On 19 February 2021 the Supreme Court delivered its very first judgment in relation to a collision action. While the Supreme Court was only established in 2009, it is almost half a century since the highest appellate court in England and Wales has decided such a matter. In this eagerly anticipated decision, the Court had to consider the application of the International Regulations For Preventing Collisions At Sea 1972 (the ‘COLREGS’), in relation to a collision between the 7.030 TEU container ship Ever Smart and the laden 153,044 DWT VLCC Alexandra 1 off the dredged access channel to Jebel Ali in the late evening of 11 February 2015.
Bump in the Night
The chart extract below is annexed to the Supreme Court’s judgment, showing the tracks of the two vessels leading up to the collision. The access channel to Jebel Ali is orientated on a NW-SE axis and is construed as a “narrow channel” in accordance with Rule 9 of the COLREGS.
The Ever Smart was outbound from the port, heading in a NW’ly direction with a pilot onboard. Weather conditions were benign and the visibility was reported to be good. Approximately six minutes before the collision (C-6) the pilot disembarked from Ever Smart into a pilot boat. Before leaving the bridge, the pilot advised the master to navigate carefully at the entrance to the channel as there was an inbound tanker waiting at the entrance. When the pilot boat was clear, the master of the Ever Smart put the bridge telegraph to full sea speed.
Alexandra 1 entered the pilot boarding area (marked on the chart by a dashed circle) at approximately C-27 and started to slow down in anticipation of picking up a pilot for her inbound passage. Port Control had advised Alexandra 1 that her pilot was onboard the outbound Ever Smart, and that she should not enter the channel until Ever Smart was clear. Alexandra 1 stopped her engines and allowed her speed to drop off, with occasional helm and engine movements used to maintain the vessel on an approximately ESE’ly heading.
Ever Smart continued her passage up the narrow channel on a course of 316°, increasing speed to 12.4 knots. She was not keeping to the starboard side of the channel, but maintaining a position close to the centreline. Alexandra 1 was heading 101° with a speed of approximately 2.4 knots. Ever Smart had not acquired Alexandra 1 on its radars and only sighted her visually just before the collision. Despite last minute attempts to avoid a collision by both vessels, the port bow of Ever Smart struck the starboard bow of Alexandra 1 just outside the entrance to the channel.
Both vessels sustained significant damage, resulting in Alexandra 1 claiming USD9,308,594.71 in losses and Ever Smart seeking USD2,531,373.71.
Decisions of the Admiralty Court and the Court of Appeal
The case was heard at first instance by the Admiralty Court in early 2017. You can read our summary of that judgment here. The Court had to determine whether the narrow channel rule (Rule 9) took priority over the crossing rules (Rules 15 – 17) as between a vessel proceeding outbound from a narrow channel and a vessel waiting to enter the channel.
Rule 9 requires vessels proceeding along the course of a narrow channel to keep as near to the outer limit of the channel which lies on her starboard side as possible. The crossing rules dictate that when two vessels are crossing so as to involve a risk of collision, the vessel which has the other on her own starboard side shall keep out of the way. In a crossing situation, the stand-on vessel is initially required to maintain her course and speed.
Had the crossing rules applied, Alexandra 1 would have been the give-way vessel. However, the judge held that the crossing rules did not apply. He reasoned that there should be no conflict between the application of different rules. For example, if a vessel outbound from a narrow channel is the stand-on vessel in a crossing situation, she is required to keep her course and speed, which may be inconsistent with her obligation to keep to the starboard side of the channel, particularly if the narrow channel does not follow a straight line.
The judge also accepted the argument that the crossing rules did not apply as Alexandra 1 was not on a sufficiently defined course. The judge acknowledged that she had adopted various headings, fluctuating between 081° and 127°, in the twenty or so minutes before the collision.
Having found that the crossing rules did not apply, which meant that the Alexandra 1 was not the give-way vessel, the judge considered the respective faults and causative potency of each vessel. While there were faults on both sides, the judge found that the Ever Smart was particularly culpable for proceeding at excessive speed down the middle of the narrow channel. Accordingly, he apportioned liability 80:20 in favour of Alexandra 1.
Setting aside legal costs, and subject to scrutinizing the respective quantum claims, this outcome would have resulted in Alexandra 1 receiving a net payment of almost USD7m. Ever Smart interests appealed, although the judgment of the Admiralty Court was upheld by the Court of Appeal in 2019. Our summary of the decision can be viewed here.
Ever Smart interests appealed again…
Decision of the Supreme Court
The Supreme Court was asked to consider two questions:
- On the proper construction of the COLREGS, 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?
