Limitation under the Hague-Visby Rules

Article IV r.5(a) of the Hague-Visby Rules provides as follows:

“Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding the equivalent of 667.67 units of account per package or 2 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher.”

The issue

The issue was whether the words “goods lost or damaged” refer only to physically lost or damaged goods or whether this also could refer to cargo subject to economic damage.

Previous judgment on the issue

In a previous case – The LIMNOS² – not more than 250 MT of cargo was physically damaged but the entire cargo was distressed. It was held that the words “goods lost or damaged” refers to two categories of goods, namely: (1) goods that are lost in the sense of being missing or destroyed and (2) goods that are damaged in the sense of not being lost, but surviving in damaged form. This did not refer to economic damage. Limitation under Article IV r.5(a) of the Hague-Visby Rules was thus calculated only by reference to the small quantity of damaged cargo despite the fact that the value of the entire cargo was affected.
In the course of that case reference was made to the anomaly that if there was no cargo at all that was physically lost or damaged then the limitation provisions did not apply and the carrier’s exposure was in those circumstances unlimited.

Facts in the THORCO LINEAGE

The claimant was at all material times the owner of a bulk cargo of zinc calcine with a gross weight of 10,287.07 WMT which was loaded on board the vessel THORCO LINEAGE for carriage from Baltimore, USA to Hobart, Australia. On 21 June 2018, whilst on passage across the Pacific Ocean, the vessel lost power as a result of an engine failure. On 23 June 2018 she grounded on Raroia Atoll in French Polynesia. As a result of the grounding she suffered extensive damage with ballast tanks being punctured, the rudder lost and the propeller damaged beyond repair.

The vessel was the subject of salvage operations and eventually towed to South Korea for repairs. The cargo was discharged and some forwarded to destination.

It was understood that of the total cargo only 764.07 WMT were lost or physically damaged with the remaining 9,523 WMT undamaged.

The costs arising out of the grounding included (a) salvage and (b) cost of onward shipment of sound cargo. Such cost did not relate merely to the cargo that was lost or damaged.

Was limitation to be calculated only by reference to the 764 WMT physically lost or damage or the entire cargo?

Held

The THORCO LINEAGE did not follow the earlier decision in the Limnos. It was held that the meaning of “lost or damaged goods” in Article IV r.5(a) of the Hague Visby Rules could include goods which have been economically damaged.

In the judgment it was stated:

“The merchant will expect to have his goods delivered to him at the discharge port pursuant to the contract of carriage contained in or evidenced by the bill of lading in the same good order and condition as they were in when shipped on board. If they are not so delivered they will be regarded as damaged. There is, I think, no dispute as to that. But… casualties can occur at sea which imperil both ship and cargo as a result of which the goods can only be delivered at the discharge port in sound condition as a result of additional and unexpected expense being incurred by the merchant. This case is an example of two … expenses, salvage payable pursuant to LOF and the cost of on-shipping goods from a place of safety to the port of discharge. In such cases the goods, though in sound condition, will have for the merchant a diminished value at the port of discharge to the extent of the additional expense which he has incurred. In such cases it can fairly be said, and I have no doubt would be said by the merchant, that the goods have suffered economic damage as a result of the casualty at sea. The cargo is as much the victim of the casualty as it is where physical damage is caused.… I therefore think that when one has regard to the context of the carriage of goods by sea there is a cogent argument that the ordinary meaning of “lost or damaged goods” in Article IV r.5(a) of the Hague Visby Rules can include goods which have been economically damaged.”

It was observed in passing that Article IV r.5(a) could not have been intended to prevent there being a limitation by requiring the presence of physical damage to the goods.

The court also upheld an alternative argument that the cargo in this case was physically damaged in that it was subject to the salvor’s maritime lien and so the claimant’s proprietary or possessory title to the cargo was damaged.

In conclusion it was held the limit of the defendant’s liability in respect of the claimant’s liability to pay salvage and the on-shipment costs was based upon 2 SDRs per kilogramme of the entire cargo.

¹ Trafigura PTE Ltd v TKK Shipping Ltd (“The Thorco Lineage”) [2023] EWHC 26 (Comm)

² Serena Navigation v Dera Commercial Establishment (“The Limnos”)[2008] 2 Lloyd’s Reports 166

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So what is the back story?

