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The Crossing and Narrow Channel Rules: Supreme Court delivers seminal judgment

The Crossing and Narrow Channel Rules : Supreme Court delivers seminal judgment | BDM Blog | BDM Law

Evergreen Marine (UK) Limited v Nautical Challenge Ltd [2021] UKSC 6

On 19 February 2021, the Supreme Court handed down judgment in the first appeal in a collision to come before it in almost 50 years, overturning the first instance and Court of Appeal decisions (see our previous reports here and here)

Background and issues

The collision occurred in February 2015 within the pilot boarding area, just outside the entrance of the channel to the port of Jebel Ali, UAE. In short, the large container vessel EVER SMART was proceeding along the channel outbound (NNW) and had just left the channel at the time of the collision. The laden VLCC ALEXANDRA 1 was waiting for a pilot near the channel entrance, moving slowing in an ESE direction. The ALEXANDRA 1 had not yet turned to starboard to enter the channel when the collision occurred.

The appeal to the Supreme Court concerned two issues:

    1. Whether the crossing rules are inapplicable or are to be disapplied where an outbound vessel (EVER SMART) is navigating within a narrow channel and has a vessel (ALEXANDRA 1) on a crossing course approaching the narrow channel with the intention of, and in preparation for, entering it.
    2. Whether it was necessary for the “putative give-way vessel” to be on a steady course for the crossing rules to be engaged.

Both the court of first instance and the Court of Appeal answered yes to these questions, resulting in an apportionment of liability of 80% (EVER SMART) and 20% (ALEXANDRA 1).

Supreme Court judgment

When the Supreme Court handed down judgment, before dealing with the two questions, it emphasised the international character of the Collision Regulations and their application to “mariners of all nationalities, of all types (professional and amateur), in a wide range of vessels and in worldwide waters” (see paragraphs [37-45] of the judgment). The Supreme Court also provided useful clarity on the meaning of the terms ‘heading’, ‘course’ and ‘bearing’ in the context of the Collision Regulations.

Question 2

The Supreme Court dealt with the second question first, finding that neither the give-way vessel nor the stand-on vessel had to be on a steady course for the crossing rules to be engaged. Accordingly the Lordships concluded that, subject to the first question, the crossing rules were engaged even though ALEXANDRA 1 was not on a steady course:

“…if two vessels, both moving over the ground, are crossing so as to involve risk of collision, the engagement of the crossing rules is not dependent upon the give-way vessel being on a steady course. If it is reasonably apparent to those navigating the two vessels that they are approaching each other on a steady bearing (over time) which is other than head-on, then they are indeed both crossing, and crossing so as to involve a risk of collision, even if the give-way vessel is on an erratic course. In such a case, unless the overtaking rule applies, the crossing rules will apply.” [111]

Question 1

In respect of the first question, the Court began by identifying a number of factual situations where the inter-relationship between the crossing and narrow channel rules needed to be considered:

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 at all.”

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…”

Group 3: “approaching vessels which are also intending and preparing to enter, but are waiting to enter rather than entering … ”

The Lordships held that the crossing rule would clearly apply in Group 1 cases but not in Group 2 cases. In respect of Group 3 cases, within which the present case fell because ALEXANDRA 1 had not yet shaped to enter the narrow channel on her final approach, the Court held that the crossing rules should apply. Further the Court concluded that there was no reason why the outbound vessel could not comply with both the crossing and narrow channel rules.

This detailed judgment provides welcome and helpful clarity on the application of the Collision Regulations in general and in particular on how the crossing rule in the Collision Regulations works, generally and in the context of the narrow channel rule.

The case will now return to the court of first instance for determination, by Sir Nigel Teare, as to how the Supreme Court decision impacts apportionment.

The full judgment can be found here.

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