NAUTICAL CHALLENGE LTD v EVERGREEN MARINE (UK) LIMITED

In a collision near a narrow channel, a vessel waiting to embark a pilot remains subject to the crossing rule if she is moving so as to involve a risk of collision. The give-way vessel must take early and substantial action which is readily apparent and must plan for a safe passing distance. A later decision to shape towards the channel does not retrospectively remove an earlier breach.

The stand-on vessel must keep her course and speed consistently with any other applicable rule, including the narrow channel rule. Apportionment under section 187 of the Merchant Shipping Act 1995 requires a broad, qualitative assessment of relative blameworthiness and causative potency. The stand-on vessel may bear the greater share of responsibility where its independent breaches materially contribute to the collision and damage.

The claim arose from a collision on 11 February 2015 between the laden VLCC ALEXANDRA 1 and the laden container vessel EVER SMART outside the dredged entrance channel to Jebel Ali port. The Admiralty Court initially held that the crossing rule did not apply and apportioned liability 80:20 in favour of ALEXANDRA 1: [2017] EWHC 453 (Admlty). The Court of Appeal dismissed an appeal: [2018] EWCA Civ 2173.

The Supreme Court allowed a further appeal, held that the crossing rule applied, and remitted the matter for reconsideration of apportionment: [2021] UKSC 6. The issue before the court was the parties’ respective faults in light of that ruling and the proper apportionment of liability.

1. Crossing rule. The Supreme Court’s ruling meant that ALEXANDRA 1 was the give-way vessel. She was moving slowly, the vessels were approaching on bearings that did not appreciably change, and the crossing rule applied notwithstanding that she was waiting for a pilot. A vessel on an erratic course need not be on a settled or defined course before the rule applies.

2. Action required of ALEXANDRA 1. Under Rules 8, 15 and 16, she should have appreciated the risk of collision by about C-18 and taken early and substantial action no later than about C-13. The appropriate action was a substantial turn to starboard, planned to achieve a passing distance of at least three cables. Turning towards the channel at C-5 or C-4 was too late, insufficiently substantial and not readily apparent. It could not retrospectively disapply the crossing rule or cure the earlier breach.

3. Faults of EVER SMART. EVER SMART breached the narrow channel rule from C-10 by failing to remain on the starboard side. She also failed to maintain a proper lookout from C-6. Her duty to keep course and speed was moulded by the requirement to comply with the narrow channel rule. Once it was apparent that ALEXANDRA 1 was not taking appropriate action, she should have substantially reduced speed and altered to starboard at the channel exit. Her failure to do so, and her increase to full sea speed, materially increased the damage.

4. Rule 17 and Rule 2. Even if Rule 17(a)(ii) did not impose a mandatory duty on the stand-on vessel, EVER SMART was required to reduce speed under Rule 17(b) when collision could no longer be avoided by ALEXANDRA 1 alone, or under Rule 2(b) because the circumstances created an immediate danger.

5. Apportionment. The court considered both causative potency and blameworthiness. ALEXANDRA 1 made the greater contribution to the fact of collision by allowing a close-quarters situation to develop. EVER SMART’s faults were nevertheless more causatively potent overall and substantially more blameworthy, particularly her failure of lookout, breach of the narrow channel rule and excessive speed. Liability was therefore apportioned 70% to EVER SMART and 30% to ALEXANDRA 1.

6. The same apportionment would have been reached on the alternative assumptions concerning Rule 17(a)(ii) and retrospective conversion from a Group 3 to a Group 2 vessel.

1. Supreme Court allowed the appeal and held that the crossing rule applied, remitting apportionment: [2021] UKSC 6.
2. Court of Appeal dismissed the appeal from the original Admiralty Court judgment: [2018] EWCA Civ 2173.
3. Admiralty Court originally apportioned liability 80:20 in favour of ALEXANDRA 1: [2017] EWHC 453 (Admlty). The present judgment re-determined apportionment at 70:30 in favour of ALEXANDRA 1.