Good faith – no general principle applicable to contracts

Firstly it is, and continues to be, well understood that in contrast to some other legal systems there is no general obligation of good faith under the English law of contract. In the words of a recent judgment of the UK Supreme Court

But, in contrast to many civil law jurisdictions and some common law jurisdictions, English law has never recognised a general principle of good faith in contracting. Instead, English law has relied on piecemeal solutions in response to demonstrated problems of unfairness²:

Good faith as an implied contract term

When will good faith obligations arise in connection with a contract? Aside from cases where good faith is an express term of a contract the question is whether such an obligation is to be implied as a term of a contract. 

There are two types of contractual implied term. The first is a term to be implied into a particular contract in the light of the express terms, commercial common sense, and the factual circumstances known or reasonably available to the parties at the time the contract was made. The second type arises where the law, sometimes by statute sometimes through common law, effectively imposes terms into certain types of relationships unless such a term is expressly excluded³. 

In the latter case a duty of good faith is implied by law in certain categories of contract such as contracts of employment, contracts of insurance or partnership agreements. However as a consequence of the decision in Yam Seng Pte v International Trade Corp [2013] EWHC 111(QB) it s now possible to claim that a good faith obligation may be implied in so called “relational” contracts. Such relational contracts:

“…may require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties’ understanding and necessary to give business efficacy to the arrangements.”⁴

This has led to the avalanche of cases referred to earlier where claimants have attempted to show their contract was “relational” in order to establish an implied good faith obligation.

What are the characteristic of a “relational contract”?

The following, non exhaustive, characteristics of a relational contract⁵ were approved in the Court of Appeal judgment in Candey “merely as a sense check rather than a series of statutory requirements“:

1. There must be no specific express terms in the contract that prevents a duty of good faith being implied into the contract.
2. The contract will be a long-term one, with the mutual intention of the parties being that there will be a long-term relationship.
3. The parties must intend that their respective roles be performed with integrity, and with fidelity to their bargain.
4. The parties will be committed to collaborating with one another in the performance of the contract.
5. The spirits and objectives of their venture may not be capable of being expressed exhaustively in a written contract.
6. They will each repose trust and confidence in one another, but of a different kind to that involved in fiduciary relationships.
7. The contract in question will involve a high degree of communication, co-operation and predictable performance based on mutual trust and confidence, and expectations of loyalty.
8. There may be a degree of significant investment by one party (or both) in the venture. This significant investment may be, in some cases, more accurately described as substantial financial commitment.

The Court of Appeal judgment in Candey v Bosheh

Candey were a firm of solicitors. They agreed to act for Bosheh in litigation on the basis of a conditional fee agreement (“CFA”). Under the terms of that agreement Bosheh would pay Candey a fee if there was a recovery but nothing if they lost the case. In the event Bosheh settled their dispute on a “drop hands” basis and there was thus no recovery and no fees payable to Candey.

Candey brought proceedings against their now former client Bosheh on the basis that the CFA was a relational contract and that client was in breach of a duty of good faith, by settling the underlying litigation on terms which meant that Candey had no express entitlement to their fees.

The judge at first instance rejected the argument that the client Bosheh owed their lawyers a duty of good faith observing that there was no authority to support the argument that a client owes his solicitor a duty of good faith and the solicitor’s fiduciary duty to the client would displace such a finding.

The Court of Appeal considered the matter first by reference to the usual test for implied terms, and then by asking whether this was a relational contract.

They did not accept that the normal rules for implication of terms into contract would here imply a good faith obligation into the CFA. Such an obligation was not so obvious that it went with saying and it was not necessary to make the CFA contract work.

Separately the court did not accept that the CFA was a “relational” contract having regard to the characteristics listed above and rejected the argument that a good faith obligation would thereby be implied by law. They concluded:

In short, this was an ordinary solicitors’ retainer which happened to be on a CFA basis. There are thousands of those in operation at any one time in the UK. Nobody has ever suggested before that they are relational contracts, or that in every CFA, the client owed the solicitor a duty of good faith.

Conclusions

The Court of Appeal finding on this case is not in itself surprising. That a client might owe a duty of good faith to his lawyer was described as a startling concept. However some of the comments are of interest because they seem to suggest that we have reached a high water mark where good faith allegations are concerned. Whilst the concept of good faith being implied into relational contracts remains intact it looks as if it may in the future be more difficult to successfully argue for its application. In referring to the prior avalanche of claims based to alleged relational contracts the court added cryptically, “Only a relatively few have succeeded“, which may be an indication as to how they viewed the situation.

