Evergreen Marine, world famous for the blocking of the Suez Canal by the stranded container vessel “Ever Smart”, won a dispute in the Supreme Court of the UK earlier this year over the collision of its other container vessel, “Ever Smart”, with the very large crude carrier “Alexandra I”.

This is the first appeal in a collision action to come before the Supreme Court. Indeed, it is approaching 50 years since the last such appeal before the House of Lords.

The appeal raises 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 power-driven 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 “stand-on vessel”). They are of cardinal importance to the safety of navigation.

The first question which the court has been asked is whether the crossing rules are inapplicable or are 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. This concerns the inter-relationship between the crossing rules and the “narrow channel rules” – rule 9. Rule 9(a) requires vessels proceeding along the course of a narrow channel to keep as near to its starboard outer limit as is safe and practicable.

The second question which arises is whether it is necessary for the putative give-way vessel to be on a steady course for the crossing rules to be engaged. This issue was related to the fact that one of the vessels involved in the collision was moving at a very slow speed, and therefore its course changed.

Facts: The collision took place between the appellant’s large container vessel “Ever Smart” and the respondent’s very large crude carrier “Alexandra I” within the pilot boarding area, just outside the dredged entrance/exit channel to the port of Jebel Ali in the United Arab Emirates (“the channel”), on 11 February 2015.

“Ever Smart” was outbound from Jebel Ali and, until shortly before the collision, was proceeding along the channel. “Alexandra I” was the inbound vessel, and was, although not stationary, waiting in the pilot boarding area to pick up a pilot being released from “Ever Smart” before entering the channel. The channel is a “narrow channel” for the purpose of rule 9.

The Admiralty judge and the Court of Appeal answered both questions in the affirmative, with the consequence that the crossing rules were not engaged at all or, if engaged, were overridden by the narrow channel rules, and therefore “Alexandra I” was not under an obligation to keep out of the way of “Ever Smart”.

The loss and damage sustained by each vessel arising out of the collision has been determined (subject to apportionment) in the sum of US $9,308,594.71 for “Alexandra I” and in the sum of US $2,531,373.71 for “Ever Smart”.

Rulings of the courts: The Admiralty judge proceeded from the reason that it cannot have been intended by those who drafted the Collision Regulations that there would be two sets of rules with different requirements applying at the same time as this would cause confusion and not be in the interests of safety. He accordingly concluded that “the crossing rules cannot have been intended to apply where one vessel is navigating along a narrow channel and another vessel is navigating towards that channel with a view to entering it”.

The vessel shaping to enter the channel should, as a matter of good seamanship, navigate in such a manner that, when she reaches the channel, she is on the starboard side of the channel in accordance with rule 9.

When making a decision, the judge also took into account that “Alexandra I” was proceeding very slowly (she waited to embark the pilot), at such a slow speed “Alexandra I” was not very manoeuvrable. So, “Alexandra I” was not on a sufficiently defined course for the crossing rules to apply.

In the light of these conclusions, the judge’s conclusion on apportionment was that “Ever Smart” should bear 80% of the liability for the collision and “Alexandra I”, 20%.

The Court of Appeal upheld the judge’s conclusion that the narrow channel rules applied to the exclusion of the crossing rules.

It was also noted that the non-application of the rules obliging one of the vessels to give way ensures the continuity and a seamless entry into the channel

The Supreme Court disagreed with the judgements below¹.

As an international convention the Collision Regulations should be interpreted by reference to broad and general principles of construction rather than any narrower domestic law principles.

Such general principles include the general rule of interpretation set out in article 31.1 of the Vienna Convention on the Law of Treaties 1969, according to which:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

The object and purpose of the 1972 Convention is to promote safe navigation and specifically the prevention of collisions at sea. The structure of the Collision Regulations is designed to ensure that, wherever possible, ships will not reach a close-quarters situation in which there is risk of collision and in which decisions have to be taken without time for proper thought. “Wherever possible” the crossing rules ought to be applied and strictly enforced because they tend to secure safe navigation.

The respondent's position in the case was based on the fact that under Rule 2 (b) in construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.

Attempt was made by the respondent to use rule 2 as the basis for justifying a complete dis-application of the crossing rules as a matter of construction, on the basis of an apparent conflict with the rules of good seamanship, or to treat good seamanship on its own as a sufficient alternative to the application of the crossing rules.

The court regarded this approach to rule 2 as being misconceived. It was noted that the rule 2(b) builds in an inherent flexibility to meet particular dangers and special circumstances which points away from an approach which simply disapplies a Rule as a matter of construction because, on particular facts, strict compliance may give rise to difficulties.

