QCR Winter 2018: Excessive speed - a prime example of a fault likely to contribute to a collision occurring and to the severity of the collision
NAUTICAL CHALLENGE LTD v EVERGREEN MARINE (UK) LTD (THE "ALEXANDRA 1" AND "EVER SMART")  EWCA Civ 2173
This decision is an appeal from the High Court's judgement reported by the Club in QCR Summer 2017.
In a nutshell, on 11 February 2015, a collision occurred at the pilot boarding area, which serves as entrance and exit to the dredged channel by which vessels enter and leave Jebel Ali port, between a laden VLCC, Alexandra 1, and a laden container vessel, Ever Smart. Alexandra I was waiting to embark a pilot while Ever Smart was leaving the narrow channel after disembarking the same pilot Alexandra 1 was waiting to embark. The collision took place at night but with clear skies and good visibility. At the time of the collision, the Ever Smart's speed was 12.4 knots and the Alexandra 1's speed was 2.4 knots. The damage to both vessels was considerable.
At first instance, the judge held that the crossing rule could not have been intended to apply where one vessel was navigating along a narrow channel and another vessel was navigating towards that channel with a view to entering it. Accordingly, when Alexandra 1 approached the dredged channel, she was not under a duty to keep out of the way of Ever Smart. Her duty was 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 rule 9 of the Collision Regulations (the narrow channel rule). In any event, Alexandra 1 was not on a sufficiently defined course for the crossing rule to apply. Liability was apportioned at Ever Smart 80 percent and Alexandra 1 20 percent, partially due to Ever Smart's excessive speed, which in the judge's opinion was causative of the majority of the damage.
Ever Smart appealed to the Court of Appeal, submitting that the judge erred in: (1) failing to apply the crossing rules; (2) wrongly imposing a requirement that the give-way vessel be on a sufficiently constant course for the crossing rules to apply; and (3) taking into account the extent of the damage alleged to have been caused by the respective vessels in determining the causative potency of their faults.
The Court of Appeal dismissed the appeal for the following reasons:
- The judge had not erred in concluding that the crossing rules were inapplicable to the situation. Neither of the vessels was on a sufficiently defined course. Alexandra 1 was waiting for the pilot vessel to arrive rather than being on a course while Ever Smart was navigating along a narrow channel. It took two to cross. Both vessels, the give-way vessel included, had to be on sufficiently defined courses for the crossing rules to apply. The need for an appreciation of the situation was not confined to the give-way vessel alone; the stand-on vessel had to be in a position to appreciate her own status and that she might be required to take action in accordance with rule 17(a)(ii) and (b). The mere fact that there was a risk of collision through convergence, was not determinative of whether the crossing rules applied.
- The fact that Alexandra 1 was waiting in the pilot area did not make her a vessel restricted in her ability to maneuver.
- The judge had not erred in considering the role of Ever Smart's excessive speed in contributing causatively not only to the collision itself, but also to the extent of the resulting damage. The judge was not precluded, when apportioning liability, from considering the relative impact of each vessel's faults on the severity of the collision. In the view of the Court of Appeal, liability for damage in a collision case was to be apportioned under section 187 of the Merchant Shipping Act 1995, having regard to the degree of fault of each vessel. Both the culpability and the causative potency of the faults established were relevant to the apportionment of liability. Causative potency had two aspects; the first related to the extent to which the fault contributed to the fact of the collision occurring; the second, to the extent to which the fault contributed to the damage or loss resulting from the collision. Excessive speed was a prime example of a fault likely to contribute to the extent and severity of the damage or loss suffered.
A judge is amply entitled to take into account the propensity of excessive speed to increase the damage suffered when undertaking the exercise of apportionment. Having regard to the fault both in relation to the fact of the collision occurring and the severity of the collision, amounted to the separate counting of two different (and cumulative) aspects of the same fault.
The Court of Appeal made it clear in their judgement that the decision should be confined to its facts, namely that the entrance to and exit from the narrow channel was in the pilot boarding area and that at all material times Alexandra 1 was maneuvering in that area. The court noted that there was a potential for the crossing rules and the narrow channel rule to require the vessel to take different actions at the same time. Vessels approaching the channel and vessels within the channel must acknowledge that there must be some continuity so that rule 9 of the Collision Regulations applied at the entrance to the channel in order to avoid chaos and ambiguity. The crossing rules may be applicable with regard to the navigation of vessels approaching the junction between two narrow channels, and in a situation where a vessel is crossing a narrow channel and another vessel is navigating up or down the channel.
The Court of Appeal referred to section 187 of the MSA 1995 which provides: "where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, to their cargoes or freight, or to any property onboard, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was at fault" and also to a brief note in Civil Procedure, Vol. 2 (2018), at 2D-230: "it is now well established that in assessing degree of fault and apportioning blame, regard must be had both to the blameworthiness or culpability of the conduct and also its causative potency as a factor contributing to the collision and damage".
A broader principle has been established in relation to the role of the excessive speed of Ever Smart in contributing causatively, not only to the collision itself, but also to the extent of the ensuing damage. Going forward, it is clear that the court, when considering whether a particular fault has or has not contributed to the result, will not only be looking at the fault's contribution to the collision itself but also at its contribution to the resulting damage.