3.3 Common features in the approach of the UK supreme court to situational assessment:
The range of factors taken into account by the UK supreme court in its approach to the assessment of the situation/navigation of another vessel can seem to be broader in the context of the construction of the duty to maintain course and speed. When classifying the navigation of the vessel Alexandra I, focus was plainly on inferences drawn from observation of her manoeuvres without much taking into account, or at least not explicitly, other factors, such as the location of the vessel or the requirement for compulsory pilotage, the latter of which was the main reason for the presence of the vessel in front of the entrance.
This may have been justified by the fact that an understanding of the reasons behind the presence of the Alexandra I near the entrance of the narrow channel would not have changed the end result under the analysis of the UK supreme court. Indeed, the decision gave the same treatment both to vessels that are passing by the entrance and to vessels that are waiting to board a pilot. Neither vessel is bound by the keep-to-starboard requirement. Making a distinction between the two was thus unnecessary.
Moreover, it might not be entirely accurate to say that assessing the navigation of the approaching vessel does not take into account other factors than the observed manoeuvres. The reasoning behind why the crossing rule can be dis-applied when the approaching vessel is already shaping her course to enter the narrow channel is predicated on an understanding of the implication of the application of the keep-to-starboard requirement. Indeed, upon noticing that an approaching vessel bearing on the port bow is clearly on her way to enter the narrow channel, an outbound vessel can deduce, by applying the keep-to-starboard requirement, that the approaching vessel will be altering and keeping-to-starboard, thus ensuring a safe port-to-port passing. Therefore, it is by combining information drawn from where the approaching vessel is coming from, her apparent manoeuvres and knowledge of the applicable rules, that the outbound vessel infers useful conclusions about the approaching vessel’s navigation. This might not have been made explicit by the UK supreme court simply because it is assumed to be self-evident.
Whatever factors were omitted by the UK supreme court in classifying the navigation of the Alexandra I, e.g. possibility to acquire knowledge of the actual intentions of the Alexandra I, I would argue that it is because they fail to be independently discernible. In other words, they require the outbound vessel to inquire about, or otherwise acquire, special knowledge of the intentions of those aboard the approaching vessel. The focus of the UK supreme court is however on what can be discerned by a competent mariner, with proper knowledge of the regulations, keeping a proper look-out. And this is not dissimilar to how the court decided which types of alterations do not violate the stand-on vessel’s duty to keep course and speed. The determining factor is that the reasons behind the alterations have to be apparent to the give-way vessel. It seems therefore that the UK supreme court’s general approach to the assessment of navigation is characterized by a dominant feature: the assessment should be based on sources of information which are available to any vessel subject to the COLREGS that is in a similar position to the one under scrutiny, without having or seeking to obtain some special knowledge outside of what can be deduced or inferred from keeping a proper look-out and being aware of the characteristics of the locus of navigation (e.g. water depth, marked wrecks/obstructions, sea and weather conditions, VTS communications, applicable regulations and so on and so forth).
The UK supreme court’s use of or reference to a varied range of expressions/concepts, such as ‘observable manoeuvres’, ‘object-in-mind’, ‘apparent nautical manoeuvre’ in different parts of the decision, is not necessarily indicative of a change in the approach. It is rather in my opinion an attempt by the court to focus on those aspects that seem to have the most pertinence for the specific issue under scrutiny. The test remains the same. When the UK supreme court says “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”,(1) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 104.my proposed understanding is based on the following:
The assessment is not about simply observing the manoeuvres that a vessel is undertaking during a specific length of time.
The predictions must be informed by other factors apart from pure observation of the manoeuvres, such as the characteristics of the location and the requirements imposed by the applicable regulations.
Only those factors which are susceptible of being detected, recognized and understood without special knowledge of the actual intentions of the observed vessel are to be taken into account. However, special circumstances might require vessels to establish VHF communication in order to inform one another of exceptional factors that might not be readily apparent to the other vessel through visual and/or equipment-based observation.
The assessment does not entail uncovering or discovering the actual intentions of the observed target vessel. It is what can be reasonably inferred from what is shown and done on the target vessel, rather than what is thought or said, that should prevail. Even if knowledge of the actual intentions of a target vessel is acquired, preference should be given to what can be observed being done by that vessel.
Vessels ought to be aware of any potential discrepancies between what they intend on doing and what their actions might communicate to other vessels regarding those intentions. In the case of a stand-on vessel, for instance, one could even argue that she has a duty to confine any changes in course and/ or speed to those that would be reasonably expected by other vessels observing her manoeuvres under the given circumstances, giving special attention to factors such as the locus of navigation, the applicable regulations, traffic, weather and/or sea conditions.
For the sake of simplicity and ease of writing, we will continue referring to this methodology wherever necessary as the discernible navigation test.
With that said, the next couple of chapters will contemplate the usefulness of the UK supreme court’s approach to predicting and/or classifying the navigation of vessels in or near narrow channels for the purpose of determining the applicable rule(s).