Problems and uncertainties about crossing and head-on rules continue to worry ships and crews, particularly when two vessels are transiting narrow channels. Mariners and lawyers are still digesting court decisions arising from the collision of the Ever Smart and the Alexandria 1 off Jebel Ali, Dubai in 2015. The decisions of the English Admiralty Court in 2017, upheld by the Court of Appeal the following year were largely in favour of the Alexandria 1—-but the findings attracted critical observations from the Supreme Court in 2021.
The latter aimed to provide clarity in respect of collision regulations and some commentators feel they have. However, the panel convened for a seminar organised by the London Shipping Law Centre in association with 36 Stone, was not so sure. The seminar, attended in person and online, was held at the International Disputes Resolution Centre in London. The chairman, former High Court Judge Sir Nigel Teare, set the scene.
He pointed out that technological innovation had increased the information available for assessing how ship collisions had come about—and, therefore, how fault should be apportioned between the vessels .
Barristers James Shirley of Quadrant Chambers and Christopher Smith KC of Essex Court Chambers summarised the decisions of the lower courts, and the perspectives brought to bear by the Supreme Court. They considered the implications for the Rules comprising the Collision Regulations. Captain Christopher Bordas, berthing pilot for the Thames Estuary and Medway, focused on the effect on the responsibilities and prospective actions of the master and bridge officers once the possibility of a collision became manifest.
The panel noted that the Supreme Court emphasised that the Collision Regulations, based as they were on international convention, should be readily understood by all types of mariners and ships worldwide. The narrow channel steering rules should be simple and certain. As the crossing rules were obviously fundamental to preventing collisions, they should not be overridden “unless there is a compelling reason to do so.” If the vessels were on steady bearings and there was no likely head-on or overtaking situation, then the crossing rules should apply.
Generally, where two vessels are approaching each other in a narrrow channel but heading in opposite directions, both should keep to the starboard side even if they appear visually to be on crossing courses, perhaps because of a bend in the channel.
The role of nautical assessors, sitting with judges, was discussed. The practice varied considerably between courts. It was generally agreed that assessors were there to provide advice which judges were obliged to consider but which was not binding on legal decisions.
The Supreme Court endorsed the observations made in the lower courts that both the Ever Smart and Alexandria 1 had failed to keep adequate look-outs—-and that this had contributed significantly to the accident. The panel members felt it was impossible to overemphasise the importance of active look-outs, beginning with binoculars!
Sir Nigel observed: “there is greater scope nowadays for ingenious submissions.”
The Ever Smart/Alexandra 1 case is being handed back to the Admiralty Court to consider whether the Supreme Court’s findings affect the initial apportionment of fault.
The event took place at the premises of IDRC were many LSLC events take place. Excellent catering and lovely wines…
