Legal 500, 2021
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Partner Kevin Cooper reviews the Supreme Court collision case Evergreen Marine (UK) Limited v Nautical Challenge Ltd: the collision between the Ever Smart and the Alexandra I
February 23 2021
One Minute Briefing – All a non-mariner needs to know about the recent Supreme Court judgment on the collision between the Ever Smart and the Alexandra I
On Friday 19 February 2021, the UK’s Supreme Court handed down its judgment in Evergreen Marine (UK) Limited v Nautical Challenge Ltd [2021 ] UKSC 6: the collision between the Ever Smart and the Alexandra I that occurred six years ago this month. It is the first shipping collision appeal to come before the UK’s highest court since 1976 (just about within the writer’s lifetime).
How do courts decide collision cases?
For those not familiar with collision cases, ships and boats are required to comply with the Convention on the International Regulations for Preventing Collisions at Sea 1972 (COLREGS), as amended (the “Collision Regulations”, or “Rule of the Road”). Under the Collision Convention (which is applied in England, as well as widely elsewhere), the Court is required to apportion responsibility for collisions between vessels, applying the Collision Regulations and any other applicable laws (such as local navigational regulations). The apportionment can be, for example, 50:50, 70:30, 80:20, or indeed any other ratio that the Court decides. When both vessels are under way (as in this case), both are almost invariably at fault to some extent, so it will rarely (if ever) be 100:0. In a crossing situation, it is usually the give-way vessel that bears the greater proportion of blame.
Why is this case important?
I handled this case when at my previous firm in the trial before the (former) Admiralty Judge and up to obtaining leave to appeal from the Court of Appeal. I remember that I learned of the Admiralty Judge’s decision on a telephone call from one of the team while I was in a meeting with barristers on another case. I was at first delighted to learn that the Judge had apportioned responsibility for the collision 80/20 (better than I had personally expected...), until I realised that it was 80/20 against our clients’ vessel. That result remains the greatest upset of my career as a lawyer and, while it is of course gratifying that the Supreme Court has endorsed the consistent views of the team, our clients and their insurers since the story began all those years ago (as well as a number of commentators on the decisions of the lower courts in this matter), it is of most importance that the Supreme Court’s decision will contribute to navigational certainty, and therefore safety at sea.
What did the Supreme Court have to decide?
The judgment is 60 pages long and there are plenty of articles on it for those who would like more detail, but all you really need to know is as follows. The container vessel Ever Smart had left Jebel Ali in the UAE, proceeding northbound and about to exit a narrow channel. The large tanker Alexandra I was just outside the narrow channel, waiting in the designated pilot boarding area to enter it, drifting slowly east (from left to right on a chart). She crept across the entrance to the channel so as to place herself in front of the Ever Smart, and you can guess the rest (she did so because she had misunderstood a VHF radio call from shore authorities intended for another vessel, but now is not the time to discuss “VHF-assisted collisions”).
Although there were other interesting issues along the way (including the methodology used by the courts to assess apportionment of liability, but perhaps that, too, is for another day), by the time the case reached the Supreme Court the dispute mainly boiled down to which of two (sets of) rules took precedence: the Crossing Rules or the Narrow Channel Rule.
In outline, the Crossing Rules state that, as between power-driven vessels, a vessel that has another vessel on her starboard (right-hand) side has to give way to that other vessel. So, if the Crossing Rules applied in this case, the Alexandra I would have to give way to the Ever Smart. These are straightforward rules that are applied many hundreds of thousands (perhaps millions) of times every day by mariners. The lights shown by vessels at night assist the use of these rules, as a vessel seeing the red sidelight of another vessel will generally know to give way to it and one seeing a green one will generally know that they are the vessel with right of way.
The other relevant Collision Regulation is the Narrow Channel Rule, which requires vessels using a narrow channel to “drive on the right” of the channel. This Rule has been extended outside the entrance/exit to narrow channels (marked by a pair of buoys), such that vessels preparing to enter a narrow channel should line themselves up to do so sufficiently in advance to enter the narrow channel on the right-hand side.
In outline, the Admiralty Judge found that, in the circumstances of the case, the Narrow Channel Rule took precedence over the Crossing Rule. The Court of Appeal agreed with him. The Supreme court did not.
What did the Supreme Court decide?
In summary, the Supreme Court found that it is only when the vessel entering a narrow channel is shaping up to enter it on its “final approach” that the Narrow Channel Rule takes precedence over the Crossing Rule. In all other cases (such as in this case), the Crossing Rules apply, applying the reasoning that any rule should only be displaced to the minimum extent necessary to avoid danger and uncertainty. The Court was also asked to consider whether it was necessary for the give-way vessel to be on a steady course in order for the Crossing Rules to apply. Robustly dismissing the Court of Appeal’s ruling on this point, the Supreme Court found that it was not, as long as the give-way vessel was on a sufficiently steady bearing from the stand-on vessel (which the Alexandra I was, albeit her heading changed erratically). Although not required to consider the matter, the Supreme Court also commented that the same principles apply to the course of the stand-on vessel. Apportionment of liability will now be considered, in light of the Supreme Court’s decision, by the Admiralty Court.
What is the significance of the decision?
In light of the English Courts’ continued role in ruling on collisions in all parts of the world, their decisions matter. A lot. Cases such as this go beyond the commercial courts’ usual responsibility for deciding financial issues and have a potential impact on navigational safety. In my opinion, the former Admiralty Judge’s and Court of Appeal’s decisions may (possibly) have been justifiable based on legal logic but ignored the fact that, in order to avoid collisions and the impact on lives, the environment and property, mariners need straightforward rules that they can apply quickly. The Crossing Rules are such rules, and the need for simplicity and certainty amongst all users of the Collision Regulations (both professional and amateur) was stated by the Supreme Court to be an important guiding factor. They made the point that when it was necessary for the Crossing Rules to be overridden it should be clear to both vessels (which, in the context of this case, it will be only when the vessel entering the narrow channel is on its “final approach” and lining up to enter the narrow channel). It seems to me that the convoluted evaluation that a bridge watchkeeper would be required to make when in the vicinity of a narrow channel as a result of the earlier judgments in this case (I can see the other vessel’s green sidelight, so am I the stand-on vessel, or do I have to give way because I think she is intending to enter the channel?) could only lead to less certainty, and therefore danger. The Supreme Court clarified that it is necessary to take a purposive approach to the interpretation of the Collision Regulations, and that is what they did.
So congratulations to the Ever Smart team who steered this case safely into port. Based on what I consider to be the flawlessly reasoned and definitive guidance provided by the Supreme Court (informed, might I suggest, by Lord Briggs’ background and practical experience as an experienced recreational sailor?) I hope it is not another half century before the next such case comes before it!
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