Evergreen Marine (UK) Ltd v Nautical Challenge Ltd [2021] UKSC 6 (19 February 2021)
Citation:Evergreen Marine (UK) Ltd v Nautical Challenge Ltd [2021] UKSC 6 (19 February 2021).
Subjects invoked: 11. 'Legal Methods'.59. 'Shipping'.
Rule of thumb:What happens if 2 ships crash at the junction of the port? The ship approaching the port has to let the ships leaving go out first. In other words, the ship pulling out of the port was less at fault, and the ship moving towards the port which had not stared to manoeuvring in was more at fault. There was however contributory negligence with the ship pulling out the port as well.
Background facts:
This case concerned the subjects of legal methods and shipping law. In terms of legal methods, this case involved 2 principles which seemingly both applied to the facts of this case, the ‘rule of crossing’ and the ‘rule of narrow ports’, but the Court held that in legal debates people have to be very careful to pick the principle which applies most accurately to the scenario, and the Court held that by the facts of this case the ‘rule of narrow ports’ actually applied more accurately to it than ‘the rule of crossing’.
The facts of this case were somewhat straightforward to envisage. 2 ships, the ‘Ever Smart’ and the ‘Alexandra’, collided with each other whilst they were at sea, specifically near the entry to the port of Jebel Ali in the United Arab Emirates. The Alexandra suffered $9.3 million worth of damage, and Ever Smart suffered $2.5 million worth of damage. The collision took place in the evening but it was still fairly bright with good visibility – it was not a case that the 2 ships never saw each other - each ship was relying on a rule of the sea that they believed gave them right of way, and each ship therefore believed that the other one was at fault for the collision. The Port in Jebel Ali is narrow one – there is just enough space for 2 ships to pass each other. Alexandra was moving towards the narrow port after being out at sea, though it had not actually started manoeuvring into the port, but Alexandra was not driving the ship close to the outer edge of the port. Ever Smart was leaving the port, and assumed the Alexandra or other entering ships would be driving alongside close to the edge of the port, so they could just automatically pull out any time. Ever Smart moved out into the port and the 2 then collided. Both blamed each other for the collision so the matter went to Court.
This case basically came down to a friction between 2 principles – the rule of ‘narrow channels’ and the rule of ‘crossing situations’. These are both outlined in ‘The International Regulations for Preventing Collisions at Sea, 1972’ – which are introduced as Acts in virtually every country in the world - the rule of ‘narrow channels’ is rule 9, and the rule of ‘crossing situations’ is rule 15. There was also disagreement over whether even if one driver was found to be responsible, whether contributory negligence should apply to apportion the blame between them both, as referred to in expressly in s187 of the Merchant Shipping Act 1995.
‘Ever Smart’, the ship pulling out of the port, argued that the rule of narrow channels applied – this rule states that when a ship enters narrow ports then it must drive the ship as close to the edge of the port as possible. Ever Smart argued that Alexandra did not do this as it was too far into the middle of the port, it was in breach of this rule, and it was therefore Alexandra who was responsible for the crash. Alexandra argued that the ‘rule of crossing’ applied – this rule states a ship must never take off if it is not safe to do so, and the ship on starboard side, which Alexandra was, always has right of way. Alexandra argued that Ever Smart took off in leaving the port when it should not have done as it was not safe to do, and that Ever Smart caused the crash because of this.
Judgment:
The Court upheld the arguments of Ever Smart, the ship leaving the port. A crucial fact the Court affirmed was that Alexandra was nearing the port, rather than actively turning in, meaning the 'crossing' principle they were relying on technically did not apply. Alexandra, was deemed to be the ship primarily at fault in this case. The Court held that Ever Smart was entitled to assume that the Alexandra was following the rules of the sea when it was nearing the port, and Ever Smart was therefore entitled to pull out and assume that Alexandra would have been driving in the way it was supposed to so there was enough space for both of them. Alexandra was only allowed to rely on the rule of crossing if it was actively turning in at the point of the collision, but it was not, it was only nearing and approaching the port. Alexandra was deemed to be the person who started breaking the law first and they were held responsible for the collision. Alexandra was held liable for the $2.5 million worth of damage to the Ever Smart ship.
The Court sent the matter back to the High Court to consider apportionment and ‘contributory negligence’ – namely whether Ever Smart could have been scrutinising the sea more carefully and noticed that Alexandra was not close enough to the edge like it was supposed to be and was breaking the shipping laws – in other words, even though Ever Smart was not responsible, it was certainly not great navigating and driving from them either. This means that the High Court may deem Ever Smart to have been some % responsible for this crash to reduce the damages they are owed by the Alexandra. Ie if it is 20% contributory negligence by Ever Smart, then Ever Smart’s damages will be reduced by 20% from $2.5 million to $2million.
Ratio-decidendi:
‘145. … Where an outbound vessel in a narrow channel is crossing with an approaching vessel so as to involve a risk of collision, the crossing rules are not overridden by the narrow channel rules merely because the approaching vessel is intending and preparing to enter the narrow channel. The crossing rules are only overridden if and when the approaching vessel is shaping to enter, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach. 147. But it by no means necessarily follows that this should result in some different apportionment of liability for the damage, or even responsibility for the collision having occurred and it was the respondent’s case that it should make no difference…’ Lord Briggs
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.