The pointers suggest that the future trend may be away from allegations that a contract is “relational “ and back towards consideration of whether under the normal rules a good faith term is to be implied in any given contract. In the words of the court:

“Putting (it) another way, it might be said that the elusive concept of good faith should not be used to avoid orthodox and clear principles of English contract law.”

Note the reference to “the elusive concept of good faith” which appears to accept that it may arise but leaves open just what this might amount to in any give context.

A further point – Fiduciary relationships distinguished from good faith obligations

The court confirmed that the CFA was a fiduciary relationship, with Candey owing a fiduciary duty, or an obligation of “loyal subordination” of its own interests to those of the Boshehs and that such a duty was different to the trust and confidence of a good faith obligation in a relational contract. There is nothing new here as this merely reaffirms the existing law. However it is worth drawing attention to this fundamental difference.

[1] Candey ltd v Bosheh [2022] EWCA civ 1103

[2] Affirming the earlier decision in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 at 439 

[3] Europa Plus SCA SIF & Ors v Anthracite Investments (Ireland) Plc [2016] EWHC 437 (Comm) at paragraph 33

[4] Yam Seng Pte v International Trade Corp [2013] EWHC 111(QB)

[5] Bates v Post Office [2019] EWHC 606

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This case concerned loss resulting from a grounding caused by a defective passage plan. The issues before the court were

(i) Seaworthiness. Did a defective passage plan render the vessel unseaworthy for the purposes of Article III Rule 1 of the Hague Rules?

(ii) Carrier’s due diligence. Did the failure of the master and his officers to exercise appropriate skill in preparing the passage plan constitute a want of due diligence on the part of the carrier to make the vessel seaworthy?

Passage planning obligation

In 1999 the International Maritime Organisation (“IMO”) adopted  Guidelines for Voyage Planning. The guidelines identify four components of passage planning: appraisal, planning, execution and monitoring. The appraisal stage requires consideration of all available information including up to date charts and the ascertaining of all areas of danger and of those areas where it will be possible to navigate safely. The planning stage requires the making of a berth to berth passage plan on the basis of the appraisal and the marking of the intended route or track and identification of any areas of danger on the chart.

The court recognised that prudent passage planning would require due regard to these guidelines.

The factual background

On 18 May 2011 the vessel CGM LIBRA ran aground on a shoal whilst leaving the port of Xiamen, China. According to the passage plan the vessel was to have proceeded along the buoyed fairway. However the master took the decision to pass outside buoy 14.1 and leave the fairway resulting in the grounding.

The vessel had on board the latest chart and notices to mariners. However the latest applicable notice to mariners included the following warning:

“Numerous depths less than the charted exist within, and in the approaches to Xiamen Gang.”

This warning was not noted on the chart or included in the written passage plan. It was later found that had this warning been on the chart the master would have been unlikely to have navigated outside the fairway. The passage plan was thus defective and causative of the grounding.

The claim

The grounding led to the vessel being the subject of salvage. This in turn led to General Average being declared with the vessel owners seeking a contribution from cargo interests amounting to some US$13 million. Certain cargo interests resisted on the grounds that a ship owner is not entitled to recover general average contributions from the owners of the cargo where the loss or expenditure was caused by its “actionable fault” which includes any causative breach of the terms of the relevant contract of carriage. In the present case it was argued that the vessel owners were in breach by failing to exercise due diligence to make the vessel seaworthy by virtue of the defective passage plan.

Hague Rules

The contract of carriage was subject to the Hague Rules. Article III sets out the responsibilities and liabilities of the carrier:

“1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:
(a) Make the ship seaworthy.
(b) Properly man, equip and supply the ship…

Subject to the provisions of article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.”

Article IV sets out the rights and immunities of the carrier. In relation to the obligation of seaworthiness under article III rule 1, the relevant provision is article IV rule 1 which provides as follows:

“1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied,  … in accordance with the provisions of paragraph 1 of article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.”

In relation to the obligation properly and carefully to care for the goods under article III rule 2, the relevant provision is article IV rule 2 which provides as follows:

“2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.”

Held

The court held as follows:

ISSUE 1 – DID THE DEFECTIVE PASSAGE PLAN RENDER THE VESSEL UNSEAWORTHY FOR THE PURPOSES OF ARTICLE III RULE 1 OF THE HAGUE RULES?

The court held that the defective passage plan did render the vessel unseaworthy for the purposes of Hague Rules Article III Rule 1.

