UK: Court Of Appeal Decision In ‘Alexandra 1': It Takes Two To Cross

The Court of Appeal has today handed down its decision on appeal of the first collision case to be heard by that Court since 2004. The decision of the Admiralty Court in 'Alexandra 1' and 'Ever Smart' [2017] EWHC 453 had caused considerable interest given its findings concerning which of two rules in the Collison Regulations (Colregs), the narrow channel rule (rule 9) or the crossing rule (rule 15), applied in circumstances where one vessel was exiting a narrow channel and the other vessel was navigating towards that channel in preparation for entering it.

By a unanimous decision the Court of Appeal has upheld the finding of the Admiralty Judge that the narrow channel rule applied and the crossing rule did not apply. In dismissing each of the grounds of appeal raised on behalf of 'Ever Smart' interests, the Court of Appeal has confirmed the finding of the Admiralty Court that 'Ever Smart' should bear 80% of the liability for the collision. 'Alexandra 1' interests were represented by Clyde & Co (Irvine Marr, Partner, David Owens, Senior Associate, Martyn Haines, Master Mariner).

Facts

On 11 February 2015, a collision occurred between the laden VLCC 'Alexandra 1' owned by Nautical Challenge Ltd, and a laden container vessel, 'Ever Smart', owned by Evergreen Marine (UK) Ltd, just outside the dredged entrance and exit channel to the port of Jebel Ali in the UAE. 'Ever Smart' had been in the process of departing the port via the channel and shortly prior to the collision had disembarked the Pilot and was about to exit the channel. 'Alexandra 1' had been waiting to enter the port at anchorage when she was instructed by Port Control to wait "at buoy no.1" where the pilot (the same pilot due to disembark from 'Ever Smart') would board for inbound passage through the entrance channel. As 'Ever Smart' exited the channel her Master called to increase the engines to full sea speed so that at the time of the collision, just outside the channel, she had a speed over the ground of 12.4 knots. 'Alexandra 1' had her engines at slow ahead while awaiting the pilot in the vicinity of buoy no.1. The port bow of 'Ever Smart' struck the starboard bow of 'Alexandra 1' at an angle of about 40 degrees leading aft on 'Ever Smart'.

Application of the Narrow Channel Rule and the Crossing Rule

The parties were able to agree largely on the navigational facts, but a more substantial dispute remained regarding liability, and more particularly the relevance and applicability of the narrow channel rule and the crossing rule under rules 9 and 15 of the Colregs in this situation. Rule 9 of the Colregs, entitled Narrow Channels, provides at rule 9(a):

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."

Rule 15 of the Colregs, entitled 'Crossing Situation', provides:

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 behalf of 'Ever Smart' it was argued that at the time when she was proceeding along the dredged channel heading towards the exit (and entrance) point and 'Alexandra 1' was near to the channel entrance, 'Ever Smart' was positioned on the starboard side of 'Alexandra 1' so that, pursuant to rule 15, it fell on the latter to keep out of the way of the former.

'Alexandra 1' interests disagreed and submitted that the crossing rules had very limited application to questions of navigation in and around a narrow channel and, in particular, did not apply to a vessel in a narrow channel and a vessel navigating in preparation for entrance to the channel, as in the case at hand. Also, the 'Alexandra 1' was not on a suitably constant direction or heading to ever be on a course for rule 15 to apply.

There was no dispute that the dredged channel was a narrow channel for the purposes of rule 9 of the Colregs.

The Admiralty Court

The Admiralty Judge, Teare J, reviewed a number of English authorities dating back to 'The Leverington' (1886) in which the application of the crossing rules in the vicinity of a narrow channel had been considered and summarised matters as follows:

I have therefore concluded that rule 15 of the Collision Regulations, the crossing rule, did not bind 'Alexandra 1' when she approached the dredged channel leading to Jebel Ali and so she was not under a duty to keep out of the way of 'Ever Smart'. Her duty, as a matter of good seamanship, and as formulated by Lord Clarke [in Kulemesin v HKSAR (2013)], was to navigate in such a manner that, when she reached the channel, she would be on the starboard side of the channel in accordance with rule 9."

Having regard to the unsafe speed of 'Ever Smart', she contributed far more to the damage resulting from the collision than the very much lower (and safe) speed of 'Alexandra 1'. It followed that the causative potency of 'Ever Smart's' fault was greater than that of ALEXANDRA 1. On this basis Teare J concluded that 'Ever Smart' should bear 80% of the liability for the collision and 'Alexandra 1' should bear 20% of the liability for the collision.

