3.2 The proper construction of the duty of the stand-on vessel to keep course and speed:
The UK supreme court placed great focus on the manoeuvres of the approaching vessel in order to classify the nature of her navigation for the purpose of determining whether the narrow channel rule might justify disapplication of the crossing rule. This section shows a similar but broader approach to situational assessment; such an approach goes beyond observation of manoeuvres, to take into account other factors which can be detected, recognized and understood independently by an observing vessel. This approach was relied on by the UK supreme court to help identify when an alteration made by a stand-on vessel would not represent a violation of her duty to keep course and speed.
Let us start by observing that the duty of the stand-on vessel to keep her course and speed should not be interpreted so rigidly as to be equated with an absolute and categorical prohibition of any sort of course or speed alterations from the stand-on vessel. It cannot be reasonably expected of vessels to freeze in time their navigation, maintaining without any deviation under all circumstances whichever course and/or speed they were proceeding with at the time when they find themselves under the ambit of rule 17(a)(i). The UK supreme court also made this point very clear:
“… Nor is the stand-on vessel’s obligation to keep her course and speed necessarily an obligation strictly to maintain her precise heading, course, or even her precise speed. If the nautical manoeuvre upon which she is visibly engaged when she becomes the stand-on vessel involves altering her heading or course, or slowing down, she may do so without undermining the obligation of the give-way vessel to keep clear.”(1) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 62.
This interpretation of the duty to maintain course and speed is well accepted under English Law,(2) The position does not diverge U.S. Law either. See US v SS Soya Atlantic, 330 F.2d 732, 1964 A.M.C. 898, at 737; Commonwealth & Dominion Line v. US, 20 F.2d 729, 1927 A.M.C. 1690 reversed on other grounds by 278 U.S. 427, 49 S.Ct. 183, 73 L.Ed. 439.and can be traced back at least to the decision of the court of appeal in The Windsor-Roanoke case.(3) The Roanoke [1908] 4 WLUK 19 (1908), [1908] P. 231.As reported by A. N. Cockcroft and J. N. F. Lameijer,(4) A. N. Cockcroft and J. N. F. Lameijer, A Guide to the Collision Avoidance, 79.this particular collision occurred when the similarly-named vessel, the Roanoke, stopped her engines to take on board a pilot from the Rotterdam pilot boat. The Roanoke was on a crossing course with another vessel bearing on her port bow, making the Roanoke the stand-on vessel which must keep her course and speed. The decision to stop the vessel in order to take on the pilot was a contributing cause to the collision and was contended to be a violation of the duty to maintain course and speed. The court of appeal however exculpated the Roanoke from any fault flowing from this decision and clarified that:
“‘[C]ourse and speed’ mean course and speed in following the nautical manœuvre in which, to the knowledge of the other vessel, the vessel is at the time engaged. It is not difficult to give many instances which support this view. The ‘course’ certainly does not mean the actual compass direction of the heading of the vessel at the time the other is sighted.”(5) A. N. Cockcroft and J. N. F. Lameijer, A guide to the Collision Avoidance, 79 citing Lord Alberstone in The Roanoke (1908) 11 Asp. 253, at p. 239.
By the same token, this flexible construction, first espoused in The Roanoke, was applied later on in The Taunton:(6) The Taunton, [1928] 31 Lloyd’s Rep. 119, p. 120 col. 2.
“[w]hen the rule talks about keeping course and speed it 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. So you keep your speed although you stop, and you keep your course although you alter it 16 points. You keep your course if you are going round the bend of a river although you are altering it to follow the bend. You keep your speed though you stop to pick up a pilot. It follows that if you are crossing the tide your course is to keep diverging; and, therefore, according to the authorities, you are keeping your course although you are continually porting.”(7) The Taunton, [1928] 31 Lloyd’s Rep. 119, p. 120 col. 2.
