Lloyd's Maritime and Commercial Law Quarterly
AN ALTERATION OF COURSE?
The Ever Smart
Improvements in maritime safety and technology mean that an appeal to the Supreme Court concerning liability in a collision case is a once-in-a-generation event. Evergreen Marine (UK) Ltd v Nautical Challenge Ltd (The Ever Smart) 1 was the first such appeal since 1976.2 The Court, sitting for the first time with nautical assessors, considered two questions concerning the applicability of Rules 15–17, the so-called “crossing rules”, of the International Regulations for Preventing Collisions at Sea 1972 (“the Collision Regulations”), which, where they apply, determine how vessels are to act when their courses cross with a risk of collision. Differing from the judgments of both the Admiralty Judge and the Court of Appeal,3 the answer the Supreme Court gave to each question was that the crossing rules applied.
The judgment displays a vigorous enthusiasm for the subject matter and offers a comprehensive and practical restatement of the principles underlying the Collision Regulations and the technical concepts that are engaged in construing them. The criterion the Court put forward for why the crossing rules are disapplied in certain circumstances, but were not to be disapplied on the facts of this case, is attractive and makes good sense as a matter of principle, but it is difficult to reconcile with the authorities. It is a bolder alteration of course than the Court considered was the case.
* Barrister, 7 King’s Bench Walk, London.
1.  UKSC 6;  1 Lloyd’s Rep 299;  1 WLR 1436 (hereafter, “Ever Smart (SC)”).
2. The last collision liability appeal to the House of Lords was The Savina  2 Lloyd’s Rep 123.
3. Respectively, Nautical Challenge Ltd v Evergreen Marine (UK) Ltd (The Ever Smart)  EWHC 453 (Admlty);  1 Lloyd’s Rep 666;  1 All ER (Comm) 775 (hereafter, “Ever Smart (QB)” and Nautical Challenge Ltd v Evergreen Marine (UK) Ltd (The Ever Smart)  EWCA Civ 2173;  1 Lloyd’s Rep 130;  1 All ER (Comm) 303 (hereafter, “Ever Smart (CA)”); see also R Morley, “Make me a (narrow) channel of your peace: the narrow channel and crossing rules reconsidered”  LMCLQ 242.
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