Introduction

In the recent case of Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2017] EWHC 453 (Admlty), the Admiralty Court of the United Kingdom considered the applicability of both Rule 15 (the “Crossing Rule”) and Rule 9 (the “Narrow Channel Rule”) of the International Regulations for Preventing Collisions at Sea 1972 (the Collision Regulations) and had decided that the Crossing Rule would not apply in situations where one vessel was navigating within a channel and another vessel was approaching the entrance to that channel planning with a view to embarking a pilot before entering it.

The Facts

On 11 February 2015, a collision occurred between two vessels, “Alexandra 1” and “Ever Smart”, outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the United Arab Emirates.  The collision took place when “Ever Smart” was exiting the channel after disembarking her pilot and when “Alexandra 1” was about to enter the channel intending to embark the same pilot. After “Ever Smart” had successfully disembarked the pilot, her master ordered her to increase its speed to full sea speed.  Eventually, it collided with “Alexandra 1” when its port bow struck the starboard bow of “Alexandra 1” at an angle of around 40 degrees.  At the time of collision, “Ever Smart” had a speed over the ground of 12.4 knots.

The damage suffered by “Alexandra 1” was around US$32 million and the damage suffered by “Ever Smart” amounted to some US$4 million.

The Dispute

There was no dispute that the dredged channel in question was “a narrow channel” for the purposes of the Narrow Channel Rule.  The major dispute between the parties was whether the Crossing Rule or the Narrow Channel Rule shall apply on the facts of the case.

According to the Crossing Rule, “when two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.”

On the other hand, the Narrow Channel Rule provides that “a vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.”

The position of “Ever Smart” was that given the two vessels were crossing at the time of the collision, the Crossing Rule applied and hence, “Alexandra 1” was under a duty to keep out of the way of “Ever Smart” as “Ever Smart” was on her starboard bow.

On the contrary, “Alexandra 1” argued that on the basis of various case laws, the Crossing Rule has limited application to questions of navigation in and around a narrow channel. In particular, the Crossing Rule would not apply in circumstances where one vessel is in a narrow channel while another is navigating towards the channel in preparation for entering it (as in the present case).

The Decision

Applicability of the Crossing Rule

On the facts of the case, Justice Teare accepted “Alexandra 1”‘s arguments and held that the Crossing Rule should not apply.  In reaching such conclusion, Justice Teare took into account a number of relevant cases which considered the two rules, many of which are in support of the arguments raised by “Alexandra 1”.

In particular, Justice Teare relied most heavily on a decision by the Hong Kong Court of Final Appeal (“CFA”) in Kulemesin v HKSAR [2013] 16 HKCFA 195. The facts in that case were similar to the present case. The key difference is that the vessel in Kulemesin was not planning to embark a pilot before entering the channel, whereas in the present case, Alexandra 1 was planning to do so. In Kulemesin, the CFA held that the Crossing Rule would not apply when a vessel is approaching a narrow channel on a crossing course involving risk of collision with another vessel navigating in that channel. Justice Teare agreed with such ruling in Kulemesin and hence, he held that “Alexandra 1” was only bound by the Narrow Channel Rule which required her to keep to the starboard side of the dredged channel when entering it at the time of the collision. “Alexandra 1” was not under a duty to keep out of her way under the Crossing Rule as it did not apply.

Having reached such conclusion, the Court went on to deal with some other alternative submissions by “Alexandra 1” in arguing that the Narrow Channel Rule should apply instead of the Crossing Rule. In this regard, the Court accepted some of “Alexandra 1”‘s arguments and held that “Alexandra 1” was not on “a sufficiently defined course” to trigger the duty under the Crossing Rule. That was because when “Alexandra 1” was picking up the pilot at the time of the collision, the course taken by her varied by nearly 30°, and it could not therefore be said that she had been on a sufficiently defined course. The Court then went on to assess the conduct of each vessel and to apportion liability.

Apportionment of Liability

On the question of apportionment of liability, the Court found that both parties were at fault. However, it was of the view that “Ever Smart” was more culpable than “Alexandra 1”.

The Court found that “Ever Smart” was in breach of the Narrow Channel Rule and had failed to keep a good lookout.  As a result of her poor lookout, she proceeded at an unsafe speed and failed to take action to avoid the collision.  The Judge described the faults on the part of “Ever Smart” as “very serious”.  On the other hand, the Court also found “Alexandra 1” to have failed to keep an adequate lookout.  This is because her Master had misunderstood VHF radio conversations between another vessel and the Port Control which had eventually hindered the vessel’s assessment of the situation.

Taking into account all evidence available, the Court concluded that “Ever Smart” was to bear 80% of the liability for the collision, whilst “Alexandra 1” was to bear the remaining 20%.

Conclusion

This decision provides clear guidance on how the Court looks at the inter-relation between the Narrow Channel Rule and the Crossing Rule under the Collision Regulations. It is now clear that in situation where one vessel is transiting a narrow channel and another vessel is waiting at the entrance of that channel to enter it, only the Narrow Channel Rule would apply. In other words, whilst two vessels may be crossing each other in or near a narrow channel, the Crossing Rule might not be applicable.  This judgment also serves as a useful reminder to ship owners that in order to avoid collisions of similar kind, they must keep a good lookout.

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2017