Supreme Court provides clarity over colregs and crossing rules in Evergreen appeal win
12 March 2021
Maritime lawyers have hailed a 'seminal' UK Supreme Court ruling that 'provides clarity and practical guidance' on the interpretation of the international collision prevention regulations (colregs).
The judgment – said to be the first of its kind for 45 years – upheld an appeal by Evergreen Marine (UK) against previous High Court and Appeal Court rulings on responsibility for a collision between the UK-flagged containership Ever Smart and the Marshall Islands-registered very large crude carrier (VLCC) Alexandra 1 in 2015.
Both ships suffered serious structural damage in the accident, which occurred as the 7,024TEU Ever Smart was leaving the port of Jebel Ali at a speed of 12 knots and struck the inbound tanker, which was moving ahead slowly while awaiting a pilot.
A UK Marine Accident investigation Branch report concluded that no passing arrangement had been agreed by the two ships, and the action of both masters had been based on assumptions – with the VLCC being 'unnecessarily close' to the channel entrance and Ever Smart's bridge team failing to keep a proper lookout or monitor the tanker's movement.
The court cases centred on the liability for almost US$12m worth of loss and damages arising from the accident – which took place near to the entrance of the port's narrow buoyed approach channel – and which section of the colregs should have applied in the situation.
Evergreen Marine had argued that the crossing rules applied, and Alexandra 1, as the crossing vessel, should have given way. But the tanker's owners disputed this, claiming that the crossing rules did not apply at the mouth of the channel and that Alexandra 1 was drifting at low speed and was therefore not on a sufficiently steady course.
Both the High Court and the Appeal Court had ruled in favour of the Alexandra 1's owners, on the basis that the narrow channel rule (9) in the colregs took primacy over the crossing rule (15).
But, in a unanimous decision, the five Supreme Court judges determined that 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'.
Instead, they argued, the crossing rules should be overridden only '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'.
They also ruled that neither a give-way ship or a stand-on vessel needs to be on a steady course for the crossing rule to be engaged. 'If it is reasonably apparent to those navigating the two vessels that they are approaching each other on a steady bearing (over time) which is other than head-on, then they are indeed both crossing, and crossing so as to involve a risk of collision, even if the give-way vessel is on an erratic course,' the judgment states.
The 60-page judgment stresses that the colregs are of 'cardinal importance to the safety of navigation' and warns that it is essential the rules are clear and applied in a uniform manner.
The judges noted that the issues raised by the case are of real importance to mariners, and to the effectiveness of the Collision Regulations – pointing out that crossing situations are common in narrow harbour entrances all over the world and that crossing rules should not be overridden 'unless there is a compelling reason to do so'.
The judgment also highlights the importance of keeping a good visual lookout and of taking bearings to assess whether a risk of collision exists, noting that at the time of the accident Alexandra 1's AIS was not working and that Ever Smart's ARPA was targeted on the pilot launch rather than the VLCC right up to the moment of collision.
The judges said it was 'a striking feature' of the case that the two ships had been approaching each other on a steady bearing for the entire 23-minute period before the collision.
Simon Rainey QC, who headed Evergreen's legal team, said the judgment was extremely useful – providing important clarity over the application of the collision prevention rules, as well as upholding the importance of the crossing rule and delivering practical guidance on issues such as heading, course and bearing.
The judgment describes the circumstances in which the crossing rules would be held to apply to vessels approaching or heading across the entrance of a narrow channel and to vessels intending and preparing to enter. The rules would not apply, however, to vessels on their final approach to the channel and adjusting their course and speed to do so.
The Supreme Court said the Admiralty and Appeal Courts' previous rulings that Ever Smart had 80% liability for the costs of the accident and that Alexandra 1 was 20% liable would now need to be reassessed.