Negligent navigation. The court accepted that the preparation of a passage plan was a matter of navigation and also accepted that the failure to note or mark the uncharted depths warning in the passage plan and on the working chart could be regarded as an “act, neglect, or default” in “the navigation … of the ship” within the article IV rule 2(a) exception.

Seaworthiness an overriding obligation. However it held that Article III, rule 1, is an overriding obligation[2] and thus rejected owner’s attempt to rely on the negligent navigation exception. Where loss or damage was caused by a breach of the carrier’s obligation to exercise due diligence to make the vessel seaworthy under article III rule 1, the article IV rule 2 exceptions could not be relied upon, including where the excepted matter was the cause of the unseaworthiness.

Attribute of the vessel. The concept of unseaworthiness is not subject to an attribute threshold requiring there to be an attribute of the vessel which threatens the safety of the vessel or her cargo. In the course of the judgment the court referred to earlier authorities confirming that seaworthiness is not limited to physical defects in the vessel and her equipment. Seaworthiness extends, for example,  to documentary matters such as having on board adequate and up-to-date charts[3] and  the mental abilities of the crew and whether they have a “disabling want of skill” or a “disabling want of knowledge”[4].

The prudent owner test. In  considering whether a defect rendered a vessel unseaworthy the court also referred with approval to the long established “prudent owner” test stating:

“Save for exceptional cases at the boundaries of seaworthiness, the well-established prudent owner test, namely whether a prudent owner would have required the relevant defect to be made good before sending the vessel to sea had he known of it, is an appropriate test of seaworthiness, well suited to adapt to differing and changing standards”.

Remediable defects. The fact that a defect is remediable may mean that a vessel is not unseaworthy. This is likely to depend on whether it would reasonably be expected to be put right any defect before any danger to vessel or cargo arose. The court rejected any distinction between providing the vessel with the materials and equipment required to make a vessel seaworthy and the use made of those materials by the crew. It stated that if it is necessary to make use of those materials in order to render the vessel seaworthy for the voyage then the carrier will be responsible for any negligent failure so to do.

Passage plan. The carrier’s obligation requires the carrier to ensure that a proper passage plan is prepared; not merely to provide a proper system to enable the crew to carry out the required planning exercise. The court stated:

“Given the “essential importance” of passage planning for the “safety … of navigation”, applying the prudent owner test, a vessel is likely to be unseaworthy if she begins her voyage without a passage plan or if she does so with a defective passage plan which endangers the safety of the vessel”.

ISSUE 2 – DID THE FAILURE OF THE MASTER AND SECOND OFFICER TO EXERCISE REASONABLE SKILL AND CARE WHEN PREPARING THE PASSAGE PLAN CONSITUTE WANT OF DUE DILIGENCE ON THE PART OF THE CARRIER FOR THE PURPOSES OF ARTICLE III RULE 2 OF THE HAGUE RULES?

The court  confirmed that the carrier has a non delegable obligation to exercise due diligence to make the vessel seaworthy.

The court rejected the argument that the crew failure to exercise due skill in navigation matters (here to prepare the passage plan) was not a breach of the carrier’s due diligence obligations on the basis that it was outside the orbit of the carrier.

It was confirmed that the carrier is responsible for any failure to exercise due diligence by those to whom he has entrusted the task of making the vessel seaworthy. It is the carrier’s contractual responsibility to ensure that due diligence is exercised in making the vessel seaworthy and he cannot contract out of that responsibility by delegation[5]. The court stated:

“The obligation on the carrier to exercise due diligence to make the vessel seaworthy requires that due diligence be exercised in the work of making the vessel seaworthy, regardless of who is engaged to carry out that task”

and

“The carrier is liable for a failure to exercise due diligence by the master and deck officers of his vessel in the preparation of a passage plan for the vessel’s voyage. The fact that navigation is the responsibility of the master and involves the exercise by the master and deck officers of their specialist skill and judgment makes no difference”.

“The carrier’s seaworthiness obligation in relation to passage planning is not limited to providing a proper system for such planning”.

On the subject of passage planning the court suggested that errors made by the master or officers in the later execution or monitoring stages of passage planning (i.e. navigation during the voyage) might fall within the nautical fault exception under Article IV whereas if such errors were attributable to the carrier’s failure to have proper systems in place that might be considered a failure on the part of the carrier to exercise due diligence to make the vessel seaworthy and thus not within the Article IV exclusion.

Conclusion

This is an important decision with comment that may be relevant for future cases involving consideration of the Hague Rules .

