The United Kingdom Supreme Court Clarifies on the Collision Regulations

INTRODUCTION
In the first collision appeal to come before the Supreme Court of the United Kingdom (UK), and nearly 50 years after a collision appeal was last heard by the House of Lords, the Supreme Court has provided clarification on how to construe the International Regulations for Preventing Collisions at Sea 1972, as amended (“the Collision Regulations”) for the purposes of applying the Crossing Rules (Rules 15-17).

BACKGROUND
This appeal concerned a collision at sea between the appellant’s vessel (“Ever Smart”) and the respondent’s vessel (“Alexandra 1”). The collision took place on 11 February 2015 just outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the United Arab Emirates. Alexandra 1 was inbound, while Ever Smart was outward bound. The damage suffered by Alexandra 1 amounted to over US$9.3 million and the damage suffered by Ever Smart amounted to over US$2.5 million.

The Admiralty Court determined that the appellant’s vessel, Ever Smart, should bear 80% of the liability for the collision and the respondent’s vessel, Alexandra 1, should bear 20%. The judge held that the crossing rules (Rules 15-17 of the Collision Regulations) did not apply and therefore that Alexandra 1 did not navigate in breach of Rule 16, the crossing rule which was said by the appellant to have applied to the Alexandra 1.

The Court of Appeal dismissed the appellant’s appeal.

The appellant then appealed to the Supreme Court.

HELD
The Supreme Court unanimously allowed the appeal. Lord Briggs and Lord Hamblen gave the judgment, with which the other members of the Court agreed.

The Court stated that the focus of the appeal is the crossing rules, but it is important to read them in context. A risk of collision between two powered vessels can arise in three different ways and the Collision Regulations establish rules for each: overtaking vessels; vessels approaching each other head-on; and vessels crossing so as to involve risk of collision. “Crossing” means that the vessels’ courses are not parallel but intersecting. “So as to involve risk of collision” may be determined in a variety of ways, but if the vessels are approaching each other on a steady bearing, there will be a deemed risk of collision (rule 7(d)(i)). The crossing rules lie at the heart of the scheme for avoiding collisions where two vessels are approaching each other on a steady bearing (other than overtaking or head-on) and are thereby at risk of collision.

Issue 2: will the crossing rules only engage if the putative give-way vessel is on a steady course?
This question was considered first because it determined whether the crossing rules were even engaged. The Supreme Court found that there was no ‘steady course’ requirement. Furthermore, Alexandra 1 was approaching Ever Smart on a steady bearing for over 20 minutes before the collision, on a crossing course. This was sufficient to engage the crossing rules even though she was not on a steady course. Although it did not arise on the facts, for the same reasons the stand-on vessel needed not be on a steady course to engage the crossing rules either.

Issue 1: the interplay between the narrow channel rules and the crossing rules
The narrow channel rules require vessels proceeding along the course of a narrow channel to keep as near to its starboard side as is safe and practicable (rule 9(a)). The critical question in relation to Issue 1 was which rules applied when one vessel was proceeding along a narrow channel towards its exit and the other vessel was approaching its entrance with a view to proceeding along it. The courts below considered that the narrow channel rules displaced the crossing rules. However, the Supreme Court found that the crossing rules should not be overridden in the absence of express stipulation, unless there is a compelling necessity to do so.

In this case, Alexandra 1 was the approaching vessel, intending and preparing to enter the channel but, crucially, waiting for her pilot rather than shaping her course for the starboard side of the channel, on her final approach. In this scenario, there was no necessity for the crossing rules to be overridden as the narrow channel does not yet dictate the navigation of the approaching vessel. She could comply with her obligations under the crossing rules, whether she was the give-way vessel or the stand-on vessel. Similarly, there was no need to disapply the crossing rules from the perspective of the vessel leaving the channel. The Supreme Court held that the crossing rules are only displaced when the approaching vessel is shaping to enter the channel, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.

Therefore, the crossing rules applied and Alexandra 1, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Ever Smart. As a result, the High Court would need to redetermine the apportionment of liability between the two parties.

COMMENTS
The judgment offers clarification on the collision rules. This is of importance given the various incidences around the world. The decision is important for Kenya because Kenya, by virtue of section 4 (2) of the Judicature Act, Cap 8 applies English law in admiralty matters. Further Kenya acceded to the Collision Regulations on the 15th December, 1992 meaning the same came into force internationally for Kenya on the 15th of December, 1992. Furthermore, Kenya has legislated the Collision Regulations into its law by virtue of sections 203 to 219 of the Merchant Shipping Act, 2009. The decision of the UK Supreme Court will offer tremendous guidance on the topic.

The decision is here http://www.okadvocates.com/blog/wp-content/uploads/2021/02/uksc-2018-0216-judgment.pdf