What these three cases (The Alexandra I, The Roanoke and The Taunton) tell us, is that the duty of the stand-on vessel to maintain course and speed has to be assessed in light of the navigational requirements imposed by the circumstances, as well as the navigation goals which the stand-on vessel has in mind. It does not refer to a specific speed, heading or course measured at a specific point in time. A stand-on vessel constantly porting or starboarding to follow the natural curvature of a channel is maintaining her course and speed.(8) J. W. Griffin, The American Law of Collision, (New York, N.Y.: The Hela Press, 1949),143; The Taunton, id.It would also not be a violation of her duty if the vessel were to reduce her speed, stop or reverse to avoid some navigational hazard.(9) The Dona Myrto, [1959] 1 Lloyd’s Rep. 203, p. 211 citing a passage from The Roanoke (1908) 11 Asp. 253, at p. 239.A vessel slowing down to pick-up a pilot,(10) The Roanoke (1908) [1908] P. 231, at p. 241-242.or accelerating after dropping a pilot, could likewise be in compliance with the meaning of the rule.(11) (American case) US v SS Soya Atlantic, 330 F.2d 732, 1964 A.M.C. 898, p. 737. Although in an English case, The General VII, [1990] 2 Lloyd’s Rep. 1, the ‘putative’ stand-on vessel would have been held at fault for picking up speed after the pilot had disembarked and such action would have been considered in violation of the duty to maintain course and speed, if the overtaking rule was applicable to the collision, since the court considered that the “ordinary and proper manoeuvre” in which the overtaken vessel was engaged ended when she slowed down to pick up her pilot.Presumably, however, this flexibility cannot be unqualified. Not every ‘object’ that the stand-on vessel has in mind, can or should, for that matter, justify an alteration of course and/or speed under rule 17(a)(i).
This freedom of movement is tempered by the requirement that the object-in-mind, or, that is to say, the intentions of the stand-on vessel, be made apparent to the give-way vessel.(12) In my view, there are practical reasons for requiring the object-in-mind of the stand-on vessel to be apparent. The dichotomy of duties between the give-way and stand-on vessels solves the problem of having two vessels taking diametrically opposite and cancelling actions. In a crossing scenario for example, the most instinctive approach for avoiding collision is for one vessel to alter course in order to pass astern of the other vessel. Altering course towards the direction in which the other vessel is located seems to be a “natural” response among subjects both with and without any knowledge of the COLREGS. See John Kemp, “Behaviour Patterns in Crossing Situations”, The Journal Of Navigation (2009), 62, 443–453. Without the give-way/stand-on distinction, the vessel which has the other on her starboard bow will naturally prefer to alter course to starboard to ensure that she passes astern. Likewise, the other vessel having her on the port bow will want to alter to port in order to achieve the same goal. These two actions cancel each other out perfectly, leading the two vessels to move closer and closer to each other. By ensuring that only one vessel has the active role of taking positive actions, this problem can be avoided. The give-way vessel stands a better chance at predicting the future positions and keeping out of the way of the stand-on vessel if the latter maintains course and speed. The duties of the two vessels work in tandem. If the stand-on vessel’s manoeuvres lose predictability, the give-way vessel’s job becomes more difficult to carry out. This explains very well why the give-way vessel must have ‘knowledge’ of the stand-on vessel’s manoeuvres under the duty to maintain course and speed. When the stand-on vessel has in mind an object which requires some form of course alteration, knowledge thereof by the give-way vessel is necessary for maintaining predictability. And predictability can be achieved only if the give-way vessel is capable of understanding, one way or another, what the stand-on vessel is doing.In The Roanoke, it was made clear that for an alteration not to violate the duty to keep course and speed, it had to be justified by “the nautical manœuvre in which, to the knowledge of the other vessel, the vessel is at the time engaged”(Added emphasis).(13) A. N. Cockcroft and J. N. F. Lameijer, A guide to the Collision Avoidance, 79 citing Lord Alberstone in The Roanoke (1908) 11 Asp. 253, at p. 239.Commenting on The Roanoke’s construction of the duty to maintain course and speed, the UK supreme court added in The Alexandra I decision that:
“First the “object you had in view” must be reasonably apparent to the give-way vessel , if the purpose of the obligation to keep course and speed, as explained in The Roanoke, is to have effect. Secondly, the “object … in view” must include, or take account of, the stand-on vessel’s obligation to comply with the other provisions of the Rules . This may include avoiding a collision with a third vessel, which may be approaching the stand-on vessel head-on, or complying with the narrow channel rule in rule 9(a) to keep to the starboard side of the channel, as is implicit in Scrutton LJ’s example of turning to follow a bend in a river.” (Added emphasis).(14) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 64.
There is little doubt here that the UK supreme court is not narrowing down the test to only what is inferable from observing the contemporaneous manoeuvres of the stand-on vessel. A multi-factorial approach, which takes into account external factors, such as the locus of navigation, surrounding traffic or the applicable regulations, is favoured. All of this information, in combination with the visually-and/or radar-observable manoeuvres, help inform the give-way vessel in her efforts to predict the intentions of the stand-on vessel. Our second observation is therefore that determining the object-in-mind of the stand-on vessel requires a multi-factorial approach.
