The United Kingdom Supreme Court handed down its final decision in the Ever Smart and Alexandra 1 collision case on 19 February 2021 and overturned earlier judgment by the Court of Appeal (Mr. Justice Teare [2017] 1 LI.R.66 and of the Court of Appeal [2019] 1 Ll.R.130.). As one of the most important decisions in the history of the UK’s highest court, it offered an updated view on the particular issue of how the rule on a crossing situation and the narrow channel rule in the Collision Regulations are applied. By going through the judgment and analysis of the case, this article is prepared to highlight some key lessons in safe navigation and handling of collision incidents.

I.       Summary of the case

The two vessels collided at 23:42 on 11 February 2015 near the entrance to the buoyed approach channel in Jebel Ali, United Arab Emirates. MV Ever Smart, carrying 48,000 tons of cargo in containers, was heading outbound along the channel while MV Alexander 1, carrying 113,915 tons of liquid cargo, reached the entrance and moved very slowly ahead, waiting for the pilot from the container ship to board. As a result of ineffective actions in avoiding collision, both vessels suffered major damage to their bows. At the time of the accident, the container ship was moving at a speed of 12.4 knots with a heading of 323.9° and a course over the ground of 316°. The tanker was moving at a speed of 2.4 knots with a 104.4° COG and a 101.2° HDG.

II.     Trials and decisions

1.      Judgment by the admiralty court

The judge Teare J held that the Collision Regulations are not drafted to require different actions under two separate rules to be taken at the same time, which can be confusing and hazardous to navigational safety. Accordingly, he concluded 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. The court then apportioned liability Ever Smart 80 percent and Alexandra 1 20.

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His other main reason for reaching that conclusion was that it cannot have been intended by those who drafted the Collision Regulations that there would be two sets of rules with different requirements applying at the same time as this would cause confusion and not be in the interests of safety. He accordingly concluded that “the crossing rules cannot have been intended to apply where one vessel is navigating along a narrow channel and another vessel is navigating towards that channel with a view to entering it” (para 53).

In terms of causative potency, the judge did not consider that there was a marked difference in quality between the contribution which each vessel made to the fact that the collision occurred. Having regard, however, 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.

In the light of these conclusions, the judge’s conclusion on apportionment was that EVER SMART should bear 80% of the liability for the collision and ALEXANDRA 1, 20%.

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2.      Judgment by the appellate court

The court of appeal supported the decision of the admiralty judge and held that first, the rule on the crossing situation is to be disapplied in favour of the narrow channel rule, and second, MV Alexandra 1 was not on a steady course for the crossing rules to be engaged.

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The Court of Appeal upheld the judge’s conclusion that the narrow channel rules applied to the exclusion of the crossing rules.

The Court of Appeal also upheld the judge’s conclusion that the ALEXANDRA 1 needed to be on a sufficiently defined course for the crossing rules to apply and rejected a challenge to his finding that she was not on such a course. Gross LJ considered that this conclusion was supported by observations made in various authorities as well as the decision of Brandon J in The Avance [1979] 1 Lloyd’s Rep 143.

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3.      Judgment by the supreme court

The Ever Smart then appealed two legal issues to the supreme court:

QUESTION 1: On the proper construction of the Collision Regulations, are the crossing rules inapplicable or should they be disapplied where an outbound vessel is navigating within a narrow channel and has a vessel on her port (or starboard) bow on a crossing course approaching the narrow channel with the intention of and in preparation for entering it?

QUESTION 2: On the proper construction of the Collision Regulations, in determining whether the crossing rules are applicable, is there a requirement for the putative give-way vessel to be on a steady course before the crossing rules can be engaged?

The supreme court first acknowledged that the Collision Regulations are an IMO convention that are given the force of law in the UK. As an international convention, it should be interpreted by reference to broad and general principles of construction rather than any narrower domestic law principles.

As regard to the second question, the supreme court held that neither the give-way vessel nor the stand-on vessel had to be on a steady course for the crossing rules to be engaged. Instead, two crossing vessels should be approaching each other and remain on a steady bearing with consequent risk of collision.

Further to address the first question, the supreme court identified three broad groups of situations where the inter-relationship between the crossing and narrow channel rules needed to be considered.

Group 1 are vessels which are approaching the entrance of the channel, heading across it, on a route between start and finishing points unconnected with the narrow channel. They are approaching the entrance of the channel, but not intending or preparing to enter it at all. Group 2 are vessels which are intending to enter, and on their final approach to the entrance, adjusting their course to arrive at their starboard side of it. Group 3 are approaching vessels which are also intending and preparing to enter but are waiting to enter rather than entering.

The supreme court held that the crossing rules would apply in a Group I case, but not in a Group 2 case because the approaching vessel is already shaping on her final approach. The present case fell with Group 3 and the crossing rules should continue to apply because Alexander 1 had not yet shaped to enter the narrow channel on her final approach but was waiting for the pilot at the entrance.

The supreme court concluded on the first question as “where an outbound vessel in a narrow channel is crossing with an approaching vessel so as to involve a risk of collision, the crossing rules are not overridden by the narrow channel rules merely because the approaching vessel is intending and preparing to enter the narrow channel. The crossing rules are only overridden if and when the approaching vessel is shaping to enter, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.”

The supreme court overturned previous judgment and gave negative answer to both questions, concluding that the crossing rules did apply to the case but it by no means necessarily follows that this should result in some different apportionment of liability, which shall be re-determined later by the admiralty court.

III.        Lessons learned and recommendations

1.      This is the first appeal in a collision action to come before the supreme court in the last 50 years since the last such appeal before the House of Lords – The Savina [1976] 2 Lloyd’s Rep 123. The interpretation on the two rules and their applicability values in guiding trials of such cases under the English law.

2.      The supreme court referred to the interpretation of the crossing rules in The Alcoa Rambler [1949] that “wherever possible” the crossing rules “ought to be applied and strictly enforced because they tend to secure safe navigation”.

3.      Each and every rule of the Collision Regulations is inextricably interwoven, and it is of great importance to understand the interrelationship between them. Although the legal system in China is different, the Ever Smart/Alexander 1 case is of reference value to the judgment of such collision cases as well as the apportionment of liabilities.

4.      Navigation in waters near ports can be challenging with heavy traffic and restricted maneuverability. Hopefully, the interpretation of the rules can be of practical significance to navigating officers and help deepen their understanding of the Collision Regulations.

5.      Masters and navigating officers should be aware that dependence on pilots for coordination shall be avoided when navigating in narrow channel or restricted waters near ports. Instead, they should be able to predict the possible movement of nearby vessels and have ready an emergency plan of effective collision prevention measures to be taken in accordance with the Collision Regulations.

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