3.1 Distinguishing between an inbound vessel and a waiting vessel:
This part attempts to answer a simple question: do the actual intentions or goals of the vessel approaching the entrance of the narrow channel (“approaching vessel”) matter in determining the applicable rule(s) for the encounter with an outbound vessel? A fortiori, the answer is no.
Both an inbound vessel and a waiting vessel were recognized by the UK supreme court as having the intention to enter the narrow channel. Yet, in the court’s view the keep-to-starboard requirement influences the navigation of the former, but not of the latter. The reason may have to do with the ability of the outbound vessel to infer from the manoeuvres of the approaching vessel her intentions. It is implied that the navigation of a waiting vessel lacks the clarity in manoeuvring of a vessel that is already making the necessary course and/or speed alterations to enter the channel. In the latter case, the outbound vessel can rely on both visual and equipment-assisted observation to surmise the navigation of the approaching vessel. If the manoeuvres indicate that the approaching vessel is going into the narrow channel, then the outbound vessel can deduce that keeping-to-starboard is sufficient to ensure a safe port-to-port passing, since the inbound vessel will be subject to the same rule. To put it simply, the crossing rule can be dis-applied only if the observable manoeuvres of the approaching vessel qualify her as an inbound vessel:
“The second reason for preferring the appellant’s case is that the test for the occasion when, of necessity, the crossing rules should be overridden must be a clear one, clear that is to those navigating both the vessels involved. 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 . On that basis of assessment, the test propounded by the appellant is the clear winner. The crossing rules are overridden only when the approaching vessel is shaping to enter the channel, adjusting her course so as to reach the entrance on the starboard side of it, on her final approach. That can be determined from the vessel leaving the channel by visual (or radar) observation of the approaching vessel’s course and speed.” (Added emphasis).(1) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 141.
In contrast, the manoeuvres of a waiting vessel, or lack thereof, would put the outbound vessel in a position where they cannot make any reasonable inferences about the future movements of the vessel outside the narrow channel. The difference between a waiting vessel and a transiting vessel (see supra, 2.3) basically becomes difficult to discern.
The reasoning of the UK supreme court on this point is interesting when considering the particular facts of the case. The Ever Smart either had or was in a position to have actual knowledge of the Alexandra I’s preparatory actions in view of her entering the narrow channel. The admiralty court pointed this out:
“Ever Smart was or ought to have been aware that Alexandra 1 was proceeding towards the channel intending to embark the pilot and then proceed down the channel. Certainly the pilot was aware of that when on board Ever Smart.”(2) The Alexandra I, [2017] 1 Lloyd’s Rep. 666, para. 74.
However, the UK supreme court did not pursue this line of inquiry. It did not address the question of whether the Ever Smart knew or ought to have known of that intention, even though a reasonable argument could have been made in my opinion in favour of requiring the Ever Smart to have taken into consideration the special situation of the Alexandra I.
In my view, the circumstances left little doubt that the Alexandra I was waiting for a pilot. While the Alexandra I was moving, she was moving so slowly that she barely covered one mile during a period of 21 minutes.(3) The Alexandra I, [2017] 1 Lloyd’s Rep. 666, para. 70.Moreover, the presence of a pilot boarding area near the entrance should have been known to the Ever Smart. If anything, the Alexandra I’s navigation and the locality should have tipped the scale more in favour of classifying her as a waiting vessel and away from a classification as a transiting vessel. Furthermore, the Ever Smart was carrying the pilot who was intended to guide the Alexandra I through the narrow channel. The Ever Smart was thus arguably in a position to inquire about the pilot’s next destination. This same pilot had also warned the Ever Smart about the presence of the Alexandra I, as he was disembarking around 6 minutes before the collision.(4) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 13(vii).It is therefore fair to say that the Ever Smart was in a position to have or acquire actual knowledge of the intentions of the Alexandra I. By knowing that the Alexandra I was waiting for a pilot, the Ever Smart could have surmised that she was not intending on crossing from one side of the entrance to the other. Therefore, if the Ever Smart had kept-to-starboard, the collision might have been avoided. The reason why the Ever Smart did not do that is probably because she was unaware of the Alexandra I’s presence altogether. From the accounts of the facts in the UK supreme court’s decision, it is quite clear that the Ever Smart was not keeping a proper look-out:
“Less than two minutes after the collision the master of Ever Smart said (apparently to the officer of the watch and helmsman) “both of you … have you seen it or not?” He then said “ how come you didn’t see it?””(5) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 13(x).
