Evergreen Marine (UK) Ltd v Nautical Challenge Ltd (Rev 1)

In a collision at the entrance to a narrow channel, the crossing rules do not automatically apply merely because vessels are converging and a risk of collision exists. Where one vessel is navigating in the channel to exit and another is approaching to enter, the safer and coherent approach may be to apply the narrow-channel rule and ordinary good seamanship, avoiding conflicting duties and preserving continuity at the entrance. Both vessels must also be on sufficiently defined courses before the crossing rules can operate. Under the Merchant Shipping Act 1995, apportionment requires assessment of both culpability and causative potency. Causative potency includes contribution to the occurrence of the collision and to resulting damage. Excessive speed may therefore be considered when assessing the extent and severity of damage.

Evergreen’s container vessel Ever Smart collided with Nautical Challenge’s tanker Alexandra 1 just outside the dredged channel at Jebel Ali. Teare J held that the crossing rules did not apply, found both vessels at fault, and apportioned liability 80% to Ever Smart and 20% to Alexandra 1 in the judgment reported at [2017] EWHC 453 (ADMLTY).

Evergreen appealed on the applicability of the crossing rules, the requirement for a sufficiently defined course, the alleged restricted manoeuvrability of Alexandra 1, and the relevance of damage severity to causative potency. The central issues were whether the crossing rules governed the encounter and how liability should be apportioned.

Lord Justice Gross gave the leading judgment, with Lord Justices Lewison and Leggatt agreeing. The appeal was dismissed.

1. Crossing rules. Rules 15–17 of the Collision Regulations did not apply. The case concerned a vessel navigating in a narrow channel towards its exit and another vessel already in the pilot boarding area, waiting to enter the same channel. Applying the crossing rules alongside rule 9 could impose conflicting duties concerning course, speed and starboard-side navigation. The approach adopted in The Canberra Star [1962] 1 Lloyd’s Rep 24 and Kulemesin v HKSAR [2013] 16 HKCFA 195 was powerfully persuasive. The rule was confined to materially similar situations.
2. Defined course. Independently, both vessels had to be on sufficiently defined courses before the crossing rules could apply. A mere risk of collision caused by convergence was insufficient. Alexandra 1 was waiting for the pilot vessel rather than proceeding on a sufficiently defined course.
3. Good seamanship and restricted manoeuvrability. Under rules 2 and 9, Alexandra 1 had to approach so that, on entering the channel, she would be on its starboard side. Waiting to embark a pilot did not make her a vessel restricted in her ability to manoeuvre under rules 18(a)(ii) and 3(g)(iii), because pilot transfer had not begun and she could have taken evasive action.
4. Apportionment. Under section 187 of the Merchant Shipping Act 1995, both culpability and causative potency had to be assessed. Causative potency concerned both the contribution to the occurrence of the collision and the contribution to the resulting damage or loss. Excessive speed could properly be considered in assessing the extent and severity of damage. This was not double-counting, provided the court avoided speculation and left detailed damage assessment to the Reference.

The 80:20 apportionment was not erroneous. The appeal was dismissed as a whole.

• Court of Appeal (Civil Division) dismissed Evergreen Marine’s appeal against the High Court judgment.
• High Court of Justice, Queen’s Bench Division, Admiralty Court (Teare J) decided the matter in the judgment at [2017] EWHC 453 (ADMLTY), finding both vessels at fault and apportioning liability 80% to Ever Smart and 20% to Alexandra 1.