4.1 The Heranger collision – An example of a difficult navigation to predict:
The Heranger was proceeding along the Long Reach channel down the river Thames, keeping to starboard at all times. Where the Long Reach channel ends, another channel by the name of St. Clement’s Reach begins. This point is marked by the Stone Ness Light. This navigational mark also coincides with a bend in the river and the narrow channels running along it. As the Heranger was navigating towards the Stone Ness, she could see behind the bend on her port bow another vessel, the Diamond, about a mile distant, proceeding up river. Due to the curvature of the river, the Heranger could only see the masthead and the green starboard light of the Diamond. Outside a narrow channel, this would be a clear telltale sign of a crossing encounter. However, because the vessels were in a narrow channel, the Heranger expected the Diamond to follow the curvature of the channel and open up her red port side light in due time. Indeed, the Heranger “kept her course and speed in the expectation that the Diamond would open her red light as she rounded Stone Ness under starboard wheel and would pass the Heranger port-to-port”,(1) Id., at p. 205 col. 1.as the keep-to-starboard requirement would entail. However, the Diamond was heading towards a wharf which lay across and on the other side of the river and thus was not actually intending to round the bend by starboarding, but rather altered her course to port, in order to cross to the opposite bank of the river. This brought the Diamond ahead of the bow of the Heranger when they were about two cables apart and the collision could not be avoided. By the time the Heranger realized that there was a danger of collision, at about four cables distance or two minutes before collision, she stopped her engines and when the distance reduced to two cables, or one minute before collision, she put them full astern. However, these actions proved to be insufficient.
The dispute did not revolve around whether or not the Diamond was at fault, as she clearly was, due to her decision to make a port alteration and cross ahead of the bow of the Heranger at a very close distance. It was rather about whether or not the Heranger should also bear a portion of the blame for not reversing her engines earlier.(2) The Heranger did bear 1/3 of the liability in the end, even though it was recognized that the collision was mainly caused by the completely unforeseen actions of the Diamond.In deciding the matter, the then House of Lords noted that there existed “no rules which apply to the particular facts. Deciding which action should be taken can only depend on the requirements of good seamanship and the application of the ordinary principles of the law of negligence.”(3) Ibid., at p. 210 col. 2 – 211 col. 1.Any reference, even by analogy, to the duties under the crossing rule was discarded.(4) Ibid., at p.211 col. 1.The Heranger was ultimately held partly at fault for waiting until the vessels were two cables apart to put her engines full astern, when as a matter of good seamanship, she ought to have done so at a distance of four cables, when the danger of collision was identified.
In any case, what interests us in this case is not so much whether the crossing rule ought to have applied to this situation or not(5) Although the case was not treated as such, it is my opinion that the two vessels were clearly approaching each other on a crossing course. A risk of collision was deemed to have existed at least from the moment the vessels were four cables apart, and it can be argued that the risk was there even before that point. All the elements of the crossing rule were met, and the rule could have been reasonably held to apply. Its application would not have necessarily affected the fault-apportionment but would have grounded the decision on less esoteric rules than the ‘principle of good seamanship’., but rather how the Heranger’s expectations were based on a valid assumption, the application of the keep-to-starboard requirement, and yet, those expectations proved to be wrong. It was quite clear from the case that the Heranger’s reluctance to reverse the engines earlier, which was described as a drastic measure for a vessel of her size, was motivated by the false conviction that the Diamond was following the course of the narrow channel and was therefore not a crossing vessel. She maintained this belief even when the vessels were only four cables apart. With the benefit of hindsight, one can criticize the Heranger for not realizing, based on the Diamond’s observable manoeuvres, especially once the latter had reached and passed Stone Ness where the channel bends without turning to starboard, that this was a crossing situation. However, it is important to remember that the increased proximity between vessels in narrow channels often leaves vessels with little time to assess in the first place, and perhaps no time at all to reassess their prior conclusions. The Heranger assumed that the Diamond would abide by the keep-to-starboard requirement and was in a way justified in not assuming she would cross ahead. Based on the location of navigation and the applicable bylaws(6) Navigation in the river Thames is subject to specific rules incorporated in the bylaws which are established by the Port of London. This case was judged under the bylaws which were in force between 1914 and 1934.in the river Thames, expecting that the Diamond would keep to her starboard side of the channel was legitimate. It is an accepted principle under English Law that between two vessels proceeding in opposite direction along the same narrow channel, the narrow channel rule applies even though the vessels might appear to be on a crossing course due to bends and curves in the channel.(7) The Empire Brent, (1947) 81 Ll.L.Rep. 306, p. 312 col. 1.Nonetheless, in this case, it led the Heranger to mis-predict the intentions of the other vessel. One can argue that the presence of a wharf on the other side of the river should have alerted the Heranger to the possibility that the Diamond might have been aiming towards it. Nonetheless, before the Diamond reached the Stone Ness without changing course to starboard in order to turn into the Long Reach channel, both possibilities would have been valid. Once that point was reached, the distances were already so close that there was no time for further assessment and only immediate action could have avoided a collision.