Nautical Challenge v Evergreen Marine UK - The Alexandra 1 and the Ever Smart
Nautical Challenge Ltd v Evergreen Marine (UK) Limited  EWHC 206 (Admlty): High Court of Justice, Queen’s Bench Division, Admiralty Court:
Sir Nigel Teare, sitting as Judge of the High Court, with Commodore Walworth and Captain Barker, Elder Brethren of Trinity House, as Nautical Assessors
Vasanti Selvaratnam QC and James Shirley, instructed by Clyde & Co LLP for the Claimant, the Owners of “ALEXANDRA 1”
Simon Rainey QC and Nigel Jacobs QC, instructed by Stann Marine for the Defendant, Owners of “EVER SMART”
COLLISION: APPORTIONMENT OF LIABILITY: CONVENTION ON THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA 1972 (COLREGS): CROSSING RULE (RULE 15): NARROW CHANNEL RULE (RULE 9): ACTION BY GIVE-WAY VESSEL (RULE 16): ACTION BY STAND-ON VESSEL (RULE 17): CAUSATIVE POTENCY: RELATIVE BLAMEWORHTINESS: COMPELLING NECESSITY
This is the case of a collision between two vessels – the ALEXANDRA 1 and the EVER SMART - with a long dispute history, concerning matters of apportionment of liability. The litigation concerned the meaning and application of the Crossing Rule (Rule 15) and Narrow Channel Rule (Rule 9) of the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGs). On 13 March 2017, the Admiralty Court held that, in the circumstances of the case, the crossing rule did not apply and apportioned liability for the collision 80/20 in favour of ALEXANDRA 1. This decision was upheld on appeal but was overruled by the Supreme Court in a judgment dated 19 February 2021, which held that the crossing rule did apply and that ALEXANDRA 1 was the give-way vessel. As such, the case was remitted to the Admiralty Court, to review matters of apportionment. On that review, liability was apportioned 70/30 in favour of the ALEXANDRA 1.
Case Note contributed by Sri Azali BB (Human Resource Management & Business Law), Paralegal at Penningtons Manches Cooper LLP Singapore
On 11 February 2015, a collision occurred between “ALEXANDRA 1”, a unladen VLCC and the “EVER SMART”, a laden container vessel, outside the dredged channel by which vessels enter and exit the port of Jebel Ali, located in the United Arab Emirates. At about 22:00 on 11 February 2015, ALEXANDRA 1 (at anchor and inbound to Jebel Ali) was instructed by Port Control that a pilot would board at 23:15 and that she should be at buoys no.1 at that time. The pilot in question was on board EVER SMART which was navigating along the narrow channel outbound from Jebel Ali, proceeding to buoys no.1. Port Control advised ALEXANDRA 1 that, once EVER SMART was clear, she could enter the channel. By 23:15 ALEXANDRA 1 was within the pilot boarding area and about 1.4 miles west north of west of buoys no.1. The master observed EVER SMART and monitored her movements by radar and at 23:18, ALEXANDRA 1 had stopped her engines and her speed over the ground was 2.3 knots and falling – she was moving very slowly and waiting for the pilot. The audio record was reliable evidence that the vessels were in sight of each other at about 23:19 and it was common ground that the vessels were on bearings that did not appreciably change. By 23:27 the speed of ALEXANDRA 1 had fallen to 1.3 knots over the ground – she was proceeding very slowly in a generally East South Easterly direction, as indicated in the plot attached to the first High Court judgment – see attachment.
At 23:26, the master of ALEXANDRA 1 overheard a conversation which he mistakenly thought was between EVER SMART and Port Control, leading him to believe that EVER SMART was about to turn to port at the end of the narrow channel in order to pass astern of ALEXANDRA 1. But for this conversation, ALEXANDRA 1 would – at about 23:28 - have turned to starboard towards the channel, in order to pass EVER SMART port to port. Instead, she continued to head, very slowly, across the approaches to the channel. When the master of ALEXANDRA 1 noticed that EVER SMART was not turning to port as expected, he put the engines full astern. However, this was too late to avoid a collision west north-west of buoys no.1. At the time of the collision the speed of ALEXANDRA 1 was 2.4 knots.
At about C-10 (10 minutes before the time of the collision), EVER SMART was slightly to port of mid-channel and was passing buoys no.3. Before leaving the EVER SMART, the pilot advised the master that there was a vessel to port and that he should take care. But EVER SMART never regained the starboard side of the channel. At C-5, the speed of EVER SMART was 9.5 knots over the ground and her engines were increased to half ahead. At C-4, her speed was 9.6 knots and her engines were increased to full ahead. It was more likely than not that the master of EVER SMART observed ALEXANDRA 1 shortly after the pilot left his vessel, but he did not keep her under his observation, as he assumed that the vessels would pass safely port to port. EVER SMART’s engines were increased to full sea speed and at about 30 seconds before the collision, both Port Control and the pilot advised EVER SMART to go hard to starboard, in an attempt to pass ahead of ALEXANDRA 1. EVER SMART’S helm was put hard to starboard but it was already too late. Her speed was 12.4 knots at collision – when the port bow of the EVER SMART struck the starboard side of ALEXANDRA 1.
