Nautical Challenge Ltd v Evergreen Marine (UK) Ltd

Where one vessel is proceeding in a narrow channel and another is approaching it intending to enter, the crossing rule does not apply concurrently with the narrow-channel rule. The approaching vessel must navigate so that, on reaching the channel, it is on the starboard side. Waiting to embark a pilot does not remove that duty. A vessel already proceeding in the channel must keep to the starboard side even though the other vessel remains outside the channel. Liability for a collision is apportioned by assessing the relative culpability and causative potency of each vessel’s faults. A proper lookout includes effective visual, aural and radar observation. Assumptions based on scanty information are impermissible.

A laden VLCC, ALEXANDRA 1, was waiting outside the entrance to the dredged channel leading to Jebel Ali to embark a pilot. A laden container vessel, EVER SMART, was leaving the port through the channel. The vessels collided outside the channel but within the pilot boarding area.

The principal issue was whether the crossing rule in rule 15 of the Collision Regulations applied between a vessel proceeding along a narrow channel and a vessel approaching the channel to enter it. The court also determined breaches of the narrow-channel, lookout, speed and avoidance duties, causation, and the appropriate apportionment of liability.

1. Crossing rule. Rule 15 did not apply where EVER SMART was proceeding along a narrow channel and ALEXANDRA 1 was approaching the channel intending to enter it. Applying the reasoning in Kulemesin v HKSAR [2013] 16 HKCFA 195 and the observations in The Empire Brent (1948) 81 Ll. L. Rep. 306, simultaneous application of rules imposing different navigational requirements would create confusion and undermine safety. The crossing rule therefore did not impose on ALEXANDRA 1 a duty to keep out of the way.
2. ALEXANDRA 1 nevertheless had to approach the channel so that, when she reached it, she would be on its starboard side under rule 9. Her need to embark a pilot did not absolve her from that duty. EVER SMART was also in breach of rule 9 because she remained to port of mid-channel, although she knew or ought to have known that ALEXANDRA 1 was approaching to enter.
3. EVER SMART’s lookout was seriously defective. The vessel failed to make proper visual and radar observations, failed to acquire ALEXANDRA 1 as a reliable ARPA target within the available time, relied on an unchecked assumption that the vessels would pass safely, proceeded at an unsafe speed, and took avoiding action too late. These breaches caused or materially contributed to the collision and damage.
4. ALEXANDRA 1’s visual lookout was substantially adequate, but her aural lookout was defective. Her master misunderstood a VHF exchange involving another vessel and failed to clarify the misunderstanding. That error caused him not to turn to starboard when he otherwise would have done so. Her failure to flash a light or sound three short blasts was not shown to be causative.
5. Under section 187 of the Merchant Shipping Act 1995, liability was assessed by reference to relative culpability and causative potency. EVER SMART’s faults were substantially more culpable and had greater causative potency, particularly because of her unsafe speed. EVER SMART was liable for 80 per cent and ALEXANDRA 1 for 20 per cent of the collision.