In a recent case of interest, the Admiralty Court decided that the crossing rule did not apply where one vessel was navigating within a channel and another vessel was approaching the entrance to that channel with a view to embarking a pilot and then entering it. Instead it was held that the narrow channel rule should apply and take priority.
In February 2015, a collision occurred between the claimant’s laden VLCC, ALEXANDRA 1 (“Vessel A”) and the defendant’s laden container vessel, EVER SMART (“Vessel B”) just outside the long dredged channel leading to Jebel Ali. B was coming out of a narrow channel while A was entering. B was approaching A on the latter’s starboard bow. The port bow of B struck the starboard bow of A at an angle of about 40 degrees. The collision was at night but there were clear skies and good visibility.
The damage suffered by A was said to amount to over USD32m whereas the damage suffered by B amounted to some USD4m.
The principal dispute was whether the crossing rule, rule 15 of the Collision Regulations, applied. This rule provides that when crossing, the vessel that has the other vessel on her starboard side must take early and substantial action to keep out of the way, or ‘give way’. The other vessel is known as the ‘stand on’ vessel and is under a duty to maintain her course and speed, although she is permitted to take action to avoid a collision when it becomes apparent to her that the give way vessel is not taking action in accordance with the Collision Regulations. In accordance with the crossing rule, since A had B on her starboard bow, A was the give way vessel and B the stand on vessel.
However, the narrow channel rule, rule 9 of the Collision Regulations, provides that a vessel proceeding along the course of a narrow channel must keep as near to the outer limit of the channel which lies on her starboard side as is safe and practicable. In accordance with the narrow channel rule, B must manoeuvre so as to pass A safely port to port.
Which rule takes priority?
Mr Justice Teare held that the narrow channel rule took priority in line with the Hong Kong Court of Final Appeal’s decision in Kulemesin v HKSAR [2013] 16 HKCFA 195. A similar fact scenario was considered in Kulemesin v HKSAR where Lord Clarke held that a vessel navigating in the narrow channel was bound by the narrow channel rule and not by the crossing rule. Mr Justice Teare similarly found that A was not bound by the crossing rule when she approached the dredged channel and so she was not under a duty to keep out of the way of B. 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 the narrow channel rule. The fact that she had to embark a pilot did not absolve her from that duty.
Liability was found overwhelmingly in favour of A. The claimants secured an 80:20 apportionment in their favour which leaves B facing a pay out of some USD25M on the single liability principle, although we understand that quantum is still in issue. It is not known if sealed offers were made in the proceedings but, on any basis, it seems likely that B will also have to pay the majority of the substantial trial costs incurred by A.
The full citation of this case is Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2017] EWHC 453 (Admlty) (13 March 2017). The judgment provides a useful summary of the various English precedents on the application of the crossing rule in the vicinity of a narrow channel.