This multi-factorial approach can be read in a couple of ways. On the one hand, it tells us that the location of navigation and the applicable regulations in that area are equally important sources of information. In an area where pilotage is compulsory, incoming or outgoing vessels should be expected to be making their way to the designated area(s) for dropping off or picking-up pilots.(15) E.g. of cases involving collisions taking place under such circumstances include The Albano [1907] UKPC 11 (27 February 1907), The Alcoa Rambler [1949] UKPC 11 (14 February 1949).A vessel proceeding in a narrow channel should be expected to make adjustments to her course in order to follow the shape of a curving channel while keeping-to-starboard. Observation of only the visible manoeuvres of the stand-on vessels might not show at a given time that the vessel is intending on altering course. At a sufficiently faraway distance from where a narrow channel curves, the visible manoeuvres of a stand-on vessel may suggest a straight course. Yet, the upcoming bend ought to let the give-way vessel know that the stand-on vessel might be altering course to negotiate the turn. In other words, the manoeuvre in which a vessel is engaged at a given time might not correspond to the manoeuvre in which they will be engaged at a future point in time. If the give-way vessel is to understand what is being done on the stand-on vessel, reliance on observing the manoeuvres of the stand-on vessel as the sole source of information is not enough. The observed manoeuvres must be analysed side-by-side with factors which can affect the navigation of the observed stand-on vessel.
On the other hand, it also indicates that the manoeuvres of the stand-on vessel must be legitimate and not opportunistic in nature. A manoeuvre made for the sake of getting the vessel faster to her destination or serving a similarly self-interested goal is arguably not enough. The stand-on vessel can manoeuvre only if the reasons behind it are intelligible and comprehensible to the give-way vessel. The examples in the passage above all share this feature. The manoeuvres are made necessary by a fact which is or should be known to the give-way vessel,
e.g. the presence of a third vessel or the keep-to-starboard requirement under the COLREGS. Therefore, the leeway granted to the stand-on vessel can be read to carry the opposite duty for the stand-on vessel to make only those manoeuvres which are motivated by reasons of which the give-way vessel can or ought to be aware, based on the immediate and apparent circumstances.(16) Certain external factors that can affect the navigation of one or both vessels in an encounter might not be equally apparent or discernible to both of them. There is always a risk that the give-way vessel will, for instance, simply not be in a position to have the full picture of the circumstances which might, from the perspective of the stand-on vessel, justify an alteration of speed and/or course. Obstacles or hindrances that are too small to be detected from a distance, small vessels without a radar reflector, sea conditions of which the give-way vessel is not yet aware, etc. A number of circumstances which have little to do with the intentions or the goals of the seafarers on board the stand-on vessel, but which are not discernible to the give-way vessel, might legitimize alterations of course and/or speed. Although the (over-)use of VHF has been discouraged by a number of English courts, there might be no other option in such situations than to communicate with the give-way vessel to inform them of the necessity to make a certain manoeuvre. We will not go further into a discussion of this possibility and whether or not it might amount to good seamanship, but it is worth pointing it out to encourage further reflection.Our third observation therefore is that the factors which inform the assessment of the situation are those which are discernible to the give-way vessel without it being privy to what those on board the stand-on vessel might have in mind in terms of subjective navigation goals.
Our conclusions are in this part threefold. First, the duty to keep course and speed does not translate into a prohibition on any alterations by the stand-on vessel from the moment the crossing rule is engaged. But although the duty of the stand-on vessel might not be so rigid so as to be immutable, a coherent and consistent navigation is still to be expected. For this, only those alterations which are justified by the goal the stand-on vessel has in mind do not violate the duty to keep course and speed. Secondly, it is not enough for the alterations of the stand-on vessel to be in line with her navigation goals, the reasons behind the alteration must also be discernible to the give-way vessel. Thirdly, the reasons are deemed to be discernible if the give-way vessel is capable of recognizing them and understanding their implications for the stand-on vessel’s navigation from the prevailing circumstances. The prevailing circumstances include only those which are discernible to a give-way vessel without any special knowledge of the actual intentions of the stand-on vessel. These circumstances include factors such as the location of navigation, surrounding traffic, knowledge of the applicable regulations, and they must inform, alongside information obtained from observation of the stand-on vessel’s manoeuvres, the give-way vessel’s assessment of the situation.
Applied to The Alexandra I collision, we know the Ever Smart was following the course of the narrow channel proceeding towards the sea. Her presence within the narrow channel would ipso facto entail application of the keep-to-starboard requirement. Therefore, the discernible navigation in which the Ever Smart was engaged was to proceed along the course of the narrow channel while making any course and/or speed alterations necessary for keeping-to-starboard. A vessel within or outside the narrow channel, like the Alexandra I, should reasonably expect the Ever Smart to alter her course to starboard in order to maintain or regain navigation on the starboard side of the narrow channel where she ought to be. This was the conclusion of the UK supreme court and thus the risk of inconsistency between the keep-to-starboard requirement and the duty to keep course and speed was resolved, since the stand-on vessel could potentially comply with both simultaneously.