MarIus

5.1 Crossings or equivocal crossings at the entrance of a narrow channel:

As long as the vessel approaching the entrance is on the port bow of the outbound vessel (Fig. 2), the navigation of the latter remains virtually unaffected.

If the crossing rule applies, as is the case when encountering transiting (Fig. 2.1.) and waiting (Fig. 2.3.) vessels, the outbound vessel is under a duty to maintain course and speed as the stand-on vessel, which we determined comes down to maintaining the course and speed necessary to keep-to-starboard. If the crossing rule does not apply, for example when meeting an inbound vessel (Fig. 2.2), the narrow channel rule still obliges the outbound vessel to keep-to-starboard. The importance of determining to which group the approaching vessel belongs is limited to the approaching vessel itself, for whom the duties will vary depending on which rule applies.

Under the crossing rule, the approaching vessel will have the obligation, as the give-way vessel in this situation, to keep out of the way of the outbound vessel. While under the narrow channel rule, the vessel must enter the narrow channel while keeping-to-starboard. Therefore, it seems that there is a higher emphasis on the ability of the vessel that is approaching the entrance of the narrow channel, while bearing on the port bow of outbound vessels, to determine which of the narrow channel or the crossing rule applies. Viewed under this lens, the focus on even the discernible navigation of the approaching vessel seems unnecessary. On the one hand, the outbound vessel has the same duties regardless of the applicable rule. On the other, the approaching vessel is de facto aware of her actual intentions. By extension, the approaching vessel ought to be aware of the discrepancy between her actual intentions and her discernible navigation, if such discrepancy exists. The Alexandra I collision is a perfect example. While the vessel had the intention of entering the narrow channel, the vessel would have also been aware that her navigation before and at the moment of the collision neither conveyed those intentions, nor were they intended to do so. The Alexandra I was not in a position to enter the narrow channel and thus would have been cognizant that (i) the narrow channel rule did not yet apply to her and (ii) an outbound vessel would not be able to forecast her future intention to enter from her discernible navigation at the time when she was near the entrance.

Equally, discerning the navigation of the approaching vessel is no more useful when we consider the situation where the approaching vessel is bearing on the starboard bow of the outbound vessel, making the latter the give-way vessel under the crossing rule (Fig. 3). A similar scenario to the one in Fig. 3 was considered as a hypothetical in The Alexandra I decision and the UK supreme court favoured, albeit in obiter dicta, the application of the crossing rule instead of the narrow channel rule.(1) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para. 143-145.The distinction between the three groups therefore once again has no bearing on the duties of the outbound vessel, or, for that matter, on those of the approaching vessel. In all three scenarios, the approaching vessel will be on a crossing course with the outbound vessel, regardless of whether the former is entering the narrow channel (Fig. 3.1) – or not (Fig. 3.2.). The duties of the approaching vessel, as the stand-on vessel, will also not change. They will still be to maintain course and speed. If the vessel were entering the narrow channel, then ‘course and speed’ would correspond to those required to enter it while keeping-to-starboard.

The crossing rule might however not always be an optimal solution in this case. The channel vessel may have limited ability to take early and substantial action to keep out of the way. Insufficient water depth outside the narrow channel can hinder the give-way vessel’s ability to make evasive manoeuvres. Speed alterations might still be possible, but they can also in some cases be undesirable, as they can affect the manoeuvrability of some vessels.(2) As the size of a ship increases, the speed at which the ship can be manoeuvred and kept on course also increases. Rudder action and increasing the propeller’s RPM can improve manoeuvrability, but it may still not be enough to compensate against the effects of wind and currents. See IR.J. P. HOOFT, IR. M. W. C. OOSTERVELD, “The Manoeuvrability Of Ships At Low Speed”, Netherlands Ship Research Centre TNO, report no. 138 S (May 1970), S2/141.This is why the narrow channel rule, and more specifically rule 9(d), may still be necessary.

