Evergreen Marine (UK) Limited v Nautical Challenge Ltd  EWCA Civ 2173
This was an appeal from a judgement of Teare J in the Admiralty Court relating to a collision between the “EVER SMART” and the “ALEXANDRA 1”. The “EVER SMART” was heading outbound from Jebel Ali Port along a narrow dredged channel. Towards the end of the Channel, where the channel opens out into a pilot boarding area, she collided with the “ALEXANDRA 1”, which had approached the “EVER SMART” from a broadly (emphasis added) North West direction and was awaiting a pilot with a view to entering the narrow channel.
The leading judgement of Gross LJ, with which the other members of Court agreed, can be consulted for the detail of each vessel’s navigation immediately before the collision. But for present purposes it will suffice to say that the “ALEXANDRA 1” misunderstood some VHF communications and thought that the “EVER SMART” intended to pass by her stern. That understanding was not shared by the “EVER SMART” and the vessels collided.
Teare J apportioned liability with the “EVER SMART” bearing 80% of the liability, and the “ALEXANDRA 1” 20%.
On appeal the primary issue was whether the COLREGs crossing rules applied to the situation where one vessel is transiting a narrow channel which another vessel is approaching with a view to entering. The Court of Appeal was also asked to consider:
- Whether the “ALEXANDRA 1’s” course, such as it was, (her “course made good” varied between 81 and 127) prevented the application of the crossing rules as it did not amount to a “sufficiently defined course”?
- Whether the Judge had fallen into error in taking account of the extent of damage sustained by the “ALEXANDRA 1” when apportioning liability?
On the first issue, it was held that the crossing rules did not apply to this case. Gross LJ agreed with Teare J that the aim of the COLREGs was to ensure safety and accordingly he considered that a situation in which a mariner could be required to follow two rules requiring different actions at the same time would be unsatisfactory. He therefore agreed with the first instance judgement that the crossing rules did not apply to this situation
However, Gross LJ emphasised that this principle was confined to the facts of the case and that “any rule of law in this regard must be limited to factually indistinguishable or materially similar situations”.
On the second issue it was held that for the crossing rules to apply both the “stand on” and “give-way” vessels must be on sufficiently defined courses – “it takes two to cross”. Gross LJ commented that “the mere fact that there was a risk of collision through convergence is not determinative of whether the crossing rules apply.”
Finally, in relation to apportionment Gross LJ did not consider Teare J had erred and his judgement concluded with a number of observations explaining the appropriate approach to apportionment, including the following:
- Both the culpability and the causative potency of the faults established are relevant to the apportionment of liability.
- Causative potency has two aspects; the first relates to the extent to which the fault contributed to the fact of the collision occurring; the second, to the extent to which the fault contributed to the damage or loss resulting from the collision.
- A Judge is amply entitled to take into account the propensity of excessive speed to increase the damage suffered when undertaking the exercise of apportionment – and thus to have regard in broad terms to the magnitude of damage sustained. However, it had to be borne in mind that the assessment of damage and loss must await the reference, and that the judge cannot engage in speculation - faults and their causative potency need to be proved.