The Court of Appeal

Permission to appeal was granted by Longmore LJ upon an application on behalf of 'Ever Smart', such permission having initially been refused by Teare J.

The leading judgment of the Court was delivered by Gross LJ, with whom Lewison LJ and Leggatt LG concurred.

On the key issue as to whether the crossing rules applied in the vicinity of a narrow channel, Gross LJ agreed in full with the approach adopted by the Admiralty Judge and shared his concern regarding the potential risks of conflicting requirements posed by the narrow channel rule and the crossing rule applying at the same time. He expressed the view that an overview of the situation as a whole suggested that the crossing rules are inapplicable, noting:

The navigation of 'Ever Smart' in the narrow channel was governed by the narrow channel rule; the approach of 'Alexandra 1' to the channel was governed by good seamanship, having regard to the requirements of the narrow channel rule as and when she entered the channel (which, of course, she never reached). There was neither need nor room for the application of the crossing rules."

A detailed review of the relevant authorities supported this overall conclusion and despite the efforts made on behalf of 'Ever Smart' to distinguish in particular the observations of Lord Clarke in Kulemesin v HKSAR (2013), Gross LJ held that the persuasive force of Lord Clarke's "carefully considered" observations, as relied upon by Teare J, stood undiminished.

The Court of Appeal then considered a new argument raised on appeal on behalf of 'Ever Smart' to the effect that the findings of the Admiralty Judge on the applicability of the crossing rule could not survive the "stress-test" of examining the position if 'Alexandra 1' had, hypothetically, been approaching the channel in an East-West direction rather than the West-East approach that she had actually taken. It was argued that adopting this hypothesis illustrated that the incoming vessel would have had to get over to the starboard side of the channel and, absent the application of the crossing rules, there would be no rule of priority.

The Court of Appeal considered that the issue raised a question of seamanship and consulted the Elder Brethren on appeal. Although the answers provided by the Elder Brethren were contested on behalf of 'Ever Smart', Gross LJ held that "it is plain from the Answer that the Elder Brethren did not consider the crossing rules to have any role to play in the hypothetical East-West situation." This further ground of appeal was therefore dismissed.

The final issue considered by the Court of Appeal in relation to the applicability of the crossing rule concerned the finding by Teare J that 'Alexandra 1' had not been proceeding on a sufficiently defined course for the crossing rule to apply. Although there was clear authority confirming that the stand-on vessel must be on a sufficiently defined course for the crossing rules to apply, the position in law regarding the give-way vessel was less clear. However, having reviewed the cases Gross LJ felt able to conclude as follows:

Though the position may not be as obvious as in the case of the stand-on vessel, I am nonetheless satisfied that both vessels, the give-way vessel included, must be on sufficiently defined courses for the crossing rules to apply. That is of the essence of the crossing rules."

With all arguments raised on behalf of 'Ever Smart' regarding the application of the crossing rule having failed, the only remaining issue on appeal was whether the Admiralty Judge had taken the correct approach towards the apportionment of liability for the collision.

'Ever Smart' interests argued that Teare J was wrong in principle in singling out and "double-counting" excessive speed in relation to causative potency – once in relation to the fact that the collision occurred and again with regard to the damage sustained. However, once again, Gross LJ was not persuaded by this submission and having helpfully recapped the correct approach to be gleaned from the authorities on this issue, noted as follows:

I reject [this] submission of "double-counting"; the short answer is that having regard to this fault both in relation to the fact of the collision occurring and the severity of the collision, amounts to the separate counting of two different (and cumulative) aspects of the same fault.

Having dismissed each of the various arguments raised on behalf of 'Ever Smart' on appeal, it followed that Gross LJ proceeded to dismiss the appeal as a whole.

Comment

The findings of the Court of Appeal in this case - on one of the relatively rare occasions in recent years that they have considered a collision action - will be of considerable interest to the maritime community. As noted by Gross LJ at the very outset of his judgment, the appeal "highlights the continuing international reach of the Admiralty Court" and, given this reach, will hopefully assist in avoiding confusion regarding the application of the Collision Regulations in similar cases in the future.

The findings on both the application of the crossing rule in the vicinity of a narrow channel and also the correct approach regarding causative potency in the context of apportionment of liability are of some significance given that previous case law has been persuasive but perhaps not necessarily conclusive. This important decision has provided welcome clarity in relation to both issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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