Crossed wires over the Crossing Rules – Evergreen marine (UK) Limited v Nautical Challenge Ltd [2021] UKSC 6

This concerned an appeal in a collision action raising significant points in relation to the construction of the International Regulations for Preventing Collision at Sea 1972 (as amended) (“the Collision Regulations”), the first of its kind to be heard by the Supreme Court since The Savina [1976].

The appeal was raised by Evergreen Marine (UK) on the applicability of the crossing rules, after both the Admiralty Court and Court of Appeal found in favour of Nautical Challenge Ltd on the basis that the laden container ship EVERSMART, owned by Evergreen Marine (UK), had committed serious breaches of the Collision Regulations which caused the collision with the ALEXANDRA I, a large crude carrier, owned by Nautical Challenge Ltd.

The collision in 2015 occurred outside a narrow channel leading to port during the night, with visibility reported to be good enough for the vessels to have sight of one another up to 23 minutes prior to contact. Both the EVERSMART and the ALEXANDRA I were steadily approaching one another with the EVERSMART navigating outbound from the port along the channel, and the ALEXANDRA I heading inbound. 

The ALEXANDRA I was waiting within the pilot boarding area to collect the pilot that was disembarking from the EVERSMART, but was not stationary.

Whilst navigating out of the channel, the EVERSMART drifted to its port side and collided with the starboard bow of the ALEXANDRA I causing significant damage.

Although liability was apportioned on the basis that the ALEXANDRA I failed to keep a good aural look out with the Master misunderstanding the severity of the situation, it was held that the EVERSMART was both speeding excessively and breached their obligation under Rule 9 of the Collision Regulations to keep ‘as near to the outer limit of the channel which lies on her starboard side as is safe and practicable’ and consequently these actions were held to be more culpable than those of the former.

Evergreen Marine Ltd appealed on the basis that the Collision Regulations had been interpreted incorrectly and that the crossing rules of the Collision Regulations should have overridden the narrow channel rules. If engaged, this would require the vessel which had the other on her starboard side to keep out of the way (the ‘give-way vessel’) whilst the other vessel was required to keep her course and speed (the ‘stand-on vessel’) and thus the ALEXANDRA I would have been obliged to keep a safe distance from the EVERSMART.

The appeal was allowed.

The Collision Regulations are an International Convention applied worldwide and to this end they should be interpreted practically for international application. Being one of the most widely engaged rules at sea, the crossing rules are instinctive and at the forefront of seafaring as they apply whenever two moving vessels approach one another on a steady bearing (excluding head-on approach and overtaking).

The Supreme Court held that as a matter of construction, the crossing rules should usually take precedence. These rules should only be dis-applied in a narrow channel when an incoming vessel has to adjust course to proceed down its starboard side of the channel. Furthermore, the Supreme Court held that the engagement of the crossing rule was not dependent on the give-way vessel being on a steady course – taking a common sense approach, it is reasonably apparent to those navigating each vessel that they are approaching each other on a steady bearing. In this scenario, ALEXANDRA I was the give-way vessel and EVERSMART was the stand-on vessel, the crossing rules applied over the narrow channel rules and the ALEXANDRA I should have kept clear of EVERSMART, taking early and substantial action to do so.

Being the first of its kind in nearly 50 years to appeal to the Supreme Court on the construction of the Collision Regulations, it will certainly have significant ramifications for vessels entering and exiting narrow channels and has highlighted the importance to observe the different rules in place at the various stages of a vessel’s manoeuvring and navigation. However, the Supreme Court made it clear that despite the Admiralty Court decision being overruled, apportionment of liability may not be significantly impacted and the 80/20 decision in favour of Nautical Challenge Ltd may not be varied when it returns to the Admiralty Court for a decision on liability apportionment.