- On the proper construction of the COLREGS, 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 applied?
The Court turned its attention to the second question first. It started by setting out a useful summary of the terms ‘course’, ‘heading’, and ‘bearing’ (see paragraphs 47 to 55), which are often used interchangeably but have distinct and important meanings.
The Court rejected the contention that it was necessary to import a ‘steady course’ requirement into the crossing rules. It was sufficient that two vessels were approaching each other on intersecting courses with a steady bearing between them, denoting that a risk of collision existed. There was no additional requirement that the give-way vessel had to be on a steady course.
They also added that there was no inconsistency in the COLREGS insofar as the stand-on vessel’s obligation to maintain her course and speed, as this was not absolute. If vessels remain on a steady bearing, so as to involve a risk of collision, despite either vessel adjusting its course or speed, the crossing rules will apply.
Turning to the first question, the Court canvassed the authorities that deal with the application of the crossing rules. They confirmed that the crossing rules can apply to vessels navigating within a narrow channel, in circumstances where two narrow channels intersect. They also identified three distinct groups of cases where it was necessary to delineate between the application of the crossing rules and the narrow channel rule:
Group 1 – Vessels which are approaching the entrance of the channel, heading across it, on a route between start and finishing points unconnected with the narrow channel. They are approaching the entrance of the channel, but not intending or preparing to enter it all.
The Court held that in these circumstances the narrow channel rule is not engaged and vessels navigating so as to involve a risk of collision should apply the crossing rules.
Group 2 – Vessels which are intending to enter, and on their final approach to the entrance, adjusting their course to arrive at their starboard side of it.
The Court held that the narrow channel rule applies in circumstances where the inbound vessel is on her final approach to the channel entrance and shaping to enter it on its starboard side. Any outbound vessel should also maintain a position to her starboard side of the channel, allowing both vessels to pass each other safely.
Group 3 – Approaching vessels which are also intending and preparing to enter, but are waiting to enter rather than entering. They may be stationary, or moving, although still waiting to enter.
The Supreme Court found that the collision between the Ever Smart and Alexandra 1 fell into this category. Overturning the previous rulings, it held that the crossing rules do apply and nothing within the COLREGS alleviates the give-way vessel (here Alexandra 1) from its obligation to keep out of the way of the stand-on vessel (here Ever Smart) simply because it is stopped or moving slowly through the water.
The circumstances leading to the collision between Ever Smart and Alexandra 1 were not unusual. Masters around the world frequently face the challenge of arriving at a pilot boarding area, often in congested waters, at slow speed in anticipation of picking up a pilot. This can be extremely difficult, particularly for large laden vessels that are unresponsive at slow speeds. Any delay in the pilot boarding can cause difficulty if the inbound vessel is already within or approaching the pilot boarding area.
This judgment provides welcome clarity on the obligations between vessels arriving and departing from port via a narrow channel. It is now clear that the give-way vessel in a Group 3 crossing situation will not be absolved of their obligation to keep clear simply because they are almost stationary or slaloming erratically towards a pilot boarding area. This applies equally to vessels meeting in the middle of the ocean. The vessel with the other on a steady bearing on its starboard side must remain vigilant and capable of taking decisive action in good time to avoid collision.
The Group 2 characterisation is, however, perhaps less definitive. There is an inherent element of subjectivity which is likely to provide lawyers with fertile ground to argue that a particular scenario falls within Group 3, rather than 2, or vice versa. This will provide no assistance to mariners faced with conning vessels through these hazardous waters.
As the Court highlights, the COLREGS are ubiquitous and it is of critical importance that they are widely understood within the industry. There is no express provision for when the narrow channel rule will eclipse the crossing rules, so great reliance must be placed on mariners having a unified awareness of how the COLREGS are to be interpreted and applied. It is questionable, however, to what extent the international marine community will digest a lengthy English court judgment drawing out these neat distinctions.
The Supreme Court has remitted this case back to the Admiralty Court to reconsider the apportionment of liability on the basis that the crossing rules did apply, with Alexander 1 being the give-way vessel. We would be surprised if this does not lead to a significant rebalancing of the apportionment of liability, given that the give-way vessel in a crossing situation ordinarily attracts the preponderance of liability.
In the coming months, the Supreme Court will consider another case stemming from a marine casualty, when the CMA CGM Libra appeal is heard. This relates to the grounding of a large container ship and whether the passage plan made the vessel unseaworthy prior to the commencement of its voyage. Reed Smith will be acting for the appellant ship owners.