In re-determining the apportionment of liability, the judge compared the relative causative potency and blameworthiness of the two vessel’s faults. With regard to the assessment of causative potency, the judge used the broad lines of approach set out below:
(i) The nature and quality of a ship’s faults, rather than their number;
(ii) Breaches of obligations imposed on ships in certain defined situations by the Collision Regulations, for instance, the Narrow Channel rule;
(iii) Rule 9 of COLREGs sets out the rules for narrow channels: crossing situations are covered by Rule 15, action to be taken by the give-way vessel is set out in Rule 16 and Rule 17 sets out the action to be taken by the stand-on vessel;
(iv) The two aspects of causative potency – first the extent to which the fault contributed to the collision and, second, the extent to which the fault contributed to the damage resulting from the casualty;
(v) In most cases it will be right to treat the fault of a ship that creates a situation of difficulty as greater than that of the ship that fails to react properly to such situation after it has been created;
(vi) The fact that a fault consists of a deliberate act or omission may in certain circumstances justify the court in treating it as more culpable than a fault which consists of omission only;
(vii) Apportionment pursuant to section 187 of the Merchant Shipping Act 1995 requires an apportionment of liability in proportion to the degree in which each ship was at fault.
The Judge explained that, prior to the Supreme Court’s decision, he would have considered that a crossing vessel had to be on a settled or defined course. The Supreme Court considered it sufficient that the vessels were approaching each other on a steady bearing over time, even if the give-way vessel was not on a settled heading, as was the case here.
The judge also considered that the Supreme Court had in mind that, when a vessel was on her final approach and shaping to enter the channel, that there was a “compelling necessity” (the wording used by the Supreme Court) to disapply any crossing rule, which might have previously applied, because there was no longer a crossing situation which involved a risk of collision. He considered this explanation to be consistent with the reasoning in the earlier cases of Kulemesin -v- HKSAR  16 HKCFA 195, The Canberra Star  1 Lloyd’s Rep 24 and The Kaiser Wilhelm der Grosse  P.36 and 259, in which it was held that the crossing rule did not apply.
In re-determining the apportionment of liability, the judge compared the relative causative potency and blameworthiness of the two vessel’s faults, and stated as follows:
1. Both vessels contributed to the fact that a collision took place. By failing to make a substantial turn to starboard by C-13 to keep well clear of EVER SMART, ALEXANDRA 1 had breached Rules 15 and 16, and permitted a close quarters situation to develop close to the entrance to the channel. EVER SMART, by failing to keep to the starboard side of the channel from C-10, had breached Rule 9, and failed to take appropriate action to avoid a collision, pursuant to Rule 17(a)(ii) or (b). However, ALEXANDRA 1’s fault was the greater of the two, being the earlier fault that allowed the close quarters situation to develop.
2. With regard to each vessel’s relative contribution to the damage caused by the collision, the speed of EVER SMART at collision was likely to have made a far greater contribution, as compared to that of the ALEXANDRA 1. The speed of EVER SMART at collision was 12.4 knots, whereas the speed of ALEXANDRA 1 at collision was 2.4 knots.
3. The causative potency of EVER SMART’s faults exceeded the causative potency of ALEXANDRA 1’s faults. The extent to which EVER SMART’S contribution to the damage exceeded ALEXANDRA 1’s contribution to the damage was greater than the extent to which ALEXANDRA 1’s contribution to the fact of the collision exceeded EVER SMART’s contribution to the fact of the collision.
4. In terms of relative blameworthiness, the Judge found that the faults of EVER SMART were much more culpable than those of ALEXANDRA 1 for the following reasons:
There was mitigation for ALEXANDRA 1’s breach of the crossing rule. ALEXANDRA 1 was moving at very slow speed and she ought to have been apparent to EVER SMART. Keeping to the starboard side of the channel, as was the duty of EVER SMART, would have avoided a collision. EVER SMART’s breach of the narrow channel rule must have reinforced ALEXANDRA 1’s misunderstanding of EVER SMART’s intentions and to that extent there was mitigation for ALEXANDRA 1’s breach of the crossing rule. There was no such mitigation available for EVER SMART’s breach of the narrow channel rule, along with a lack of lookout on the part of EVER SMART.
The judge held that in circumstances where the faults of EVER SMART were both more causatively potent and more blameworthy than those of ALEXANDRA 1, the previous apportionment of 80/20 in favour of ALEXANDRA 1 should be revised. The judge concluded accordingly that EVER SMART should bear 70% of the damage caused by the collision, and that ALEXANDRA 1 should bear 30%.
In a decision rendered in the Admiralty Court in 29 January 2019, the recoverable loss of ALEXANDRA 1 had been assessed as USD9,308,595 and that of EVER SMART at USD2,531,374, on the 80/20 basis of apportionment.
Comment This case confirms that where a collision occurs between a vessel approaching a narrow channel (with the intention to proceed along it), and a vessel exiting the channel, the judge will need to establish whether the former vessel was in fact “on her final approach” and “shaping to enter the channel”. If she was, then the crossing rule will not apply. If she was merely approaching the channel with the intention to proceed along it, the crossing rule will continue to apply.
Rule 9 - Narrow Channels
(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...
(f) A vessel nearing a bend or an area of a narrow channel or fairway where other vessels may be obscured by an intervening obstruction shall navigate with particular alertness and caution and shall sound the appropriate signal prescribed in Rule 34(e).
(g) Any vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel.
Rule 15 - Crossing Situation
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.
Rule 16 - Action by Give-way Vessel
Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear.
Rule 17 - Action by Stand-on Vessel
(a) (i) Where one of two vessels is to keep out of the way the other shall keep her course and speed.
(ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.
(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.