The statements of the Ever Smart’s master shows that the presence of the Alexandra I went completely unnoticed. Nonetheless, none of these factors were really taken into account in the UK supreme court’s approach to assessing the situation and classifying the navigation of the Alexandra I. In light of this, the UK supreme court’s position may be telling of a desire to set an objective test of general application independent of the special facts of the case; a test which can arguably be reproduced by vessels navigating in or near a narrow channel to determine when the crossing rule may give way to the narrow channel rule, notwithstanding any special circumstances which may give the outbound vessel insight into the actual intentions of the approaching vessel.
It is certainly not irrational to rely on what is being depicted through manoeuvres to assess the navigation of a vessel, since actual intentions may remain hidden and difficult to ascertain. Indeed, unlike the Ever Smart which was in a position to know of the Alexandra I’s actual intentions, not every single outbound vessel would necessarily have or be in a position to acquire that knowledge. However, one can certainly argue that if an outbound vessel is aware of the actual intentions of the vessel outside the narrow channel, as in The Alexandra I case, reliance on the observation of manoeuvres should no longer be necessary to predict movements. This knowledge can, for example, be acquired through VHF communication. It is not uncommon for vessels to contact one another through VHF to exchange information about their destinations and upcoming manoeuvres. In fact, when the court of appeal put to the Elder Brethren (i.e. nautical assessors) the hypothetical scenario of an inbound vessel that is entering a narrow channel which bears on her port bow (i.e. opposite case of the Alexandra I), the nautical assessors had this to say about how the outbound vessel and inbound vessel could approach the situation:
“The prudent mariner in the outbound vessel in such circumstances would:
(…)
consult the onboard pilot and Jebel Ali VTS/port control re[garding] the subject vessel’s identity and intentions
make contact with the other vessel on VHF at an early stage to advise own ship’s constraints in a narrow channel and his intentions when dropping his pilot.
(…)
The prudent mariner in an incoming vessel approaching from the east would:
acquire information from Jebel Ali VTS/ port control regarding own pilot boarding time and position, ensuring that when manoeuvring to pick up his pilot he stays clear of the channel mouth and lines up to enter on his starboard side of the channel
acquire the outbound vessel as an ARPA target at an early stage and keep a close watch on the vessel’s bearing to determine the risk of collision
identify and make early contact with the outbound vessel on VHF (identify via AIS or Jebel Ali port) in order to ensure that collision risk is avoided and agree to keep clear of the vessel navigating under Pilotage in a narrow channel.”(6) The Alexandra I, [2019] 1 Lloyd’s Rep. 119, para 80.
Seeking information about the intentions of the vessel outside the narrow channel and the use of VHF are in their opinion part and parcel of what a prudent mariner on board the outbound vessel would do to assess the situation. It is therefore quite curious that the UK supreme court focused solely on the observable manoeuvres of the approaching vessel. But I propose two distinct reasons for this.
One reason could be the general reluctance of the English courts to condone the use of VHF as a primary tool for collision avoidance. A number of decisions warn of the danger of this practice. The risk of miscommunication being for instance one of them,(7) The Maloja II [1993] 1 Lloyd’s Rep. 48 at page 52 col. 2.or indeed the temptation to use VHF to agree on manoeuvres which violate the COLREGS.(8) The Nordlake and The Seaeagle [2016] 1 Lloyd’s Rep 656 at para 76; The Aleksandr Marinesko v Quint Star [1998] 1 Lloyd’s Rep. 265 at page 278.In both cases, VHF may lead the vessels involved in the encounter to take contradictory and self-cancelling actions. The position of the UK supreme court could be seen as a logical continuation of this adverse attitude towards the use of VFH. It is also important to note that the advice of the nautical assessors does not involve contacting the approaching vessel through VHF to inquire about her intentions. Instead, they recommend using VHF for informing the target vessel of the constraints that are imposed on your own vessel. VHF would in that case be used to provide the other vessel with a more thorough picture of the circumstances that affect one’s own navigation, and not to communicate the actions that one is intending on taking.
