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Web Alert: Liability in ship collision appeal - Evergreen Marine (UK) Limited v Nautical Challenge Limited

18 January 2019

In this case, the first instance decision of Teare J was upheld on appeal following a collision that occurred in the narrow channel leading to the entrance of the port of Jebel Ali. It was the first appeal on liability in a collision case to reach the Court of Appeal since 2004. The findings of the Court of Appeal will be of assistance to members in avoiding confusion regarding the application of the Collison Regulations (COLREGs).

 

Facts

On 11 February 2015, the containership Ever Smart collided with the VLCC Alexandra 1 at the mouth of the exit channel from Jebel Ali port. At the time of the collision, Ever Smart was heading outbound from Jebel Ali port whilst the Alexandra 1, having its engines in low speed, was waiting in the pilot boarding area to embark the pilot who had just disembarked Ever Smart. As a result of the collision, significant damage was caused to both ships.

The Admiralty Court [1]

The parties were agreed on the navigational facts. However, a substantial dispute arose regarding liability and applicability of the narrow channel rule and the crossing rule under rules 9 and 15 of the COLREGs.

The owner of 'Ever Smart' alleged that the crossing rule applied and so Alexandra 1 was obliged to give way to Ever Smart.

The owner of Alexandra 1 asserted that the crossing rule had limited application to questions of navigation in and around a narrow channel and did not apply to a ship in a narrow channel and a ship navigating towards that channel in preparation for entering it.

In the court’s view, the crossing rule did not apply in the present case as in the interests of safety, which was the foundation of the COLREGs, the crossing rule could not have been intended to apply where one ship was navigating along a narrow channel and another ship was navigating towards that channel with a view to entering it (The Canberra Star [1962] [2] and Kulemesin v HKSAR [2013] [3] ). It followed that when Alexandra 1 approached the channel, it was not under a duty to keep out of the way of Ever Smart. As a matter of good seamanship, its duty was to navigate in such a manner that when it reached the channel it would be on the starboard side of the channel in accordance with rule 9 of the COLREGs. The fact that it had to embark a pilot did not discharge it from that duty. In any event, Alexandra 1 was not on a sufficiently defined course for the crossing rules to apply.

In addition, it was held that, taking into consideration the unsafe speed of Ever Smart, it contributed far more to the damage resulting from the collision than the lower speed of Alexandra 1. It followed that Ever Smart's fault was greater than that of Alexandra 1.

The Court of Appeal [4]

The matter was appealed on two main issues: namely the applicability of the crossing rule in this scenario, and also whether the judge had erred in law in taking account of the extent of damage sustained by the ships when apportioning liability.

On the first issue, Gross LJ noted 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 consequently agreed with the first instance judgment that the crossing rules did not apply to this situation. On the second issue, Gross LJ concluded that a judge is entitled to take into account excessive speed in certain circumstances.

The Court of Appeal upheld the finding of the Admiralty Judge that the narrow channel rule applied and and the crossing rule did not apply. In dismissing each of the grounds of appeal raised on behalf of Ever Smart's interests, the Court of Appeal confirmed the finding of the Admiralty Court that Ever Smart should bear 80% of the liability for the collision.

Whilst this case was very fact specific, the decision provides useful guidance on:

  • the interaction between the crossing and narrow channel rules
  • the approach to apportionment, especially as regards the treatment of excessive speed.

 

This article intends to provide general guidance on the issues arising as a matter of English law. It is not intended to provide legal advice in relation to any specific query. Members requiring further information on this topic should direct their enquiries to either their usual contact at the club, or to the authors of this article.

Defence cover is, by its very nature, discretionary in that the club must be satisfied as to the merits and quantum of the claim in question and the likelihood of achieving a successful outcome, if it is to lend support.

 

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[1] Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2017] EWHC 453 (Admlty) (13 March 2017)

[2] Lloyd’s Rep 24

[3] Lloyd’s Rep 367

[4] Evergreen Marine (UK) Limited v Nautical Challenge Limited [2018] EWCA Civ 2173