On February 19th this year, the Supreme Court of the United Kingdom delivered a judgement which clarifies the construction of the rules aimed at preventing collisions at sea set forth in the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs) adopted in London in 1972 and entered into force in 1977.
The judgment concerns the case of the collision at sea of a container vessel, Ever Smart, and a VLCC, Alexandra 1, which occurred in 2015, just outside the entrance/exit channel to the port of Jebel Ali in the United Arab Emirates.
The Case
The Ever Smart is a 6900 TEU container ship (300 metres long and 43 metres wide) registered in the UK, and the Alexandra 1 is an oil tanker (270 metres long and 46 metres wide) registered in the Marshall Islands.
Close to midnight hours on February 11st, 2015, the Ever Smart had just disembarked a pilot and was proceeding up a narrow channel, which connects the Jebel Ali port with the open sea, in order to exit the port. Alexandra 1 was inbound to that port but had not entered the channel as she was waiting at the pilot boarding area to pick up the pilot who had just left the Ever Smart.
Both vessels maintained their courses until they collided at approximately 4 cables from the mouth of the channel without having made evident manoeuvres to avoid the collision. Among the causes described in the final report of the investigation carried out by the MAIB (Marine Accident Investigation Branch in the United Kingdom), there was a failure to implement monitoring and supervision practices by Ever Smart and an inadequate interpretation of VTS directions by the Master of Alexandra I.
The Judgement
The case was put in hands of the UK judicial system where the judges had to assess the liabilities of each party regarding the observance of the applicable international regulations which should have been met; in this particular case, the International Regulations for Preventing Collisions at Sea from1972 (“Collision Rules”).
The interesting thing about this case is that the Court dealt with and settled important questions of construction of said Collision Regulations. In short, the Court had to determine whether the narrow channel rule (Rule 9) took priority over the crossing rules (Rule 15) which applies to open water navigation.
The confusion arises from the fact that manoeuvring operations must be performed with certain anticipation, and circumstantially, a ship may be navigating through a cannel, but very close to its exit, and the other vessel may be in open waters navigating towards a channel in preparation for entering it.
Rule 9 requires vessels proceeding along the course of a narrow channel to keep as near to the outer limit of the channel which lies on her starboard side as possible. On the other hand, Rule 15 (the crossing rules) dictates that when two vessels are crossing —so as to involve a risk of collision— the vessel which has the other on her own starboard side shall manoeuvre to avoid the stand-on vessel, which shall maintain her course and speed.
The First Instance determined —and the Court of Appeal upheld— that “the crossing rules” did not apply, as Alexandra 1 did not have a steady course or bearing and speed, in addition to the fact that she was waiting for entering the channel. In conclusion, the Court of Appeal came into the apportioned liability of 20% to Alexandra 1 and 80% to Ever Smart.
The judgement was appealed to the UK Supreme Court where the previous arguments were reverted to finally determine that the crossing rules applied. Therefore, Alexandra 1, was considered the give-way vessel, which was obliged to take early and substantial action to avoid the risk of collision, regardless the fact that she had no steady bearing, while waiting for the pilot to arrive.
Rule 9 applies to vessels sailing through narrow channels, as well as to vessels intending and approaching to enter a channel. Alexandra 1 was not on final approach to enter because she was waiting for the pilot to board and her course was perpendicular to the cannel; therefore, she is not included in this case.
One of the most remarkable points of this recent judgement delivered by the UK Supreme Court is that it determines that the crossing rule (Rule 15) takes priority over narrow channel rule (Rule 9) under situations of conflict, frequently taking place at the mouth of entrance to channels. The Court decision stablishes that Rule 15 ought to be widely and strictly applied whenever it is possible, because it tends to secure safe navigation.
Conclusion
Notwithstanding the fact the collision was not a consequence of different interpretations of the Rules analysed, as it was determined by the MAIB, this Supreme Court judgment becomes relevant because it settles a recurrent doubt among Masters regarding the application of Rules 9 and 15 during critical situations of navigation at high-density traffic areas where the risk of collision is considerable, as the Court decision places “the crossing rules” above the “narrow channel rules” when the vessels are on open waters.
This judgement sets a considerable precedent for navigation in Argentine jurisdiction water as well, since the COLREGs was ratified by virtue of Law 21 546 in 1977, and it constitutes one of the most important bodies of regulations in navigation safety. Moreover, the Court’s conclusions are particularly relevant under scenarios of large concentration of ships, e.g., the entrance to Canal Punta Indio or the pilot boarding area in front of the port of La Plata; intersection point of four busy channels: Canal Brown, Canal Zona Común, Canal Paso Banco Chico, and the access channel to the port of La Plata.
By Dr. Javier Anibal Ocampo
info@itl-legalconsultants.com
Sources:
https://assets.publishing.service.gov.uk/media/5665aff8e5274a0367000010/MAIBInvReport-28_2015.pdf
https://www.quadrantchambers.com/sites/default/files/media/document/uksc-2018-0216-judgment.pdf
