Lloyd's Maritime and Commercial Law Quarterly
SHALL THE VESSEL BEING OVERTAKEN GIVE WAY TO THE OVERTAKING?
Jingsong Zhao*
Two significant cases of collision liability, The Lok Vivek and The Koscierzyna, have been heard in the Admiralty Court and the Court of Appeal recently. One of the issues they share is whether r. 17(a)(ii) of the Collision Regulations 1972
1
is an option or an obligation. The conclusion in the judgments is that, although r. 17(a)(ii) is expressed in permissive terms, situations may arise in which the requirements of good seamanship require a stand-on vessel to take avoiding action before the stage at which r. 17(b) applies. In this paper, these two cases are reviewed mainly to address this issue, while comments are also made on several other aspects of the judgments.
1. Introduction
A collision situation when one vessel is in sight of another may be divided into four stages:2
1. Freedom stage:
At long range, before risk of collision exists, both vessels are free to take any action.
* PRC Manager, Holman, Fenwick & Willan, Hong Kong; Associate Professor, Dalian Maritime University, China (1992). The author acknowledges with thanks the assistance of Professor W. G. Price, Professor R. P. Grime, Mr P. A. Wilson and Mr R. Show of the University of Southampton, and Mr Hugh Brown, Partner, Holman, Fenwick & Willan, Mr Anthony Day, Partner, Holman, Fenwick & Willan, Captain Richard Carpenter, Director, Thomas Miller P. & I. and Mr Robert Wallis, Partner, Hill Taylor Dickinson, in the corrections, additions and deletions they have made to and from this text.
A list of abbreviations used in these footnotes is printed infra, fn. 104.
1. See Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 (S.I. 1996 No. 75); Merchant Shipping Notice No. M. 1642/COLREG. 1.
2. Cockcroft & Lameijer, 116.
Before 1975, when the 1972 Regulations first came into force, it was divided into three rather than four stages. In The City of Puebla (1891) 3 Ex.C.R. 26, 26, Begbie, J.V.A., said that: “There are three stages in a collision: first when it appears possible, there being merely a chance of a collision occurring: second, when a collision is imminent; third, when it is inevitable.”
After 1975 however some commentators viewed it as five stages: “If expressed in stages, there would be five: 1. Before the vessels are close enough for duties to arise, any action is permitted. 2. When duties arise, the stand- on vessel for a time must keep course and speed. 3. When it is apparent that the give-way vessel is not taking appropriate action, the stand-on vessel may act under Rule 17(a)(ii) to avoid collision by her manoeuvre alone. (Parenthetically she had better succeed). 4. If the stand-on vessel does not act under 17(a)(ii) she will reach a stage, however brief, where she must keep course and speed under Rule 17(a)(i)—because she will be close enough for give-way vessel action to counteract hers. 5. Finally, she will reach the point where she must act under Rule 17(b)—in extremis.” See Brown, 82.
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