). The Wikborg Rein website can be accessed at www.wr.no.