Evergreen Marine (UK) Ltd v Nautical Challenge Ltd, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Advocates

Nigel Jacobs QC and James Turner QC (instructed by Ince & Co LLP) for the Appellant
Vasanti Selvaratnam QC and James Shirley (instructed by Clyde & Co LLP) for the Respondent

Judges

LORD JUSTICE LEWISON
LORD JUSTICE LEGGATT
LORD JUSTICE GROSS

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Evergreen Marine (UK) Ltd v. Nautical Challenge Ltd

Smart Summary

Factual and Procedural Background

This appeal concerns a collision on 11 February 2015 between two large vessels: a laden Very Large Crude Carrier (VLCC), herein referred to as Vessel A, inbound to the port of Jebel Ali, and a laden container vessel, herein referred to as Vessel B, outbound from the same port. The collision occurred just outside the dredged channel entrance, within the pilot boarding area. Both vessels were equipped with Voyage Data Recorders, and their navigational tracks were agreed upon. The collision caused significant damage: over US$32 million to Vessel A’s bow and nearly US$4 million to Vessel B’s port bow.

The trial judge, Judge T, found that the crossing rules under the International Regulations for Preventing Collisions at Sea (1972) did not apply because one vessel was navigating in a narrow channel and the other was approaching to enter it, and because Vessel A was not on a sufficiently constant course, being engaged in waiting to embark a pilot. Instead, Vessel B was governed by the narrow channel rule, and Vessel A by the general duty of good seamanship. The judge apportioned liability 80% to Vessel B and 20% to Vessel A.

Permission to appeal was granted on certain grounds raised by Vessel B, challenging the applicability of the crossing rules and aspects of the apportionment of liability. The appeal was heard by the Court of Appeal, which considered three principal issues: the applicability of the crossing rules, the Respondent’s Notice, and causative potency in apportionment.

Legal Issues Presented

Whether the crossing rules (Rules 15-17 of the Collision Regulations) apply where one vessel is navigating in a narrow channel and the other is approaching to enter it.
Whether the Respondent’s Notice raises valid grounds to support the trial judge’s conclusion, including whether Vessel B caused the crossing situation and whether Vessel A was restricted in her ability to manoeuvre.
Whether the trial judge erred in considering the extent of damage caused in assessing causative potency for apportionment of liability.

Arguments of the Parties

Appellant's Arguments (Vessel B)

The trial judge erred in law by failing to apply the crossing rules and wrongly holding they did not apply where one vessel was in a narrow channel and the other was approaching it.
The crossing and narrow channel rules could and should be applied concurrently without conflict.
The judge wrongly imposed a requirement that the give-way vessel be on a sufficiently constant course for the crossing rules to apply.
The judge erred by considering the extent of damage caused in determining causative potency, amounting to double-counting.
On a hypothetical reversed scenario, the judge’s approach would create uncertainty and risk to safe navigation.
The Elder Brethren’s advice was unclear on whether crossing rules applied in the hypothetical scenario and undermined the judge’s apportionment.

Respondent's Arguments (Vessel A)

