Supreme Court hands down historic appeal judgment 

By Patrick Murphy, Jonathan Cockerill, and Alexander George, Clyde & Co

 

In the latest twist in the ongoing collision litigation involving the owners of the Ever Smart and Alexandra I, the Supreme Court has allowed an appeal by Evergreen Marine (UK) Limited on the applicability of the crossing rules (Evergreen Marine (UK) Limited v Nautical Challenge Ltd [2021] UKSC 6). 

The Supreme Court’s decision overturned the decisions on the issue in the Admiralty Court and Court of Appeal and is the first decision regarding collision liability by the country’s highest court since the House of Lords gave judgment in The Savina [1976] 2 Lloyd’s Rep 123, almost 50 years ago.

The case concerns the 2015 collision off Jebel Ali between the laden container ship Ever Smart, owned by Evergreen Marine (UK) Limited, and the laden very large crude carrier Alexandra I, owned by Nautical Challenge Ltd. Clyde & Co have represented Nautical Challenge Ltd since the collision.

In 2017, the experienced Admiralty judge Teare J apportioned liability 80:20 in favour of Nautical Challenge Ltd on the basis of the Ever Smart’s very serious breaches of the Collision Regulations. In breach of the narrow channel rule, Ever Smart had drifted from the starboard to the port side of the narrow channel leading from Jebel Ali to the pilot boarding area. The ship was also going much too fast while keeping a defective radar and visual look out, and making assumptions based on “scanty information”. At 23:42 local time, the ship collided with the starboard bow of the Alexandra I, causing significant damage. 

Teare J held that the Alexandra I was also partially to blame for failing to keep a good aural look out, with the result that the Master misheard or misunderstood a relevant VHF conversation and failed to turn to starboard towards the narrow channel. However, Teare J found that the faults of the Ever Smart, particularly its excessive speed, were much more culpable than those of the Alexandra I, and apportioned liability accordingly.

Teare J found that the faults of the Ever Smart, particularly its excessive speed, were much more culpable than those of the Alexandra I, and apportioned liability accordingly

Issue subject to appeal

Following the dismissal of their appeal by the Court of Appeal (Gross, Leggatt and Lewison LJJ) in October 2018, the owners of the Ever Smart appealed to the Supreme Court on one aspect of Teare J’s decision, namely whether the crossing rules applied in circumstances where the Alexandra I was manoeuvring in the pilot boarding area waiting for a pilot with a view to then entering the channel while the Ever Smart (being to the starboard side of Alexandra I) was proceeding in the narrow channel outbound from Jebel Ali towards the pilot boarding area.

Both Teare J and the Court of Appeal had held that the crossing rules did not apply for two reasons: (i) because it could not have been intended that a vessel in a narrow channel might simultaneously be bound to comply with both the narrow channel rule (requiring the ship to keep to starboard) and also the crossing rules (which might require the ship to do something different by requiring it to maintain its course and speed); and (ii) because the Alexandra I (the putative “give way” vessel) was not on a sufficiently steady course for the crossing rules to be engaged, it being insufficient for the stand on vessel alone to be on a steady course. 

Instead, Alexandra I was under an obligation to follow the rules of good seamanship having regard to the requirements of the narrow channel rule as and when it entered the channel. Gross LJ, who gave the leading judgment in the Court of Appeal, noted that “there was neither need nor room for the application of the crossing rules”.

The decision, which overturns the findings of the Admiralty judge and a Court of Appeal experienced in admiralty matters, will be of considerable interest to the maritime community and will have significant ramifications for vessels entering and exiting narrow channels and the rules to be observed at different points of a vessel’s manoeuvre.

Judgment

Following a hearing in October 2020, Lord Briggs and Lord Hamblen (with the agreement of Lord Lloyd-Jones, Lady Arden and Lord Burrows) allowed the appeal. Emphasising that the crossing rules were not to be lightly disapplied, the court found that only when an incoming vessel proceeding from the west was on its final approach to the entrance of the narrow channel (adjusting its course so as to proceed down its own starboard side of the channel) would the crossing rules cease to govern it passing a ship in the narrow channel which was on its starboard side. 

In addition, the court found there was no textual justification in the collision regulation requiring two crossing vessels to be on a steady course before the crossing rules applied. In particular, there was no requirement for either the stand on vessel or the give way vessel to be on a course before the crossing rules applied so long as they were moving relative to each other in a manner that objectively gave rise to a risk of collision.

The decision, which overturns the findings of the Admiralty judge and a Court of Appeal experienced in admiralty matters, will be of considerable interest to the maritime community and will have significant ramifications for vessels entering and exiting narrow channels and the rules to be observed at different points of a vessel’s manoeuvre.

However, it is not clear that it will have any effect on the apportionment of liability in the current case. The Supreme Court took pains to note in their judgment that it did not necessarily follow that the 80:20 apportionment of liability in favour of Nautical Challenge Ltd would be varied as a result of their findings.

The case will now be returned to the Admiralty Court for a decision as to whether the apportionment of liability should be varied in light of the Supreme Court’s ruling.

Patrick Murphy is a partner and Jonathan Cockerill is an associate with Clyde & Co. www.clydeco.com