1 Introduction
Collision avoidance between vessels at sea is governed by the Convention on the International Regulations for Preventing Collisions at Sea of 1972, in force since July 1977 and better known as the COLREGS. Ratified by more than 160 member states,(1) Information on ratification collected from the IMO’s reports on the status of conventions which can be consulted here: https://www.imo.org/en/About/Conventions/ Pages/StatusOfConventions.aspx; last visited 24 April 2022.and representing over 99% of the world’s tonnage,(2) Craig H. Allen Sr. and Craig H. Allen Jr., Farewell’s Rules of the Nautical Road, 9th edition, 2020, p. 10.the COLREGS are almost universally applicable. They comprise a number of rules, some of which deal with very specific situations and apply under specific conditions. For instance, vessels following the course of a narrow channel are required by rule 9(a) to “keep as near to the outer limit of the channel or fairway which lies on [their] starboard side as is safe and practicable”. When two power-driven vessels are within sight of each other, the rules of Part B – Section II (rules 11-18) apply, and the vessels must make an assessment of the situation in order to determine the nature of the encounter between them. If the vessels are approaching one another on reciprocal or quasi-reciprocal courses, the situation is described as a head-on encounter and might call for the application of rule 14. Overtaking encounters involve scenarios where one vessel is approaching another from the rear, or as described by rule 13 from an angle that is wider than 22.5 degrees abaft the beam. Rule 15 is reserved for encounters which fall into neither of the first two categories. The vessels are then said to be crossing.
Each of these rules will guide the behaviour of vessels, through a series of obligations, with the purpose being to prevent collisions. However, for the rules to achieve their potential, they must be applied appropriately by all vessels involved. After all, the duties under each of these rules are different, and the difference can be stark in some cases. It is undeniably dangerous for vessels to either apply the wrong rules, or apply the right rules at the wrong time. Vessels must therefore be mindful of the prevailing circumstances in their assessments and decision-making. This often requires not only being cognizant of the immediate environment, but also understanding what other vessels are doing, in order to determine in turn what your own vessel is required to do. In the words of the UK supreme court, “the rules need to be applied by reference to what reasonably appears to those navigating one vessel to be being done on the other vessel”.(3) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 104.However, predicting the navigation of other vessels is not straightforward. Circumstances can make it challenging, and two vessels may reach two different conclusions regarding the applicable rules as their respective assessments of the situation can themselves be different. Encounters between vessels leaving a narrow channel (“outbound vessels”) and vessels approaching the entrance of the same channel (“approaching vessels”) offer such a challenge.
Not all vessels approaching a narrow channel are intending to enter it. Vessels may be heading towards a destination which takes them across and in front of the entrance of a narrow channel but does not require them to enter it. A vessel may have the intention of entering a narrow channel, but not immediately upon reaching the entrance. A vessel entering a narrow channel and a vessel simply passing by will not behave in the same way. Outbound vessels need to distinguish between the former and the latter in order to know how to act appropriately to avoid a collision.
This problem is equally not unknown for encounters which take place within narrow channels. Even there, a vessel might not be intending to follow the course of the narrow channel. In certain circumstances, a vessel might be intending to cross from one side of the channel to the other. Different reasons might justify such actions. The vessel could be proceeding towards a wharf, or the destination might be a pier or a port which lies on the other side. Near areas where a narrow channel curves, vessels might also appear to be crossing. The vessels could actually be crossing, or they might instead just be rounding the bend while following the course of the channel. Determining which situation is which relies on making predictions of the future movements of each vessel, based on contemporaneous factors. But until a certain point is reached, it might be difficult for a vessel to make that determination and the nature of the encounter may remain uncertain. The expression ‘equivocal encounter’ is thus used in this article to describe those situations where the prevailing circumstances may point towards two or more plausible courses which the navigation of a specific vessel can take. Equivocal encounters become particularly dangerous when the determining point, i.e. when the navigation of a vessel becomes clear, might come relatively late and only at a short distance away. In some areas, this risk is much more prominent, with narrow channels representing one of them.
In a recent collision case,(4) The Alexandra I, [2021] 1 Lloyd’s Rep 299.the UK supreme court was confronted with a collision incident that involved the type of uncertainty discussed above. An outbound vessel, the Ever Smart, was leaving a narrow channel at the same time as another vessel, the Alexandra I, was situated outside, but near to, the entrance. The Alexandra I was in the pilot boarding area waiting to get a pilot on board. During the 27 minutes preceding the collision, the Alexandra I was bearing on the port bow of the Ever Smart and was slowly moving, or, as described by the courts, drifting, on a general course that seemed to be crossing the course of the Ever Smart. From the point of view of the Ever Smart, the Alexandra I would thus have been seen on the port bow slowly moving in a direction which, if followed without change, would have taken her across and ahead of the Ever Smart’s bow from port to starboard. Hence, the Ever Smart considered this to be a crossing encounter. The Alexandra I, however, was waiting for a pilot in order to enter the narrow channel, with no intention of crossing ahead of the Ever Smart. In her view, this was an encounter between one vessel entering and one leaving the same narrow channel, which called for the application of rule 9(a) only. This was therefore a case of equivocal crossing, where there was disagreement as to whether the vessel outside the entrance was crossing or entering the narrow channel. This article focuses on the UK supreme court’s methodology, as applied in The Alexandra I case, for assessing and predicting the navigation of a vessel as a precursor and necessary step for the proper application of the rules. The decisions rendered by the English courts in The Alexandra I case seem to be predicated on exactly this premise: vessels involved in an equivocal crossing in or near the entrances of narrow channels need to determine whether they are actually crossing or just appear to be crossing. If they only appear to be crossing, for instance because one vessel is leaving a narrow channel and another is entering it, rule 9(a) will govern the encounter, while rule 15 can be dis-applied (infra, chapter 2). To make a distinction between when the situation might call for one rule or the other, the UK supreme court sought to clarify how one can assess and predict the navigation of an observed vessel that is approaching the entrance of a narrow channel. Taking an analytical look at this decision, I argue that the espoused assessment methodology relies principally on factors which can be detected, recognized and understood by an observing vessel without the need to be in privity to the particular intentions of the seafarers on board the observed target vessel (infra, chapter 3). However, the methodology followed in this decision does not in my opinion necessarily lessen the difficulty which vessels have to contend with in assessing the navigation of vessels encountered in or near narrow channels. In fact, an observing vessel may reach different, but equally plausible conclusions about the navigation of an observed target vessel, by following the very same approach as the UK supreme court. Confining our analysis to the case of equivocal crossings within or near narrow channels, we will consider examples of this problem in chapter 4. To mitigate the problem, however, this article proposes that the need for selecting between rule 15, the crossing rule, and rule 9, the narrow channel rule, might not be necessary (infra, chapter 5). The duties under both rules seem to be compatible, such as to make it possible for them to be applied concurrently in narrow channels or at their entrances. A concurrent application would circumvent the problems that arise when two vessels take contradictory actions because they have reached different conclusions about which rules are applicable after assessing the situation differently from one another.
This article is therefore an exploration of the UK supreme court’s approach to the assessment and prediction of other vessels’ navigations, and a critical analysis of its usefulness for solving equivocal crossings in or near the entrances of narrow channels.