2.3 The English courts divergent conclusions about the navigation of the vessel Alexandra I:
The two vessels could not agree on which rule governed, the collision took place and the courts had to determine if the situation called for the application of the narrow channel rule or the crossing rule. Application of both rules concurrently seemed to be out of the question as far as the admiralty court and the court of appeal were concerned. This possibility will be discussed later on ( infra , chapter 5). For now, we will take a summary look at the position of the admiralty and appellate courts and contrast it with the decision of the UK supreme court, as that will pave the way towards discussing the UK supreme court’s approach to assessing situations involving an encounter between an outbound vessel and a vessel approaching the entrance of a narrow channel.
One of the determining factors in the decisions of the admiralty court and the court of appeal was that the vessel Alexandra I was considered and treated as a vessel entering the narrow channel. This was held to be the case, despite the fact that she could not enter as a pilot had not yet boarded. But with that determination being made, the decision of the two courts was then a simple application of the principle introduced earlier in The Canberra Star (supra, 2.1): The keep-to-starboard requirement should have been enough to ensure a safe port-to-port passing between the two inbound and outbound vessels. The court of appeal therefore concluded that “[t]his was not a situation where it is necessary to apply the crossing rules to secure safe navigation – and if it is not necessary to apply the crossing rules it can fairly be said that it is necessary not to apply them, so as to avoid adding a layer of confusion”. (1) The Alexandra I, [2019] 1 Lloyd’s Rep. 141, at para 74(ii).In addition, these two courts found it difficult to accept a concurrent application of both the crossing and the narrow channel rules. In their analysis, they attempted to show that the stand-on vessel’s duties under the crossing rule were incompatible with the keep-to-starboard requirement. In their opinion, the duty to keep course and speed stifled the stand-on vessel’s ability to make the alterations necessary to keep-to-starboard of the narrow channel. This incompatibility is solved only if one of the rules is foregone. Both these reasons justified dis-applying the crossing rule(2) The resolution of the case also depended on determining whether there is a built-in “steady course” condition in the crossing rule which must be fulfilled before the rule becomes applicable, which led the supreme court to tackle the question of risk of collision assessment. While these are interesting topics, which also involve a degree of situational assessment, the concept of ‘risk of collision’ is complex and deserves to be discussed separately.in favour of the narrow channel rule. This resulted in holding the Ever Smart 80% to blame for her failure to remain on the starboard side of the narrow channel.
Although the UK supreme court did not disagree with the idea that the crossing rule may need to be dis-applied in certain cases in favour of the narrow channel rule, it held that The Alexandra I collision did not represent such a case. To arrive at this conclusion, the court relied on making a distinction between three different groups of vessels which can be observed by an outbound vessel approaching the entrance of narrow channel: transiting vessels, inbound vessels and waiting vessels(3) The UK supreme court refers to these as Group 1, Group 2 and Group 3 vessels respectively. For the sake of clarity, an appellation which describes the goal of each approaching vessel in these three groups will instead be used in this article..
The UK supreme court defined transiting vessels as being vessels which are moving past the narrow channel’s entrance without “intending or preparing to enter it at all”.(4)21 The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 134.Inbound vessels on the other hand do not only intend to enter the channel but are also “on their final approach to the entrance, adjusting their course to arrive at their starboard side of it”.(5) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 134-135.For transiting vessels, the UK supreme court reiterated that the keep-to-starboard duty is irrelevant as they are not proceeding into the narrow channel, where the duty would apply. On the contrary, the supreme court found, albeit in obiter dicta, that it was necessary for inbound vessels to follow rule 9(a) in order to be on the starboard side of the narrow channel upon entering:
“… the necessity to disapply the crossing rules [i.e. rules 15, 16 and 17] arises because, once she [i.e. the inbound vessel] is shaping and adjusting her course to enter the narrow channel, the approaching vessel is already having her navigation determined by the need to be in compliance with rule 9(a) when she reaches the entrance, that is, to arrive at her starboard side of it, on a course which enables her to continue on her starboard side of the channel.”(6) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 138.
However, the vessel Alexandra I was distinguished by the UK supreme court from both transiting and inbound vessels. The Alexandra I reached the pilot boarding area approximately half an hour before the collision, where she remained until the collision. At no point had she made an attempt to enter the channel, since she could not do so without a pilot. Hence, the UK supreme court saw it fit to treat her as a waiting vessel. Vessels in a similar position to the Alexandra I are “also intending and preparing to enter, but waiting to enter rather than entering…They may be stationary, or moving, although still waiting to enter”.(7) The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 134.Here the duty to keep-to-starboard was held to be ineffective in solving the encounter with an outbound vessel, since it should not yet apply to the waiting vessel. Only vessels which are discernibly already manoeuvring to shape their course in order to enter the narrow channel, i.e. inbound vessels, were said to be concerned with this duty. As the narrow channel rule became inapplicable, the reasons to potentially set aside the crossing rule also disappeared in the eyes of the UK supreme court. The decision of the court of appeal was thus reversed,(8) As mentioned earlier (supra, note 15), the decision of the UK supreme court hinged upon a determination of the actual conditions of application of rule 15. The UK supreme court rejected the notion of a ‘steady course’ requirement and held that the application of rule 15 depended on only three conditions: (i) the vessels must be in-sight, (ii) must be on a course, and (iii) such course must be so as to involve a risk of collision. This led the court to discuss the role of rule 7(d) in the determination of the risk of collision. However, these points will not be discussed in this article.and the crossing rule was held applicable instead of the narrow channel rule. The supreme court did not however venture into deciding the apportionment of liability.(9) The parties did not request the liability apportionment to be re-considered as they preferred that point to be re-visited by the admiralty court. See The Alexandra I, [2021] 1 Lloyd’s Rep 299, para 147. After it was remanded, the Ever Smart’s share of liability was reduced, but only from 80% to 70%. The admiralty court, following the UKSC’s decision, recognized that the Alexandra I’s failure to keep out of the way under the crossing rule created a situation of danger. However, taking into account the causative potency and the degree of blameworthiness of the faults of each vessel, the faults of the Ever Smart (i.e. a defective look-out, not keeping-to-starboard, failure to take action under rules 17(a)(ii) and 17(b), unsafe speed) were still considered to be more causative and blameworthy. See The Alexandra I [2022] 1 Lloyd’s Rep. Plus 56, para 150-151, 163, 171, 176-177, 185.
Beyond the differences in the conclusions of the courts with regard to the applicable rules, what is of interest for us in this case is the different ways in which the vessel Alexandra I was treated and classified throughout the case. The admiralty court and the court of appeal gave significant weight to the fact that the Alexandra I intended to enter the narrow channel. At no point before or at the moment of the collision did the Alexandra I attempt to enter, but her intention was indeed to do so as soon as she had a pilot on board. This was enough for both the admiralty and the appellate court to consider her an inbound vessel and apply the narrow channel rule. The UK supreme court however gave no heed to those intentions. It focused almost exclusively on what a vessel in the position of the Ever Smart could infer about the Alexandra I’s navigation, based on an ongoing observation of her manoeuvres. Because there was no sign of entry, she was considered a waiting vessel with no duty to comply with the narrow channel rule. Different approaches lead to different results. Chapter 3 explores the supreme court’s approach to situational assessment.