Lloyd's Maritime and Commercial Law Quarterly
MAKE ME A (NARROW) CHANNEL OF YOUR PEACE: THE NARROW CHANNEL AND CROSSING RULES RECONSIDERED
Ralph Morley *
This article analyses the recent decision of the Court of Appeal in The Ever Smart regarding the interaction between the narrow channel rule (Rule 9) and the crossing rules (Rules 15–17) of the International Regulations for Preventing Collisions at Sea, with a focus on the court’s assessment of a hypothetical situation in which the colliding vessels’ obligations under the crossing rules would have been reversed. It considers why the crossing rules apply in some, but not other, narrow channel situations and concludes that the true principle underlying these decisions, which the court failed to identify, is the question whether the crossing situation arose because of a breach of the narrow channel rule.
INTRODUCTION
If collision trials are rare beasts in the modern Admiralty Court, collision appeals are almost extinct in the wild. They have not, though, wholly perished. In The Ever Smart,1 the Court of Appeal sat (with Elder Brethren of Trinity House as nautical assessors) to hear an appeal on liability in a collision case for the first time in over a decade.2 This presented the Court of Appeal with the need to resolve the interaction between the potentially competing requirements of the “narrow channel” and “crossing” rules of the International Regulations for Preventing Collisions at Sea 1972 (“COLREGs”).3 These rules have a venerable heritage,4 but, as the case showed, the almost infinite variety of circumstances in which they might fall to be applied can still present questions which the courts have never previously considered.
The Court of Appeal’s decision was, on the facts, correct. However, it missed an opportunity to set out the principle which underpins the decisions courts have reached in
* Barrister, 7 King’s Bench Walk, London. I am grateful to Richard Sarll and Lieutenant Commander Jonathan Wordsworth, Royal Navy, for their suggestions when discussing aspects of this article. All errors remain my own.
1. Evergreen Marine (UK) Ltd v Nautical Challenge Ltd (The Ever Smart) [2018] EWCA Civ 2173; [2019] 1 Lloyd’s Rep 130.
3. These rules have the force of law for British ships under the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996, MSN 1781.
4. The narrow channel and crossing rules have, in one form or another, been part of collision regulations since the first regulations issued by Trinity House in 1840, reported at (1840) 1 W Rob 488; 166 ER 654. The narrow channel rule was not in force in the United Kingdom from 1863 to 1880, with disastrous results, including the loss of hundreds of lives when the pleasure steamer Princess Alice collided with a collier in the Thames and sank in 1878: see J Kemp, “The COLREGS and the Princess Alice” (2008) 61 J Navigation 271.
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