To justify a departure from the regulations which is alleged to have been necessary to avoid immediate danger, there must be clear proof that an adherence to them would have caused such danger, and the action taken must be in accordance with the requirements of good seamanship.

Question 1: whether the crossing rules are inapplicable or are 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?

The courts bellow were guided by established practice, which the crossing rules are inapplicable where two vessels are approaching each other in a narrow channel, one vessel proceeding in one direction along it, the other proceeding along it in the other direction, even where they appear to be in a crossing situation. Exceptions are situations in which one of the vessels crosses the channel, or there is an intersection of two channels.

As an example, the situation was considered when vessels move along a curved channel. Their courses obviously cross, but safety is fully ensured by the narrow channel rules, if both vessels proceed along the course of a narrow channel to keep as near to its starboard outer limit.

With regard to the circumstances of the present case, the Court examined the situation when one vessel leaves a narrow channel and another is shapping to enter the narrow channel or approaching a narrow channel and intending to proceed along it. The court identified three groups of vessels located in the area just outside the entrance of a narrow channel, where it meets the open sea:

• Group 1 are vessels which are approaching the entrance of the channel, but not intending or preparing to enter it at all.

• Group 2 are 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 are approaching vessels which are also intending and preparing to enter, but are waiting to enter rather than entering: “Alexandra I” is a prime example.

It was noted that the crossing rules apply as between a vessel leaving the channel, approaching its entrance, and a vessel in Group 1. This is because the approaching vessel in Group 1 is not preparing or intending to enter it. The narrow channel rules, and not the crossing rules, apply as between the leaving vessel and a vessel in Group 2. That is because the approaching vessel is both preparing and intending to enter it, and already shaping (ie adjusting her course and speed to do so), on her final approach.

The debate in the present case concerns Group 3. The respondent submits that the “preparing and intending to enter” test, applies to a vessel waiting to enter, in particular if she is, like “Alexandra I”, waiting in a designated pilot boarding area, so that the crossing rules are overridden by the narrow channel rules.

The appellant submits that no necessity arises for the crossing rules to be overridden until the approaching vessel is actually shaping to enter, adjusting her course and speed to arrive at the entrance on her starboard side of it, on her final approach, in accordance with rule 9(a).

The court in this case upheld the appelant's position, stating the following:

First, the court referred to the principle outlined above that the crossing rules should be applied wherever they can, as between vessels which are in fact crossing so as to involve a risk of collision, means that they should not be overridden in the absence of an express stipulation, unless there is a compelling necessity to do so. There is or may be such a compelling necessity in Group 2 cases, but not in Group 3 cases.

In a Group 2 case, the necessity to disapply the crossing rules arises because, once she is shaping and adjusting her course to enter the narrow channel, the approaching vessel is already having her navigation determined by the need to be in compliance with rule 9(a) when she reaches the entrance, that is, to arrive at her starboard side of it, on a course which enables her to continue on her starboard side of the channel.

By contrast, no such necessity affects the Group 3 waiting vessel, or any vessel approaching the channel intending to enter it, which has yet to shape her course to enter it on her starboard side of it. If she is the give-way vessel under the crossing rules, she can alter course or slow down so as to keep clear of the stand-on vessel as she emerges from the channel. In the present case “Alexandra I” was the give-way vessel.

The Court preferred application of the appellant’s test since it overrides the crossing rules in fewer cases than the respondent’s test.

Fundamental to the construction of the Rules is the need to apply them by reference to what is reasonably apparent to those navigating each vessel about the conduct of the other. On that basis of assessment, the test propounded by the appellant is the clear winner. The crossing rules are overridden 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. That can be determined from the vessel leaving the channel by visual (or radar) observation of the approaching vessel’s course and speed.

Merely being in a pilot boarding area cannot of itself be decisive, since vessels may be proceeding in that area for other reasons, e.g. because they are leaving the narrow channel, or merely passing its entrance en route to a completely different destination.

On the basis of the foregoing, answering the first of the questions posed, the Court concluded that in the indicated situation, where an outbound vessel in a narrow channel is crossing with an approaching vessel so as to involve a risk of collision, the crossing rules are not overridden by the narrow channel rules merely because the approaching vessel is intending and preparing to enter the narrow channel. The crossing rules are only overridden if and when the approaching vessel is shaping to enter, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.

Question 2: is it necessary for the putative give-way vessel to be on a steady course for the crossing rules to be engaged?