The second reason is directly tied in with the degree of trustworthiness that can be placed on any information obtained regarding the actual intentions of the approaching vessel. Apart from the ever present risk of miscommunication, any information obtained about the intentions of a vessel is unlikely to be binding on that vessel, even if communicated directly by her. A vessel may say one thing and end up doing something completely different. The discrepancy between words and actions may not necessarily be due to a misrepresentation, although that is also possible. An inbound vessel might communicate to an outbound vessel that she is intending on entering the narrow channel. However, a previously undetected obstruction or danger close to the entrance (e.g. a kayaker which could not have been observed from a distance) might require the inbound vessel to change her immediate goals. There might not be enough time to communicate this new information, or the distances might be so close that the outbound vessel might not be able to react to the sudden change. The inbound vessel might also simply omit some information, due to wrongly assuming that it is self-evident. For instance, an inbound vessel might neglect to communicate that she is going to stop at a pilot pick-up station before entering, after she presumes that the outbound vessel would be able to deduce that fact from their knowledge of the local regulations. These two example should illustrate that even if a vessel becomes aware of the actual intentions of a target vessel, this does not necessarily guarantee that the navigation of the target vessel is going to abide by those intentions. There can always be a discrepancy between the actual intentions of a vessel and their discernible navigation, a point we will explore again later (infra, chapter 4).
So, we could say that the Ever Smart being in a position to be aware of the actual intentions of the Alexandra I was immaterial, because these intentions were not discernible from the manoeuvres of the latter. The UK supreme court concluded that a drastic measure, such as disapplying an otherwise applicable rule, cannot be justified when the discernible navigation of the vessel outside the narrow channel leaves doubt as to whether or not she intends on entering the narrow channel:
“Picking up a pilot before entering a river or a harbour entrance is clearly not a sufficient act of preparation to displace the crossing rules: see The Ada; The Sappho and The Albano. Merely being in a pilot boarding area cannot of itself be decisive, since vessels may be proceeding in that area for other reasons, eg because they are leaving the narrow channel, or merely passing its entrance en route to a completely different destination, as was the tug Zakheer Bravo in the present case.” (9) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 141.
We can draw two conclusions from the above: First, it is clear from the UK supreme court’s decision that an outbound vessel has to rely on observation of the manoeuvres of the approaching vessel in order to deduce whether it is an encounter with a transiting, a waiting or an inbound vessel. Only in the last case might the keep-to-starboard requirement be sufficient to resolve the encounter between the two vessels as they can pass each other port-to-port while the inbound vessel is entering, and the outbound vessel is leaving.(10) It must be stressed that the keep-to-starboard requirement performs well as a solution for the encounter as long as the inbound vessel is bearing on the port side of the outbound vessel. In the opposite scenario, the crossing ruleThe crossing rule in this scenario might then not be necessary. In the Alexandra I’s case, however, her navigation as she was drifting with little control over her heading and course, did not clearly show that she was entering the narrow channel. Thus, there was no reason to disapply the crossing rule.
Secondly, there is an implication in my opinion that the approaching vessel needs to keep in mind that major reliance is going to be placed on her observable manoeuvres by the outbound vessel. Therefore, the approaching vessel should strive to ensure that her manoeuvres clearly communicate her intentions. And if there is discrepancy between the two, she should be aware that preference would be given to what is inferable from her discernible manoeuvres, even though the outbound vessel might know of her, i.e. the approaching vessel’s, actual intentions.