[1] [2021] UKSC 51

[2] Following Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd [1959] AC 589

[3] Grand Champion Tankers Ltd v Norpipe A/S (The Marion) [1984] AC 563

[4] Papera Traders Co Ltd v Hyundai Merchant Marine Co Ltd (The Eurasian Dream) [2002] 1 Lloyd’s Rep 719

[5] Following the House of Lords decision in Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd (The Muncaster Castle) [1961] AC 807

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Legal characterisation

The background to the judgement is the legal characterisation of demurrage. The court confirmed earlier authority[2] that conceptually demurrage is, in the words of a leading textbook (Scrutton on Charterparties, 24th edition (2020),

 “a sum agreed by the charterer to be paid as liquidated damages for delay beyond a stipulated or reasonable time for loading or unloading, generally referred to as the laydays or laytime”

Demurrage is thus agreed damages. It is not money payable by a charterer as the consideration for the exercise by him of a right to detain a chartered ship beyond the stipulated lay days and thus to be characterised as a debt rather than damages.

Against this background the issue arising on appeal was whether demurrage is liquidated damages covering all the consequences of the charterer’s failure to load or discharge within the laytime or only some of them and thus whether further damages could be claimed in addition to demurrage.

The facts

The case arose out of a contract of affreightment between K Line as owner and Priminds Shipping as charterer. The dry bulk carrier “ETERNAL BLISS” was nominated for one voyage under this contract for the carriage of 70,133 MT soyabeans from Tubarao in Brazil to Longkou in China. Due to congestion at the discharge port and the lack of storage ashore the vessel was kept waiting for 31days before she could discharge thereby giving rise to demurrage. Following discharge the soyabeans were found to be caked and mouldy apparently as a result of the delay. This led to a claim by the receivers that the owners settled for US$1.1 million.  The owners sought to recover this sum from the charterers on the grounds that this loss was a consequence of the failure to discharge within the agreed laytime which was a breach of charter party.

The issue was whether the owners could recover damages (here US$1.1 million) in addition to the demurrage. It was not alleged that this further claim was caused by any breach of charter separate from the charterer’s obligation to discharge within the contractual laytime that gave rise to demurrage.

Held

The court held that:

” …, in the absence of any contrary indication in a particular charterparty, demurrage liquidates the whole of the damages arising from a charterer’s breach of charter in failing to complete cargo operations within the laytime and not merely some of them. Accordingly, if a shipowner seeks to recover damages in addition to demurrage arising from delay, it must prove a breach of a separate obligation.”

Accordingly the charterer was not liable to pay damages in addition to demurrage for its breach of contract in not completing discharge within the permitted laytime.

Comment

This decision has clarified the law on this subject unless, of course, this case is the subject of further appeal to the UK Supreme Court. Demurrage should be considered as an exclusive remedy for failure to load or discharge within the agreed laytime and proof of breach of a separate obligation will be necessary to sustain any additional claim for damages.

[1] [2021] EWCA Civ 1712

[2] AS Reidar v Arcos Ltd (1926) 25 Ll LR 32, [1927] 1 KB 352

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The Collision Regulations

The case concerned Rule 9 (Narrow Channels) and Rule 15 (Crossing Situation).

Rule 9(a) states:

A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.

Rule 15 states:

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.

The facts of the case

The case concerned a collision between the container ship EVER SMART and the VLCC (Very Large Crude Carrier) ALEXANDRA 1. The collision took place in the pilot boarding area just outside the outer end of the entrance channel into Jebel Ali. The EVER SMART was outward board proceeding down and out of the buoyed channel. The ALEXANDRA 1 was inward bound and was almost stationery in the pilot waiting area waiting to embark a pilot. Whilst doing so she made various adjustments to her heading and speed.

Whilst waiting the ALEXANDRA 1 was presenting her starboard side to the EVER SMART as she came down the buoyed channel and was thus prospectively a crossing vessel under Rule 15. The master of the ALEXANDRA 1 had overheard a radio conversation between Jebel Ali Port Control and a tug in which Port Control advised the tug to pass at least one mile astern of the tanker (i.e. ALEXANDRA 1). He mistakenly assumed that this was a direction to the EVER SMART and that once she had existed the buoyed channel she would come to port and pass astern of him. In the event the EVER SMART did not alter to port and her port bow of the EVER SMART collided with the starboard bow of the ALEXANDRA 1.

Issues

There were two issues before the court:

(i) In determining whether the crossing rules are applicable, is there a requirement for the putative give-way vessel (here the ALEXANDRA 1) to be on a steady course before the crossing rules can be engaged?