The court noted that there may be many reasons why a vessel which is moving over the ground may not be on a steady course. She may be manoeuvring through a crowded anchorage, or to pick up a pilot. She may be altering her heading so as to cope with a strong tide, or she may be lying with her engines stopped and her rudder secured, drifting here and there under the influence of the wind, etc.

As stated in rule 7(d)(i) there is such a deemed risk of collision where two vessels are approaching each other on a compass bearing that does not appreciably change (regardless whether either of them is on a steady course).

According to the facts “Alexandra I” was moving very slowly and her course and speed were changing in the relevant period before the collision. The Admiralty judge concluded that she was “waiting” for the pilot launch to approach, before entering the narrow channel, contrasting being “on a course” with merely “waiting” as if the two were the antithesis of each other. But the facts he found about her movement (to use a neutral word) are not in dispute.

The Court noted that for purposes of crossing rules engagement it is sufficient that, for the relevant period of just under half an hour before the collision, (i) “Alexandra I” was moving over the ground in a generally ESE direction; (ii) she and EVER SMART were approaching each other; and (iii) they were doing so on a compass bearing (each as measurable from the other) that did not appreciably change. Since they were neither head-on nor was either overtaking the other, they were therefore “crossing so as to involve a risk of collision” within the meaning of rule 15.

The respondent submitted that the “steady course” requirement was to be fitted into the language of rule 15 because, absent a steady course, the two vessels would not be “crossing”.

The respondent also submitted that any apparent void in protection arising from two vessels being at risk of collision without any of the main steering rules (13, 14 or 15) applying is filled adequately by the requirement in rule 2 to use good seamanship.

The court did not agree with this statement. Save in a head-on situation, where neither vessel has right of way over the other, it is inherently safer for two vessels at risk of collision to know which must keep clear of the other, than for each to have to take seamanlike but otherwise unspecified avoiding action without knowing what the other vessel is likely to do.

The Court also noted that the risk of collision which is caused by the fact that two vessels are crossing does not depend upon either of them being on a steady course. They need only be on a steady bearing, as viewed from each other: see rule 7(d)(i). There may be other reasons why they may be observed to be at risk of collision which have nothing to do with the steadiness of their course: see the examples given in rule 7(d)(ii).

In particular, the Court stated: “The steadiness of the course of the other vessel may be difficult to observe, whereas the steadiness of her bearing will not be. The bearing can be precisely measured, over time, by frequent observation, using compass or radar or both”.

The respondent’s additional submission was that, on the facts of this case, even though the two vessels were approaching each other on a steady bearing, other than head-on, they could not be perceived by the other to be crossing because “Alexandra I”’s erratic course left open the possibility that she might be about to make a smart turn to starboard into the narrow channel, and thereby pass clear of “Ever Smart”, port to port.

The court was critical of this position, stating that:

First, the mere possibility that “Alexandra I” might make a late turn to starboard was insufficient to displace the risk of collision. A risk of collision is not displaced by a possibility that the collision may not happen.

Secondly, where two vessels are approaching each other on a steady bearing, the risk is deemed to exist: rule 7(d)(i).

Thirdly, rule 7(a) provides that if there is any doubt as to the risk of collision, then it shall be deemed to exist. If there is no answer to the existence in this case of a risk of collision, it makes no sense to disapply the crossing rules on a theory that the two vessels were not crossing.

On the basis of the foregoing, the Court has reached the following conclusion:

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.

Applied to the facts of this case, the Court suggested the analysis as follows:

i) Both “Alexandra I” and “Ever Smart” were moving over the ground throughout the relevant 23 minutes before the collision, even though “Alexandra I” was proceeding very slowly.

ii) Both vessels were visible to each other throughout, and their bearings from each other readily measurable, both by compass and by radar.

iii) Both could also observe they were approaching each other, both visually and by radar ranging.

iv) “Alexandra I” had “Ever Smart” on her starboard side throughout.

v) Both vessels were throughout that period in fact on bearings from each other which did not appreciably change, and this was readily observable from each vessel. Those (reciprocal) steady bearings were not dead ahead, nor did the overtaking rule apply.

vi) Both vessels were therefore crossing within the meaning of rule 15 and, because they were approaching each other on a steady bearing, deemed to be, and in fact, crossing so as to involve risk of collision.

vii) “Alexandra I” was not on a steady course, or speed. But she was proceeding in a generally ESE direction. “Ever Smart” was on a steady course but not a steady speed. The changes in the course and speed of “Alexandra I”, coupled with the changes in the speed of “Ever Smart”, were self-cancelling, in the sense that, collectively, they produced no appreciable change in the compass bearing of each vessel viewed from the other.

viii) Therefore, subject only to the effect of the narrow channel rules, the crossing rules applied to both vessels. “Alexandra I” was the give-way vessel and “Ever Smart” was the stand-on vessel. “Alexandra I” should therefore have kept well clear of “Ever Smart”.