The trial judge was correct in holding the crossing rules inapplicable due to the risk of conflicting duties under the crossing and narrow channel rules.
The decision is supported by authoritative precedents and principles emphasizing safety and good seamanship.
The pilot boarding area’s special circumstances justified the application of narrow channel and good seamanship rules rather than crossing rules.
The crossing rules require both vessels to be on sufficiently defined courses, which was not the case for Vessel A.
Vessel A was not a vessel restricted in her ability to manoeuvre under the Collision Regulations.
The judge’s approach to causative potency, including consideration of damage extent, was orthodox and supported by authority.
The Elder Brethren’s advice aligns with the judge’s conclusions and does not undermine apportionment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bow Spring v Manzanillo II [2004] EWCA Civ 1007	Admiralty Court’s approach to collision liability appeals	Referenced as the last similar appeal on liability in collision before the present case.
The Canberra Star [1962] 1 Lloyd's Rep 24	Applicability of crossing rules in narrow channel situations	Persuasive authority supporting inapplicability of crossing rules when one vessel is in a narrow channel and the other approaching it.
Kulemesin v HKSAR [2013] 16 HKCFA 195	Relationship between crossing rules and narrow channel rule	Persuasive authority endorsing the view that crossing rules do not apply where a vessel is navigating in a narrow channel and another is approaching it.
The Albano [1907] AC 139	General collision principles	Distinguished as not involving a narrow channel, thus not applicable to the present facts.
The Empire Brent (1948) 81 Ll. L. Rep. 306	Crossing rules and narrow channel navigation	Supports that crossing rules do not apply when vessels navigate up and down a narrow channel.
The Glenfalloch [1979] 1 Lloyd's Rep. 247	Crossing rules and narrow channel navigation	Similar support for inapplicability of crossing rules in narrow channel navigation.
The Leverington (1886) 11 PD 117	Application of crossing rules at junctions of narrow channels	Example where crossing rules may apply near narrow channel junctions.
The Roanoke [1908] P 231	Interpretation of "course and speed" under crossing rules	Clarifies that "course and speed" means the navigation manoeuvre engaged in, not literal compass heading or speed.
The Alcoa Rambler [1949] AC 236	Strict application of crossing rules and knowledge imputation	Supports strict enforcement of crossing rules but with consideration of knowledge of the situation.
SS Orduna v Shipping Controller [1921] 1 AC 250	Requirement of vessels being on courses for crossing rules to apply	Supports that crossing rules begin to apply when vessels are on courses that may cause collision.
The Savina [1976] 2 Lloyd's Rep. 123	Requirement of steady course for crossing rules	Supports that both vessels must be on steady courses for crossing rules to apply.
The Avance [1979] 1 Lloyd's Rep. 143	Application of crossing rules dependent on vessel’s course steadiness	Held crossing rules did not apply where give-way vessel was not on a settled course.
The Miraflores and The Abadesa [1967] AC 826	Principles of apportionment of liability based on fault	Establishes that both culpability and causative potency are relevant in apportionment.
The Margaret (1881) 6 PD 76	Fault contributing to damage vs collision	Illustrates distinction between fault causing collision and fault causing damage.
The Peter Benoit (1915) 13 Asp. MC 203	Requirement of proof for degrees of fault	Fault must be judicially proved and relate to collision causation.
The SS Haugland v The SS Karamea [1922] AC 68	Fault must contribute to accident to be relevant	Only faults contributing to accident are considered in apportionment.
The British Aviator [1965] 1 Lloyd's Rep. 271	Apportionment considers both blameworthiness and causative potency	Supports considering causative potency as factor in fault assessment.
The Nordic Ferry [1991] 2 Lloyd's Rep 591	Speed as an important factor in causative potency	Speed increases damage and thus causative potency despite lower blameworthiness.
The Sanwa [1998] 1 Lloyd's Rep 283	Speed’s impact on damage and collision risk	Speed reduces time to react and increases damage, relevant in causative potency.
The Nordlake [2016] 2 All ER (Comm) 449	Summary of principles on apportionment including causative potency	Endorses distinction between culpability and causative potency, including damage contribution.
The MCC Jakarta [2017] HKCFI 981	Application of apportionment principles in Hong Kong	Confirms broad, qualitative approach to apportionment of liability.
The Dream Star [2017] SGHC 220	Apportionment as broad, commonsensical assessment	Supports qualitative assessment approach to culpability and causative potency.
Forest Pioneer [2007] EWHC 84	Interpretation of "restricted in ability to manoeuvre"	Distinguished; Vessel A not considered restricted in ability to manoeuvre here.

Court's Reasoning and Analysis

The Court began by examining the applicability of the crossing rules (Rules 15-17) in the context where one vessel was navigating within a narrow channel and the other was approaching it to enter. The Court agreed with the trial judge that applying the crossing rules simultaneously with the narrow channel rule (Rule 9) could create conflicting duties, which would be unsafe and contrary to the intent of the Collision Regulations. The Court found persuasive the reasoning in The Canberra Star and Kulemesin, which held that crossing rules do not apply in such circumstances to ensure continuity and safety of navigation.

The Court further accepted that Vessel A was not on a sufficiently constant course to engage the crossing rules, being effectively stationary or waiting to embark a pilot. The principle that both vessels must be on sufficiently defined courses for crossing rules to apply was endorsed, supported by authorities including The Savina and The Avance.

Regarding the Respondent’s Notice, the Court rejected arguments that Vessel B caused the crossing situation or that Vessel A was restricted in her ability to manoeuvre. The Court agreed with the trial judge that Vessel A was not restricted within the meaning of the Collision Regulations, as the pilot boarding had not commenced and Vessel A could have manoeuvred to keep clear.

On causative potency in apportionment, the Court reviewed extensive authority and confirmed that liability is apportioned based on both culpability and causative potency. Causative potency includes two aspects: contribution to the occurrence of the collision and contribution to the extent of damage. The Court accepted that Vessel B’s excessive speed increased the damage caused and was properly considered in apportionment. The Court rejected the argument that this amounted to double-counting, holding that the two aspects of causative potency are distinct and cumulative.

Overall, the Court upheld the trial judge’s approach and conclusions on all issues.

Holding and Implications

The Court DISMISSED the appeal in its entirety, affirming the trial judge’s decision.

The holding confirms that in situations where one vessel is navigating within a narrow channel and another is approaching it to enter, the crossing rules do not apply, to avoid conflicting navigational duties and to promote safety. Both vessels must be on sufficiently defined courses for crossing rules to engage. The Court also affirms that apportionment of liability properly considers both culpability and causative potency, including the contribution of faults to the extent of damage caused. No new precedent was established beyond the careful application and endorsement of existing principles and authorities. The direct effect is to maintain the apportionment of liability at 80% to the outbound vessel and 20% to the inbound vessel in this collision case.