6 Conclusion:
Regardless of whether or not one has nautical training, it should be apparent that it is no easy task to predict the intentions or the navigation of other vessels. Yet, it is a major component of the collision avoidance rules as discussed in both chapters 2 and 3. The stand-on vessel’s duty to keep course and speed is assessed in light of her discernible navigation. Whether the crossing rule or the narrow channel rule applies at the entrance of a narrow channel is partly dependent on what can be deduced from the discernible navigation of the vessel approaching the entrance. However, predicting navigation is a challenging exercise fraught with risks, as seen in chapter 4. Discernible navigation can be misleading and not representative of the vessel’s actual intentions. Circumstances may be confusing, as two or more assessments of the same situation may be equally plausible. We have therefore to wonder if we can lessen the role that assessment and prediction of navigation plays in determining the applicable rules in equivocal crossing within or near narrow channels.
One possible solution is to recognize that the crossing rule and the narrow channel rule are not mutually exclusive, and that vessels need not choose and follow only one of the two. The rules tend to be clear on what determines their application.(1) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para. 83(ii) and (iii).Overriding an otherwise applicable rule should be approached with caution, especially when the COLREGS do not envisage such an effect. If the conditions of application of the crossing rule are fulfilled, the presence of a narrow channel should have little effect. In most scenarios, the duties under the two sets of rules are far from being incompatible, whether it is from the point of view of the stand-on or the give-way vessel. But above all, admitting that both rules can apply concurrently reduces the role that intentions communication and understanding play in determining the applicable rules. Two vessels approaching the entrance or the bend of a narrow channel in what appears to be a crossing course ought to assume that the crossing rule applies. If the crossing rule does not apply and the two vessels pass each other port-to-port by keeping-to-starboard, no risk is created by the earlier assumption. The duties of both vessels remain essentially the same. If both rules can apply simultaneously, then it becomes unnecessary to distinguish between all the various encounter configurations. This is what we sought to resolve in chapter 5.
Moreover, we have seen that because in most cases the crossing vessel tends to be also the give-way vessel under the crossing rule, there ought to be a bigger onus on the crossing vessel to (i) ensure that her manoeuvres indicate her intentions to cross (or not) and to (ii) be aware when her discernible navigation does not reflect her actual intentions. The goal is to put more focus on clear intentions-communication, and less on intentions-prediction. For instance in sub-chapter 3.2, we determined that a stand-on vessel keeps her course and speed if her manoeuvres are justified by her readily apparent navigation goals or discernible navigation as proposed by this article. However, a different reading of the same duty could be proposed instead in the following manner:
“The stand-on vessel shall restrict her manoeuvres under the duty to maintain course and speed to those which are made necessary by the ostensible circumstances. Ostensible circumstances include factors such as the location of the vessels, applicable regulations that have an effect on navigation, surrounding traffic, weather, sea conditions, of which a vessel in the same position as the give-way vessel can or ought to be aware.”
The purpose is to make vessels more aware of the message their navigation communicates to other vessels and how that may affect the latter’s assessment of the situation, and with it their perception of the applicable rules. The stand-on vessel is aware of her own navigation goals and ought therefore to (i) endeavour to make these intentions ostensible and intelligible to the give-way vessel, while (ii) avoiding any alterations of course and/or speed when they cannot be reasonably expected by other vessels given the ostensible circumstances.
By focusing more on intentions-communication, we put more emphasis on the responsibility of each vessel to be conscious of how their navigation influences the other vessel’s decisions regarding which rules to apply and what actions to take. And by recognizing the possibility that both the crossing rule and the narrow channel rule can apply concurrently, we eliminate the possibility for vessels to disagree on which rules actually apply. Thus, vessels may still be required to show their intentions, but the effect it has on the applicable rules is kept to a minimum when it comes to equivocal crossings in or near narrow channels.