By Craig Dunford QC
19 February 2021
UK SUPREME COURT DECIDES ITS FIRST EVER NAUTICAL COLLISION CASE
In the first nautical collision case to come before it, the UK Supreme Court, in a judgement handed down on 19 February 2021, has allowed an appeal on (to use the words in the opening part of the judgement itself) “…two important questions of construction of the International Regulations for Preventing Collisions at Sea 1972 as amended (“the Collision Regulations”). Both questions relate to the application of the “crossing rules”, as set out in rules 15-17 of the Collision Regulations. These rules apply where two powerdriven vessels are crossing so as to involve a risk of collision. They require the vessel which has the other on her starboard side to keep out of the way (the “give-way vessel”) whilst the other vessel is required to keep her course and speed (the “standon vessel”). They are of cardinal importance to the safety of navigation”.
The case is Evergreen Marine (UK) Ltd v Nautical Challenge Ltd  UKSC 6. The first instance decision had been delivered by Teare J in Nautical Challenge Ltd v Evergreen Marine (UK) Ltd  EWHC 453 (Admlty), and it was subsequently upheld by the Court of Appeal (sub nom Evergreen Marine (UK) Ltd v Nautical Challenge Ltd  EWCA Civ 2173).
The brief facts were these. A collision between Evergreen’s vessel (“Ever Smart”) and Nautical Challenge’s vessel (“Alexandra 1”) occurred on 11 February 2015 just outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the UAE. Alexandra 1 was inbound; Ever Smart was outward bound. The damage suffered by Alexandra 1 amounted to over US$9.3 million and the damage suffered by Ever Smart amounted to over US$2.5 million.
At first instance, Teare J held that Ever Smart should bear 80% of the liability for the collision and Alexandra 1 should bear 20%. He held that the crossing rules (Rules 15-17 of the International Regulations for Preventing Collisions at Sea 1972 (as amended) (“the Regulations”)) did not apply and therefore that Alexandra 1 had not navigated in breach of Rule 16 of the Regulations, the “crossing rule”, which was said by Evergreen to have applied to the Alexandra 1. The Court of Appeal, in dismissing Evergreen’s appeal, essentially adopted Teare J’s reasoning in its entirety. Evergreen brought a further appeal before the UK Supreme Court. This appeal was heard on 5 and 6 October 2020, and the submissions of Evergreen’s counsel (Simon Rainey QC, who did not appear in either of the lower courts) focussed largely on Teare J’s analysis and conclusions, given that the Court of Appeal had essentially repeated and approved them in its own decision.
The first question for the Supreme Court was whether the crossing rules were actually engaged if the putative give-way vessel was on a steady course. The Supreme Court held that there was no “steady course” requirement, based upon practical considerations and the language and context of the crossing rules themselves. To hold that the crossing rules did not apply would amount to a gap in the Collision Regulations, which it was not apt to be left to be filled simply by applying the principles of good seamanship enshrined in rule 2. The Supreme Court also considered and explained the key case in this area, namely the decision of the Privy Council in “The Alcoa Rambler”  AC 236.
Having held (contrary to the decisions of both lower courts) that the crossing rules were engaged in this case, the Supreme Court then considered the interplay between them and the narrow channel rules. The courts below had held that the narrow channel rules displaced the crossing rules, relying on The Canberra Star  1 Lloyd’s Rep 24 and Kulemesin v HKSAR  16 HKCFA 195. However, these cases concerned a vessel intending to enter and on her final approach to the entrance, shaping her course to arrive at the starboard side of it. They did not apply where the approaching vessel was waiting to enter rather than entering. The crossing rules should not be overridden in the absence of express stipulation, unless there is a compelling necessity to do.
On the facts of this case, the crossing rules had applied and Alexandra 1, as the giveway vessel, was obliged to take early and substantial action to keep well clear of Ever Smart. The Supreme Court therefore allowed the appeal, the result of which is that the High Court will now need to redetermine the apportionment of liability between the two parties.