Finally, the Court pointed out that the crossing rules did apply to “Alexandra I” and “Ever Smart” for the whole of the relevant period of just under half an hour before their collision.

However, neither of the parties has however asked this court to re-consider the apportionment of blame or liability. All matters of apportionment may be re-determined if necessary by the Admiralty Court.

Comment: In addition to being the first court collision case before the Supreme Court of the UK in 50 years, it is also notable for the following.

These questions considered in the present case are of real importance to mariners, and to the effectiveness of the Collision Regulations in preventing, as far as possible, collisions at sea. Bearing in mind that a narrow channel may include an appropriately narrow harbour entrance, the crossing situation to which the first question relates occurs very frequently, all round the world.

The Crossing Rules form the basis of the collision avoidance scheme, along with the rules for overtaking (rule 13) and the Rules for the approach of vessels going directly at each other (rule 14).

Rule 16 imposes an almost unqualified obligation on the give-way vessel to take early and substantial action to keep well clear. The only express qualifications are (i) that the give-way vessel is not required to do the impossible: see rule 16 itself, and (ii) the general caveat that special circumstances may arise in which a departure from the Rules becomes necessary to avoid immediate danger: see rule 2(b). Rule 8 contains detailed guidance as to whether a give-way vessel should alter course, slow down or even stop. At para (a) it requires avoidance action to be undertaken “with due regard to the observance of good seamanship”.

The rule 17 imposes only a qualified obligation on the stand-on vessel to “keep her course and speed”. It is abrogated when it appears to the stand-on vessel that the give-way vessel is not complying with the Rules: see rule 17(a)(ii), or when action by both vessels has become necessary to avoid a collision: see rule 17(b). The abrogation of the stand-on vessel’s obligation does not relieve the give-way vessel of her obligation to keep clear: see rule 17(d). This re-inforces the almost unqualified nature of the give-way vessel’s obligation.

Since the clear purpose of the crossing rules is to prevent collisions in such circumstances, it follows that, from a design point of view, they should not be considered inapplicable.

In this case, the Supreme Court of the UK has repeatedly stressed that the crossing rules should be applied if there is no need to act otherwise, that is, whenever possible.

The Rules are generally explicit about the effect of one rule upon another. If one Rule (here the crossing rules) is to be treated as ousted by another Rule (here the narrow channel rules) in the absence of any express provision to that effect, and there is none, then that ouster should be strictly limited to the minimum strictly necessary to avoid danger or uncertainty. An apparent tension with the dictates of good seamanship is no sufficient substitute.

In a situation of competition between the two rules, the crossing rules are canceled only when the narrow channel rules have actually begun to be applied and this is obvious for both vessels: there is no reason not to apply the crossing rules until the vessel actually starts to enter the channel, adjusting its course and speed in accordance with regulation 9(a). Only in such a situation is compliance with rule 9 sufficient to ensure safety and prevent collisions.

The question whether the vessel needs to be on a steady course is important because, if there is such a steady course requirement before the crossing rules are engaged, the putative give-way vessel may in any of those situations be relieved of what would otherwise be her obligation to keep well clear of the putative stand-on vessel, even though there is a deemed risk of collision.

Rule 15 specifies the conditions under which the crossing rules are engaged: two power-driven vessels, vessels are crossing, risk of collision. There is no indication in this provision that there is an additional requirement that either vessel must be on a steady course.

We will highlight several significant points regarding this issue:

i) Rule 15 makes no mention of “course” at all, let alone of a “steady course” requirement, in relation to either vessel.

ii) Rules are, generally, very clear and precise about the requirements for their engagement as well as about exceptions.

iii) The rules should be simple and certain for mariners, professional and amateur, to understand and apply. Once it is observed that another vessel is approaching, on your starboard side, on a compass bearing which does not appreciably change, that should be enough to require you to give way, ie to take early and substantial action to keep well clear.

iv) To introduce by implication a steady course requirement as an additional condition creates a void in the protection provided by the crossing rules, where there is a risk of collision, but where there is then no applicable provision as to which vessel should give way, or other collision-avoidance guidance beyond good seamanship. ■

Notes