Rule 9(d) prohibits vessels from crossing a narrow channel, when doing so would embarrass the navigation of a vessel which can safely navigate only within that channel. A similar view can be gleaned from The Canberra Star,(3) The Canberra Star, [1962] 1 Ll. Rep. 24.where the court pointed out that “[t]he rule of good seamanship for a vessel entering a main channel is that she should do so with caution and not hamper traffic already navigating in it.”(4) The Canberra Star, [1962] 1 Ll. Rep. 24, p. 28 col. 2.While the court could not have been referring to paragraph (d) of rule 9,(5) The Canberra Star case was decided under the 1948 version of the COLREGS which did not contain a provision similar to the one found in rule 9(d). During the 1960 amendment of the COLREGS, a narrower version of the current duty not-to-impede was introduced. Under rules 20(b) and 25(c) of the 1960 COLREGS, a duty to not hamper the navigation of a vessel that can navigate safely only inside a given narrow channel was imposed on respectively sailing vessels and power-driven vessels of less than 19.80 meters (or 65ft).the duty is effectively the same. At the very least, it seems that good seamanship also requires an inbound vessel to refrain from entering a narrow channel, when doing so would require her to cross the bow of an outbound vessel if the crossing would hamper the latter’s navigation.

When a vessel is directed to not impede the passage of another, rule 8(f)(i) states that the vessel must “take early action to allow sufficient sea-room for the safe passage of the other vessel”. This obligation, alongside the one in rule 9(d), is usually read as requiring an inbound vessel to take early action not only to avoid a crossing which would otherwise impede the safe passage of an outbound vessel that can only navigate within the narrow channel, but also to actually preclude the risk of collision from arising.(6) Craig H. Allen, “Narrow Channel Collision Prevention,” 21.Absent a risk of collision, the application of the crossing rule may also be eliminated. However, it does not entirely remove any possibility of it applying. Rule 8(f) does not exonerate vessels from following other rules which may be applicable under the circumstances, as stated in subparagraphs (ii) and (iii):

(ii) A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the Rules of this Part.

(iii) A vessel, the passage of which is not to be impeded remains fully obliged to comply with the Rules of this part when the two vessels are approaching one another so as to involve risk of collision.

The reference to the “Rules of this Part” includes rules 4 to 19, and therefore the crossing rule (rule 15) as well. The duty not-to-impede does not prima facie exclude the crossing rule from applying.(7) Nicholas J. Healy, Joseph C. Sweeney, The Law of Marine Collision, 150.The effect that paragraph (f) has, however, is to make it the obligation of both the giveway and the stand-on vessel to take action in order to avoid a collision.(8) Craig H. Allen, “Narrow Channel Collision Prevention,” 21.Under rule 8(f)(ii), the stand-on vessel cannot avail herself of the obligation to maintain course and speed under rule 17(a)(i) to justify not taking early action under rule 8(f)(i).(9) Harry Hirst, Collisions at Sea Volume 1: Liability and the Collision Regulations, (United Kingdom: Xilbris, 2019), 193.But at the same time, it does not exonerate the give-way vessel from keeping out of the way just because she is a vessel whose passage should not be impeded.

The rules could thus be read to impose a duty on the crossing vessel to take early action to prevent a risk of collision from arising with a channel vessel. However, if such a risk develops, whether because of the inaction of the crossing vessel or the inefficacy of her action, and the crossing rule is engaged, the channel vessel is required to take the appropriate actions under the crossing rule as well, notwithstanding the fact that her passage should not be impeded. And at all times, and even though the crossing rule may start applying, the crossing vessel is not exonerated from her duty not-to-impede.

The important thing to note is that the ability of the outbound vessel to identify the approaching vessel’s discernible navigation, based on the circumstances, serves little purpose in determining the applicable rules and accompanying duties in any of these cases. The onus of identifying which rule applies to encounters at the entrances of narrow channels seems to be more or less on the vessel that is approaching the entrance, rather than the outbound vessel. As such, it is not so much the ability of the outbound vessel to identify the approaching vessel’s discernible navigation that is important, as it is the approaching vessel’s ability to differentiate between her actual intentions and the ones that she is making public through her manoeuvres and navigation as they can be observed by other vessels. Indeed, one can argue that it ought to be up to the approaching vessel to make sure that her manoeuvres clearly illustrate her actual navigation goals. If the approaching vessel intends on entering the narrow channel, then she ought to approach the entrance in such a manner as to clearly indicate such intent, for instance by adjusting her course early to show that she is adopting a curving course meant to take her into the narrow channel. On the contrary, if the approaching vessel is incapable of entering the channel, as was the case in The Alexandra I, she ought to be aware that her navigation will not indicate an intention to enter the narrow channel and if she is on a crossing course with an outbound vessel, she ought to apply the crossing rule. And in all cases, the approaching vessel should keep in mind the potential application of the not-to-impede duty.