(ii) Are the crossing rules inapplicable or should they be disapplied where an outbound vessel is navigating within a narrow channel and has a vessel on her port (or starboard) bow on a crossing course approaching the narrow channel with the intention of and in preparation for entering it?

Findings of the court

The Importance of Understanding Collision Regulations in Maritime Law

The court made it clear that fundamental to the construction of the Rules is the need to apply them by reference to what is reasonably apparent to those navigating each vessel about the conduct of the other.

(i) Crossing situation.  As background the court observed[3] that the interpretation of the crossing rules should have due regard to the well-known judicial statement that “wherever possible” the crossing rules “ought to be applied and strictly enforced because they tend to secure safe navigation and  that it had “been found advantageous” for a “wider scope to be given to the crossing rule” in cases of doubt on a strict application of the rules[4].

How Collision Regulations Can Help Ensure Safe Navigation

The court held that for the crossing rule to apply there is no additional requirement that either vessel must be on a steady course in addition to the express requirements for engagement (two power-driven vessels, crossing, so as to involve a risk of collision) under Rule 15.

As regards the give way vessel the court stated:

 “…  if two vessels, both moving over the ground, are crossing so as to involve risk of collision, the engagement of the crossing rules is not dependent upon the give-way vessel being on a steady course. If it is reasonably apparent to those navigating the two vessels that they are approaching each other on a steady bearing (over time) which is other than head-on, then they are indeed both crossing, and crossing so as to involve a risk of collision, even if the give-way vessel is on an erratic course. In such a case, unless the overtaking rule applies, the crossing rules will apply.“[5]

As regards the stand on vessel the court held the requirement for the stand-on vessel to keep her course and speed is not a condition for the engagement of the crossing rules, but a qualified obligation imposed on her once the crossing rules are engaged. It stated:

“… we also consider that the stand-on vessel need not be on a steady course …, even though, once the crossing rules are engaged, she must then keep her course and speed. It does not follow that she should already have been on a steady course, or speed, before the crossing rules could become engaged.“

In short the test for the engagement of the crossing rule was whether the vessels were approaching each other on a steady bearing and there was no additional requirement that the vessels be maintaining steady courses.

(ii) Interplay between Rule 9 (Narrow Channel) and Rule 15 (Crossing situation)

A further question about the application of collision regulations was the interplay between the rules covering narrow channels and crossing situations where vessels meet at the end of a narrow channel. Where one vessel is proceeding along a narrow channel towards its exit and another vessel is approaching the entry of the channel with a view to proceeding along it which rule was to apply?

The court held that the crossing rule should apply until such time as the approaching vessel was actually shaping a course to enter the narrow channel. Intention to enter the narrow channel was not itself enough. The court stated:

“…where an outbound vessel in a narrow channel is crossing with an approaching vessel so as to involve a risk of collision, the crossing rules are not overridden by the narrow channel rules merely because the approaching vessel is intending and preparing to enter the narrow channel. The crossing rules are only overridden if and when the approaching vessel is shaping to enter, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.[6]“

Held

The court held that the crossing rules (rather than the rules for narrow channels) applied to the ALEXNDRA 1 and EVER SMART. Under the crossing rules the ALEXANDRA 1 was the give-way vessel and EVER SMART was the stand-on vessel. ALEXANDRA 1 should therefore have kept well clear of EVER SMART.

Further comments

In addition to providing conclusions on the two issues referred to above the judgment also includes useful commentary on words used in connection with the Collision Regulations such as “heading”[7], “course”[8], “leeway”[9], “bearing”[10], “approaching”[11] and “crossing”[12].

The court also considered the words “keep her course and speed” in Rule 17 (Action by Stand-on Vessel). It affirmed an earlier judicial statement that this, “…means the course you were going to take for the object you had in view – not the course and speed you had at any particular moment”[13].  However for such purposes “object you had in view” must be reasonably apparent to the give-way vessel.

This judgment may provide useful assistance in future consideration of the Collision Regulations.

[1] The Savina [1976] 2 Lloyd’s Rep 123

[2] Evergreen Marine (UK) Limited v Nautical Challenge Ltd [2021] UKSC 6

[3] para 43

[4] Lord Wright in The Alcoa Rambler [1949] AC 236 (PC) at p 250

[5] para 111

[6] para 145

[7] para 48

[8] para 49

[9] para 50

[10] para 52

[11] para 55

[12] para 57

[13] The Taunton (1928) 31 Ll L Rep 119

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