Evergreen Marine (UK) Ltd v Nautical Challenge Ltd (THE 'ALEXANDRA 1' and 'EVER SMART')
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lord Briggs,Lady Arden,Lord Hamblen,Lord Burrows |
| Judgment Date | 19 February 2021 |
| Neutral Citation | [2021] UKSC 6 |
| Court | Supreme Court |
[2021] UKSC 6
Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Hamblen and Lord Burrows (with Nautical Assessors).
Supreme Court.
Shipping — Collision — Collision Regulations — Crossing rules — Narrow channel rule — Collision between VLCC and container ship at entrance to dredged channel leading to and from port of Jebel Ali in UAE — Whether crossing rules applied where outbound vessel navigating in narrow channel and vessel on crossing course waiting to enter — Whether crossing rules applied if putative give-way vessel not on steady course — International Regulations for Preventing Collisions at Sea 1972, r. 9, 15 – 17.
This was an appeal from a decision ([2018] EWCA Civ 2173; [2018] 2 CLC 700) concerning the interrelation of the crossing rules in r. 15-17 of the Collision Regulations and the narrow channel rule in r. 9.
The appellant's large container vessel, Ever Smart, was using the dredged channel to exit the port of Jebel Ali in the UAE laden with a container cargo. The respondent's very large crude carrier, Alexandra 1 was an inbound, laden 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 was a ‘narrow channel’ for the purpose of r. 9.
There were clear night skies and good visibility so that the vessels would have been in sight of each other when they were about six miles apart about 23 minutes before the collision (C-23). From (C-10) until the collision, Ever Smart was navigating to port of mid-channel and thus on the wrong side of the channel in breach of r. 9. After the pilot disembarked at C-6 the vessel increased speed and was travelling at 12.4 knots over the ground at the time of collision.
At C-27 Alexandra 1 was within the pilot boarding area about 1.4 nautical miles from the buoys at the seaward end of the channel. At C-24 the vessel's engines were stopped and those on board observed Ever Smart proceeding outbound along the channel. At C-15 Alexandra 1's engines were put from stop to dead slow ahead. The vessel was about one mile from the buoys. At C-14 the master overheard a conversation between Port Control and a tugboat. The master misunderstood the conversation and thought that Port Control was speaking to Ever Smart and that Ever Smart would be attempting to pass astern of Alexandra 1 before the latter entered the channel.
At C-5 Alexandra 1 was approaching the point at which it would normally have turned to line up with the starboard side of the approaches to the channel. However, it did not do so due to the mistaken understanding of the conversation between Port Control and the tugboat. At about C-4, the engines of Alexandra 1 were put from dead slow ahead to slow ahead. At about C-2 the Ever Smart reached the buoys but did not turn to port as the master of Alexandra 1 expected. At the time of collision the Alexandra 1 was travelling at about 2.4 knots over the ground.
At the point of collision, Alexandra l's bow was on about the centre line of the channel. The port bow of Ever Smart struck the starboard bow of Aleaxandra 1 at an angle of about 40 degrees leading aft on Ever Smart. The judge found that for the whole of the relevant period of 23 minutes before the collision the two vessels were approaching each other on bearings which, viewed from each other, did not appreciably change.
The judge held, on the authority of The Canberra Star [1962] 1 Ll Rep 24 and Kulemesin v HKSAR [2013] 16 HKCFA 195, that the crossing rules did not apply where one vessel was navigating along a narrow channel and another vessel was navigating towards that channel with a view to entering it ([2017] EWHC 453 (Admlty); [2017] 1 CLC 217). He further held that the Alexandra 1 was not on a sufficiently defined course for the crossing rules to apply. He described the vessel as waiting for the pilot vessel to arrive rather than being on a course.
The judge then considered the alleged faults in the navigation of each vessel, their culpability and causative potency. He concluded that Ever Smart should bear 80% of the liability for the collision and Alexandra 1 20%.
The Court of Appeal upheld the judge's conclusions that the narrow channel rules applied to the exclusion of the crossing rules and that the Alexandra 1 was not on a sufficiently defined course for the crossing rules to apply.
The appeal raised two questions of law: (i) whether the crossing rules did not apply where an outbound vessel was navigating within a narrow channel and a vessel on a crossing course was approaching the narrow channel with the intention of and in preparation for entering it; (ii) whether there was a requirement for the putative give-way vessel to be on a steady course before the crossing rules applied.
Held, allowing the appeal and remitting all matters of apportionment to be redetermined by the Admiralty Court:
1. If two vessels, both moving over the ground, were crossing so as to involve risk of collision, the engagement of the crossing rules was not dependent upon the give-way vessel being on a steady course. If it was reasonably apparent to those navigating the two vessels that they were approaching each other on a steady bearing (over time) which was other than head-on, then they were both crossing, and crossing so as to involve a risk of collision, even if the give-way vessel was on an erratic course. In such a case, unless the overtaking rule applied, the crossing rules would apply. Although it was not an issue which arose in this case, the stand-on vessel need not be on a steady course either. Before the collision the vessels' bearings from each other did not appreciably change. Both vessels were therefore crossing within r. 15 and the crossing rules applied, subject only to the effect of the narrow channel rules. Alexandra 1 was the give-way vessel and Ever Smart the stand-on vessel and Alexandra 1 should have kept well clear of Ever Smart.
