UK: The Crossing Rule And Narrow Channels – Court Of Appeal Hands Down Judgment In The Alexandra 1

On 5 October 2018, the English Court of Appeal confirmed the High Court decision in National Challenge Ltd. v. Evergreen Marine (UK) Ltd [2017] EWHC 453 (Admlty) that the crossing rule does not apply where one vessel is approaching a narrow channel intending to enter it and another vessel is navigating in the narrow channel intending to exit it, so as to involve risk of collision. This decision seeks to provide certainty in such situations and promote safe navigation; however, the decision may not be relevant in all situations when vessels are crossing, whilst navigating in or near a narrow channel.

Background

On 11 February 2015, a laden VLCC, Alexandra 1, and a laden container vessel, Ever Smart, collided just outside the dredged entrance channel to Jebel Ali in the United Arab Emirates. At the time of the collision, the Alexandra 1 was inbound and the Ever Smart was outbound.

As previously reported, at first instance the Admiralty Judge, Mr. Justice Teare ("Teare J"), held that Rule 15 of the International Regulations for Preventing Collisions at Sea, 1972 (the Collision Regulations), the crossing rule, did not apply and that when Alexandra 1 approached the narrow channel she was not under a duty to keep out of the way of Ever Smart. Instead, the navigation of the two vessels was governed by: Rule 9, the narrow channel rule, in the case of Ever Smart; and Rule 2, the requirement of good seamanship, in the case of Alexandra 1.

Further, Teare J held that even if he was wrong, the crossing rule was inapplicable as Alexandra 1 was not on a sufficiently constant course at the relevant time.

Having regard to the relative culpability and causative potency of the faults of the respective vessels, Teare J held that Ever Smart should bear 80 per cent of the liability for the collision and Alexandra 1, 20 per cent.

Ever Smart interests appealed the decision on four grounds. This legal update only considers the application of the crossing rule, forming grounds 1 to 3 of the appeal.

The Court of Appeal decision

Ever Smart interests argued the crossing rule was triggered from, at the latest, C-23, when the vessels were less than six miles apart. Thereafter, the vessels were on converging courses so as to involve risk of collision. Once the crossing rule was engaged, it remained engaged throughout and there was no scope for the application of Rule 2 (the requirement of good seamanship).

Further, it was argued there was no rule of law that the crossing rule would not apply where a vessel was emerging from a narrow channel and another vessel was crossing so as to enter that channel. Accordingly, the crossing rule was to be applied whenever reasonably possible and was only to be disapplied as a last resort, and where there was a particular reason for doing so. There was no such reason here and so both the crossing and narrow channel rules (Rules 15 and 9(a), respectively) could and should have been applied.

Ever Smart interests also argued the application of the rule did not depend on the give-way vessel being on a steady course and heading. They argued that the key, instead, lay in the vessels converging.

Unsurprisingly, Alexandra 1 interests argued that the judge was right for the reasons he gave and as reported in our previous update.

The application of the crossing rule

In the Court of Appeal, Lord Justice Gross (with whom Lord Justices Lewison and Leggatt agreed) approached the question of the applicability of the crossing rule on the basis that the Collision Regulations are practical rules, having, as their primary object, the prevention of collisions at sea. They considered the issues concerned if two rules apply at the same time, potentially requiring different actions: the crossing rule, requiring the stand-on vessel to keep her course and speed; and the narrow channel rule requiring a vessel proceeding along the course of such channel to keep to its starboard side, so far as is safe and practicable.

After considering the authorities, the Court of Appeal ultimately held that the reasoning of Teare J was correct and that, where one vessel is approaching a narrow channel intending to enter it and the other vessel is navigating in the narrow channel intending to exit it, the crossing rule is inapplicable as:

  1. Neither The Canberra Star [1962] 1 Lloyd's Rep 24 nor Kulemesin [2013] 16 HKCFA 195, which were relied upon by Teare J at first instance, were distinguishable;
  2. The risk of potentially different actions being required at the same time was thereby avoided;
  3. This is not a situation where it is necessary to apply the crossing rule to secure safe navigation – and if it is not necessary to apply the crossing rule, it can fairly be said that it is necessary not to apply it, so as to avoid adding a layer of confusion; and
  4. It ensured continuity and a seamless entry into the channel.

In such situations, a vessel navigating within a narrow channel will be obliged to keep to her own starboard side of the channel as far as is safe and practicable (Rule 9) and to navigate reasonably.

As for a vessel preparing to enter a narrow channel, her conduct is governed by the requirements of good seamanship (Rule 2) in that she should (i) do so with caution, (ii) not hamper traffic already navigating within the channel and (iii) navigate in such a manner that, when she reaches the channel, she is on the starboard side of the channel as far as is safe and practicable (Rule 9).
That being said, the Court of Appeal was wary not to over-generalise and acknowledged the authority that:

a) the crossing rule may be applicable when vessels are approaching the junction between two narrow channels (The Leverington (1886) 11 PD 117); and

b) the crossing rule may apply in a situation where a vessel is crossing a narrow channel and another vessel is navigating up or down the channel (The Empire Brent (1948) 81 Ll. L. Rep. 306; The Glenfalloch [1979] 1 Lloyd's Rep. 247).

The need for a sufficiently defined course

As to the need for a sufficiently defined course, the Court of Appeal held that both vessels must be on sufficiently defined courses for the crossing rule to apply. That is of the essence of the crossing rule and as Lord Justice Gross observed, "it takes two to cross".

Comment

While the decision has confirmed the position where one vessel is approaching a narrow channel intending to enter it and the other vessel is navigating in the narrow channel intending to exit it, questions as to the application of the crossing rule may still arise in circumstances where the respective intentions of the vessels in the vicinity of a narrow channel are not readily apparent.

Further, should one vessel be navigating a narrow channel with the other vessel navigating so as to cross at or near its terminus or navigating so as to cross along the course of the narrow channel, the application of the crossing rule may be relevant. Accordingly, while the decision has provided useful guidance in specific circumstances, the rules established in this case must be limited to factually indistinguishable or materially similar situations.

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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