CASE: Nautical Challenge Ltd -v- Evergreen Marine (UK) Limited [2022]

EWHC 206 (Admlty)

Introduction: On 11 February 2015, a collision occurred between
ALEXANDRA 1, a laden VLCC and EVER SMART, a laden container vessel.
The collision occurred just outside the dredged channel by which vessels enter
and exit the port of Jebel Ali in the United Arab Emirates.

Case In Detail: At about 22:00 on 11 February 2015, ALEXANDRA 1, which

was inbound to Jebel Ali, was instructed that a pilot would board at 23:15 and
that she should be berthed at buoys no.1 at that time. The pilot was on board
EVER SMART, which was navigating along the narrow channel, outbound
from Jebel Ali, and proceeding to buoys no.1 Port Control advised
ALEXANDRA 1 that once EVER SMART was cleared only then she could
enter the channel.

At about 23:26, the master of ALEXANDRA 1 overhead a conversation which

he mistakenly thought was between EVER SMART and Port Control. As a
result, he thought that EVER SMART was to turn to port at the end of the
narrow channel. At about 23:38, ALEXANDRA 1 would have turned to
starboard towards the channel but did not do so because of her master’s mistake
in understanding of EVER SMART’s intentions. Instead, she continued to head
across the approaches to the channel very slowly. The master of ALEXANDRA
1 was concerned that EVER SMART was not turning to port as expected and so
put the engines full astern, but this did not avoid a collision.

EVER SMART was slightly to port of mid-channel. Before leaving the bridge,
the pilot advised the master that there was a vessel to port and that he should be
alert and take care. However, EVER SMART never regained the starboard side
of the channel. At about 30 seconds before the collision, Port Control and the
pilot advised EVER SMART to go to hard starboard. Her helm was put
starboard, but it was too late. The speed of EVER SMART at collision was 12.4
knots, whereas the speed of ALEXANDRA 1 was 2.4 knots.

A trial took place in the Admiralty Court in January 2017 and in a judgment
dated 13 March 2017 the court held that the crossing rule did not apply. The
court held that the navigation of ALEXANDRA 1 was governed by the
requirements of good seamanship and the navigation of EVER SMART by the
narrow channel rule. The court apportioned liability for the collision 80/20 in
favour of ALEXANDRA 1.

The first instance decision was appealed, but, on 5 October 2018, the Court of
Appeal dismissed the appeal. Detail of the Court of Appeal decision can be
found here: Evergreen Marine (UK) Limited -v- Nautical Challenge Limited
[2018] EWCA Civ 2173.

On 29 January 2019, the quantum of the respective claims was assessed. The
court apportioned liability 80/20 in favour of ALEXANDRA 1 and held that the
recoverable loss of ALEXANDRA 1 was US$9,308,594.71 and EVER SMART
US$2,531,373.71.
Permission to appeal was granted by the Supreme Court and in a judgment
dated 19 February 2021 the Supreme Court allowed the appeal. The Supreme
Court held that ALEXANDRA 1 was the give-way vessel and her navigation
was governed by the crossing rule and the navigation of EVER SMART was
governed by both the crossing rule and the narrow channel rule. As a result, the
Supreme Court said that it was necessary for the first instance judge to re-
determine all matters of apportionment.
CONCLUSION/COMMENT
This case makes clear that, in circumstances where one vessel is transiting a
narrow channel and another vessel is waiting at the entrance of that channel to
enter it, it is the narrow channel rule and not the crossing rule that applies. The
crossing rule does not automatically apply simply because two vessels are
crossing one another in or near a narrow channel.

This judgment also serves as a reminder that, if owners wish to avoid a

collision, their bridge teams must keep a good aural lookout as well as a good
visual one and should make proper use of all the navigational equipment
available to them.

Owners and their insurers involved in collisions should ensure that – where
possible and if the value of the case permits – contemporaneous signed witness
statements must be obtained from relevant crew, preferably (certainly in cases
where English law applies) by a solicitor for reasons of privilege. Following
collisions the form of any electronic evidence which is to go before the court
should also be agreed with opponents long before trial.