2. The crossing rules should be applied wherever they could, as between vessels which were in fact crossing so as to involve a risk of collision, and should not be overridden in the absence of an express stipulation, unless there was a compelling necessity to do so. There was or might be such a compelling necessity in the case of vessels which were on their final approach to the entrance of a narrow channel, adjusting their course to arrive at their starboard side of it, but not in the case of vessels such as the Alexandra 1 which were waiting to enter rather than entering the channel. In the former case the approaching vessel's navigation was already being determined by the need to comply with the narrow channel rule making it necessary to disapply the crossing rules. No such necessity affected the waiting vessel, or any vessel approaching the channel intending to enter it which had yet to shape its course to enter it on its starboard side of it. If it was the give-way vessel under the crossing rules, it could alter course or slow down so as to keep clear of the stand-on vessel emerging from the channel. Alexandra 1 as the give-way vessel could have kept clear of Ever Smart by stopping, or by turning to starboard. Where an outbound vessel in a narrow channel was crossing with an approaching vessel so as to involve a risk of collision, the crossing rules were not overridden by the narrow channel rules merely because the approaching vessel was intending and preparing to enter the narrow channel. The crossing rules were only overridden if and when the approaching vessel was shaping to enter, adjusting its course so as to reach the entrance on its starboard side of it, on its final approach. It followed that the crossing rules applied to Alexandra 1 and Ever Smart for the whole of the relevant period before the collision. (Lorentzen v Alcoa Rambler[1949] AC 236 (PC)andCorcrest v Ulrikka(1922) 13 Ll L Rep 367applied; Kaiser Wilhelm der Grosse[1907] P 259 (CA), The Canberra StarandKulemesinconsidered.)
The following cases were referred to in the judgment:
Ada and The Sappho, The (1873) 2 Asp (NS) 4.
Albano (SS) v Allan Line Steamship Co Ltd [1907] AC 193.
Aracelio Iglesias, The [1968] 2 Ll Rep 7.
Ashton, The [1905] P 21.
Avance, The [1979] 1 Ll Rep 143.
Broomfield, The (1905) 10 Asp MLC 194.
Canberra Star, The [1962] 1 Ll Rep 24.
Commonwealth and Dominion Line v US (1927) 20 F 2d 729 (CA 2nd Cir)
Concordia, The (1866) LR 1 A & E 93.
Corcrest v Ulrikka (1922) 13 Ll L Rep 367.
Dona Myrto [1959] 1 Ll Rep 203.
Empire Brent, The (1948) 81 Ll L Rep 306.
Fothergill v Monarch Airlines Ltd [1981] AC 251.
Gard Marine and Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2017] UKSC 35; [2017] 1 CLC 870; [2017] 1 WLR 1793.
Glenfalloch, The [1979] 1 Ll Rep 247.
James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141.
Kaiser Wilhelm der Grosse, The [1907] P 36; [1907] P 259 (CA).
Kulemesin v HKSAR [2013] 16 HKCFA 195.
Leverington, The (1886) 11 PD 117.
Lorentzen v Alcoa Rambler [1949] AC 236 (PC).
Maloja II, The [1993] 1 Ll Rep 48.
Morris v KLM Royal Dutch Airlines [2002] UKHL 7; [2002] CLC 820; [2002] 2 AC 628.
Nordlake v Seaeagle [2015] EWHC 3605 (Admlty); [2016] 1 CLC 353.
Otranto, The [1930] P 110 (CA); [1931] AC 194 (HL).
Pekin, The [1897] AC 532.
Queen Mary, The (1949) 82 Ll L Rep 303.
Roanoke, The [1908] P 231.
Savina, The [1976] 2 Ll Rep 123.
Selat Arjuna v Contship Success [1998] CLC 1495.
Sestriere, The [1976] 1 Ll Rep 125.
Stag Line Ltd v Foscolo, Mango & Co Ltd [1932] AC 328.
Taunton, The (1928) 31 Ll L Rep 119.
Treherbert, The [1934] P 31.
Trinidad Corp v Keiyoh Maru (1988) 845 F 2d 818; 1989 AMC 627 (CA 9th Cir).
Simon Rainey QC and Nigel Jacobs QC (instructed by Ince Gordon Dadds LLP and Stann Law Ltd) for the appellant.
Vasanti Selvaratnam QC and James Shirley (instructed by Clyde & Co) for the...
To continue reading
Request your trial
-
Alize 1954 and CMA CGM SA v Allianz Elementar Versicherungs AG and 16 Ors
...law. 4. THE APPROACH TO INTERPRETATION OF THE HAGUE RULES 34 In its recent decision in Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2021] UKSC 6; [2021] 1 WLR 1436 this court observed at para 38 that international conventions should in general “be interpreted by reference to broad an......
-
The Queen (on the application of KTT) v Secretary of State for the Home Department
...common ground that in interpreting ECAT itself I should apply the approach stated in Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2021] 1 WLR 1436 where, at [38], Lords Briggs and Hamblen JJSC said that international conventions should be interpreted by reference to “broad and genera......
-
Fimbank Plc v KCH Shipping Company Ltd “Giant Ace”
...had to how [the Rules] have been interpreted by the courts of different countries” ( Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2021] UKSC 6, [2021] 1 WLR 1436 at [42]). Lord Hamblen added that this will be particularly important if there is shown to be a consensus among national......
-
Fimbank p.l.c. v KCH Shipping Company, Ltd
...had as to how it has been interpreted by courts of different countries: see recently Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2021] UKSC 6 at [42], and Alize 1954 at [42]). I can express my conclusion as 46 I accept FIMBank's submission that the view of other common law courts a......
-
"WILFORCE" Collision With "WESTERN MOSCOW": The Application Of The Crossing Rules Re-Considered (Again)
...Since last year's historic Supreme Court decision in Evergreen Marine (UK) Ltd. v. Nautical Challenge Ltd. [2021] UKSC 6, the Admiralty Court has now considered the scope and application of rules 15 - 17 of the International Collision Regulations ("the crossing rules") on two occasions: in ......