QUEEN'S BENCH DIVISION
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
B e f o r e :
sitting with Captain Stephen Gobbi and Captain Nigel Hope,
Elder Brethren of Trinity House, as Nautical Assessors
| NAUTICAL CHALLENGE LTD
"Alexandra 1 Interests"
|- and -
|EVERGREEN MARINE (UK) LTD
"Ever Smart Interests"
James M Turner QC (instructed by Ince & Co LLP) for Evergreen Marine (UK) Limited
Hearing dates: 16, 18 and 19 January 2017
Crown Copyright ©
Mr. Justice Teare :
The dredged channel and pilot boarding area
The weather conditions
The time and place of collision
The navigation of ALEXANDRA 1 leading up to collision
The navigation of EVER SMART
The applicability of the crossing rule
"When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel."
"As I understand the principles which apply in narrow channels it has been laid down for many, many years that, although the crossing rule does from time to time have to be applied in narrow channels (when, for instance, a vessel which is crossing the channel has to act in relation to a vessel which is proceeding up or down the channel), nevertheless, when vessels are approaching each other, navigating respectively up and down the channel, it is Article 25 of the Collision Regulations [then the narrow channel rule] which applies and which applies exclusively. There is no room in such a situation for applying the provisions of the crossing rule at the same time as the provisions of the narrow channel rule, because the requirements of the rules are different."
"In the particular circumstances of this case where vessel A, proceeding down river outside the channel, intending to enter it, sees an upcoming vessel B approaching in the next reach, bearing on her starboard side, on a main channel course which, if followed into the reach in which A is navigating, will or should enable the two vessels to pass safely port to port by reason of the fact that B should keep to her own starboard side, the crossing rule does not, in my opinion apply. "
"In my view, where one ship is proceeding along a narrow channel in one direction, and another ship is proceeding along the same channel in the other direction, even though their courses are crossing so to involve risk of collision, the narrow channel rule governs the case, and not the crossing rules; The Kaiser Wilhelm Der Grosse  P. 259, The Heranger  62 Ll.L. Rep. 204,  AC 94 , The Empire Brent (1948) 81 Ll. L. Rep. 306. If one of the ships is not proceeding along the channel at all, but crossing more or less directly from one side of it to the other, then the crossing rules may apply; see the observations of Mr. Justice Willmer in the last of the three cases referred to above at p.312, left hand column. They may also apply where there is a junction between one channel and another, and the two ships concerned are in the first place proceedings along different channels so as to meet at such junction; The Leverington (1886) 11 PD 117."
"…vessels approaching a narrow channel and intending to proceed along it are not bound by the crossing rule but must enter the channel and, as they do so, keep as near to the starboard side as is safe and practicable in accordance with r.9. It seems to me to follow that a vessel shaping to enter the channel should, as a matter of good seamanship, navigate in such a manner that, when she reaches the channel, she is on the starboard side of the channel in accordance with r.9."
"Safety requires a vessel approaching the channel so as to proceed along it to navigate so that if the vessels pass in the channel they will pass port to port. This will be achieved if the narrow channel rule applies. If it does not, there is considerable scope for confusion. "
"The consideration of the situation must be carried further back to the time when these vessels were approaching towards the spot where the collision took place, and would if they continued doing what each of them was respectively doing, arrive at that spot so as to involve risk of collision. ……….They were in fact converging on a spot on courses and at speeds which would probably bring them to that spot so as to present a danger of collision when they reached it, which each of them would in the course of her navigation, and their Lordships are of the opinion that in these circumstances the vessels were vessels crossing so as to involve risk of collision and that arts 19, 22 and 23 [the crossing rules] were applicable."
"The test always is: was what was being done open and notorious to a seaman on the other ship in the ordinary course of navigation……The ordinary idea of a course is a sufficiently constant direction of a ship on the same line or heading. This will enable a navigator when he sees the other vessel to know if she is on a crossing course. He can often only become aware of that if he can keep the other vessel under observation for sufficient time to ascertain if she is or is not changing her heading…… "
The faults of EVER SMART
The narrow channel rule
"Did good seamanship require EVER SMART to acquire ALEXANDRA 1 as an ARPA target and, if so, when should that process have been initiated having regard to the time it would take to capture the echo of ALEXANDRA 1 as a reliable ARPA target ? Was it required when the pilot was on the bridge advising the master, when he left the bridge, or when he had disembarked the vessel? How long would it take to capture the echo as a reliable ARPA target?"
"Despite the duties and obligations of the pilot, his presence on board does not relieve the master or officer in charge of the watch from their duties and obligations for the safety of the ship. As a matter of accepted best practice in Bridge Team Management and good seamanship, particularly when under pilotage, the master and officer of the watch of EVER SMART should have acquired ALEXANDER 1, amongst other vessels, as soon as it had been detected on radar as a target. This would have been at least 5 miles before the departure position of the pilot. Furthermore, the use and monitoring of ARPA (either manually acquired or automatically acquired) should have been assigned to a single officer as part of the Bridge Team. The automatic detection of radar screen displayed AIS targets is not a substitute.
ARPA is designed to provide continuous, accurate and rapid situation evaluation. The performance standards and accuracy of ARPA are a matter of an IMO Resolution based on steady state tracking and straight line course and constant speed of both own ship (EVER SMART) and target ship (ALEXANDER 1). In summary the longer the steady state tracking the more accurate the displayed information. In this case, in our opinion, a minimum of 3 minutes should have been sufficient to obtain increasingly valuable data and the warning of a distinct risk of collision (at zero or very low CPA)."
"Assuming that a good lookout was kept on board EVER SMART and that EVER SMART complied with the narrow channel rule what engine orders ought to have been given on board EVER SMART when the pilot vessel was clear of her at about C-6. Was it in accordance with good seamanship to increase the speed of the engine successively from C-5 to C-3 to full sea speed ?"
"EVER SMART, in decreasing speed to land the pilot while still in the buoyed channel, was allowed to set and drift to her port. This resulted in the vessel being on the wrong side of the channel by C5. Increasing speed as soon as the pilot vessel was clear would have reduced the effect of the wind (drift) on this large high-sided container vessel and therefore an increase of speed through the water in combination with an alteration of heading to starboard was the correct manoeuvre. Full Ahead Manoeuvring (57 RPM) would, in our opinion, be a reasonable action.
To immediately order Full Sea Speed (increasing to 80 RPM) and therefore increasing to 20 to 21 knots through the water without being on immediate engine manoeuvring status was not good seamanship. This should only have been ordered once the vessel was clear of the narrow channel, the pilot boarding and landing area and any concentrated traffic. At the earliest, once clear of the Fairway Buoy would be a reasonable position to consider Full Away."
Failure to take avoiding action
Failure to sound 5 short blasts or to flash a light
The faults of ALEXANDRA 1
Approaching too close to the end of the narrow channel
"Did good seamanship require ALEXANDRA 1 to keep a certain minimum distance from buoys no.1 so long as EVER SMART was still in the dredged channel and if so what was that distance ? "
"Subject to a good aural and visual lookout, it would be reasonable and good seamanship for the Master of Alexander 1 to have approached the first pair of buoys keeping close to her own side of the entrance channel."
Failure to navigate in such a manner that, when she reached the channel, she would be on the starboard side of the channel in accordance with the narrow channel rule
Failure to flash a light
Apportionment of liability
Relative causative potency
Conclusion on apportionment