The Supreme Court overturns earlier judgments on the Ever Smart and Alexandra 1 collision and provides clarity on the Collision Regulations

Posted: 24/02/2021

The Supreme Court handed down judgment on 19 February 2021 on an appeal by the Ever Smart. The collision between the Ever Smart and the Alexandra 1 took place in February 2015 within the pilot boarding area at the seaward end of the access channel to Jebel Ali. The Ever Smart was heading outbound and had just left the channel at the time of the collision (her course in the channel was approximately north-west); the Alexandra 1 was waiting for a pilot near the channel entrance, and had been moving slowly towards the channel from the west for the proceeding half an hour or so. The Alexandra 1 had not yet turned to starboard to enter the channel at the time of the collision.

In the Admiralty Court in 2017, the Ever Smart was found to be 80% to blame, and the Alexandra 1 20%. An appeal by the Ever Smart to the Court of Appeal failed. The Ever Smart then appealed two particular issues to the Supreme Court: (i) whether the rules in the Collision Regulations (Col Regs) dealing with a crossing situation (principally, Rule 15) are to be disapplied in favour of the narrow channel rule (Rule 9) where one of the vessels is navigating within (or just emerging from) a narrow channel and the other vessel intends to enter the channel; and (ii) whether the give-way vessel in a crossing situation (ie the vessel with the other on her own starboard side) must be on a ‘steady course’ for the crossing rules to be engaged. The lower courts had answered ‘yes’ to both of these questions, meaning the crossing rules were either not engaged or were overridden by the narrow channel rule (meaning the Alexandra 1 was not found to be the give-way vessel). The Supreme Court, in the first collision case to reach the court for almost 50 years, took a different view on the rules.

The judgment is important to mariners, and those ashore who support them, as it provides clarity and practical guidance on how to apply the Col Regs to avoid collisions.

The Supreme Court judgment

The Supreme Court, from the start of the judgment, emphasised that the Col Regs, being based on international convention, must be readily understandable to mariners of all types worldwide: ‘the steering rules should be simple and certain for mariners, professional and amateur, to understand and apply’ [83]. The crossing rules are fundamental to preventing collisions and should not be overridden ‘unless there is a compelling reason to do so’ [137]. Further, Rule 2 does not provide justification to disapply the crossing rules on the basis that good seamanship provides a sufficient alternative: Rule 2(a) confirms that ‘compliance with the Rules is a first principle of good seamanship’ and Rule 2(b) justifies departure from the rules ‘only in particular circumstances which meet the stern test of necessity to avoid immediate danger’ [66-67].

The court set out the meanings of ‘heading’, ‘course’ and ‘bearing’ as applicable to the Col Regs, which was helpful given the muddled use of these terms in previous judgments. The court emphasised the importance of taking bearings in assessing whether a risk of collision exists: where vessels are approaching and each remains on a steady bearing from the other, a risk of collision exists (Rule 7).

A steady course for the crossing rule to apply?

In answer to the second question, the court found that neither the give-way vessel nor the stand-on vessel has to be on a steady course for the crossing rules to apply. Indeed, Rule 15 does not mention ‘course’ at all. The key criterion is whether the vessels are on steady bearings; if so, and it is not a head-on or overtaking situation, the crossing rule will apply. ‘Approaching’ does not mean the vessels have to be heading towards each other; it simply means they are getting nearer [55]. To require the other vessel to be on a steady course (after it has been assessed that it is on a steady bearing) for the crossing rules to apply would potentially create ‘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’ [83].

Where the crossing rules apply, waiting for a pilot does not free a vessel from her give-way obligations. The give-way vessel must keep clear even if she is almost stationary. Furthermore, where there is any doubt, a risk of collision shall be deemed to exist (Rule 7(a)).

The court concluded:

‘…. 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]

Does the narrow channel rule trump the crossing rules?

To answer the first question, as to which rules apply, the court first started by identifying situations where the narrow channel rules will take precedence: mainly when both vessels are navigating along the channel. However, there are instances when both sets of rules will apply, for example when two narrow channels intersect. It was emphasised that the crossing rules may only be overridden where ‘there is a compelling necessity to do so’ [137].

As to applicability where one vessel is just outside the narrow channel, the court identified three groups of vessels: (1) vessels crossing the entrance to the channel but not intending to use it; (2) vessels intending to enter the channel and on their final approach (‘shaping to enter’); and (3) vessels intending to use the narrow channel but which are waiting to enter rather than entering. The Alexandra 1 was in the third group, as she had not yet altered course to enter the channel. The crossing rules clearly apply to the first group of vessels. The narrow channel rule applies to the second group, as a vessel’s navigation is already dictated by Rule 9(a). As to the third group, the court found that, as such a vessel is not yet navigating in accordance with Rule 9 (ie she has not yet lined herself up with the starboard side of the channel), the crossing rules shall continue to apply.

Whether an approaching vessel is in the second or third group should be determined by observing her course and speed. A vessel in the third group does not become a vessel in the second group merely because it is intending to enter the narrow channel; it must be shaping to enter the starboard side of the channel and therefore navigating in accordance with Rule 9.

Discussion

The Supreme Court judgment provides welcome clarity on interpreting the crossing and narrow channel rules, and the steering and collision assessment rules more generally. The judgment provides a practical answer to applying the rules, based on the fundamentals of navigation:

‘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’. [141]

The importance of taking and monitoring the bearing of an approaching vessel, visually or by radar, was stressed as being the way in which the rules require seamen to assess whether risk of collision is developing in crossing, head-on or overtaking situations. Technical aids are of course important (and required to be used under the rules) but they do not displace the need to take bearings:

‘…the Rules…must be capable of being implemented by all vessels, as defined. Furthermore, it can happen that one or more of these modern technical aids may not be operational or switched on. Thus reliance on these systems is not a complete substitute for visual observation and repeated compass bearings….’ [73].

In this regard, the previous finding that a vessel had to be on a steady course for the crossing rules to apply was unhelpful; when standing on the bridge it is not always clear when another vessel makes a series of relatively minor alterations of course and/or speed (even with modern aids), meaning it could potentially be unclear when the crossing rules apply. In contrast, it is almost always clear when the contact remains on a steady bearing (the judgment also covers situations where a bearing cannot be taken). It was drilled into the author of this article as a trainee officer of the watch that taking a bearing must be the first action on sighting another vessel, for this very reason.

As to the interplay between the crossing and narrow channel rules, it makes practical sense for the latter only to be engaged when the vessel that will enter the channel is already navigating in accordance with Rule 9. Even though it is often apparent to one vessel what the other is intending to do, collision avoidance should not be based on assumptions, but on what is apparent visually or by radar to the other ship. Until the incoming vessel is close to the channel entrance and clearly navigating to enter the channel on the starboard side, the crossing rules will prevail.

The case will now be handed back to the Admiralty Court to decide whether the Supreme Court decision affects apportionment of liability. Regardless of that decision, this Supreme Court judgment should be welcomed at sea and ashore for providing clarity on actions required to avoid collisions. It can be expected to feature prominently in the next edition of Cockroft and Lameijer – A Guide to the Collision Avoidance Rules.

The full judgment can be found here.

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