In Evergreen Marine (UK) Ltd v Nautical Challenge Ltd  EWCA Civ 2173, we have the first Court of Appeal decision on collision liability since Bow Spring v Manzanillo II  EWCA Civ 1007;  1 WLR 144, in 2004.
On the 11th February, 2015 the “Alexandra I” and the “Ever Smart” collided just outside the dredged channel by which vessels enter and exit the port of Jebel Ali…” At first instance Teare J held that the crossing rules did not apply, so that when ‘Alexandra 1’ the inbound vessel approached the dredged channel (“the narrow channel”), she was not under a duty to keep out of the way of ‘Ever Smart’, the outbound vessel. Instead, the navigation of the two vessels was governed by the narrow channel rule, rule 9 of the Collision Regulations, in the case of ‘Ever Smart’ and rule 2 of the Collision Regulations, the ordinary practice of seamen (i.e., the requirement of good seamanship), in the case of ‘Alexandra 1’ . Furthermore, the crossing rule was inapplicable because ‘Alexandra 1’ was not on a sufficiently constant direction or heading to be on a course; she was waiting to embark a pilot rather than herself being on a course at the relevant time.
Teare J found both vessels to have been at fault and in apportioning liability had regard to the relative culpability and causative potency of each vessel’s faults. Those of ‘Ever Smart’ were very serious in terms of culpability. ‘Alexandra 1’ ’s fault was culpable to a substantial degree. In terms of relative culpability, the faults of ‘Ever Smart’ were much more culpable than those of ‘Alexandra 1’. The ‘Ever Smart’, due to her unsafe speed, contributed far more to the damage resulting from the collision than the very much lower (and safe) speed of ‘Alexandra 1’ , and its. It followed that the causative potency as greater than that of ‘Alexandra 1’. Teare J held that ‘Ever Smart’ should bear 80% of the liability for the collision and ‘Alexandra 1’ 20%.
The Court of Appeal has now upheld the decision of Teare J. For the crossing rules to apply both vessels, the give-way vessel included, must be on sufficiently defined courses for the crossing rules to apply. Had the crossing rules otherwise have applied it was argued that they were to be disapplied because ‘Alexandra 1’ ’ was “a vessel restricted in her ability to manoeuvre” within rule 18 (a)(ii) of the Collision Regulations. the definition contained in rule 3(g)(iii), provides as follows:
“ The term ‘vessel restricted in her ability to manoeuvre’ means a vessel which from the nature of her work is restricted in her ability to manoeuvre as required by these Rules and is therefore unable to keep out of the way of another vessel. The term ‘vessels restricted in their ability to manoeuvre’ shall include but not be limited to:
(iii) a vessel engaged in …..transferring persons…while underway;”
For the ‘Alexandra 1’ it was argued that she came within the definition as she was waiting in the pilot boarding area for the pilot to board with minimum steerage way. The Court of Appeal rejected this and upheld Teare J’s conclusion that:
“….had the crossing rule applied and ‘Alexandra 1’ ’ been obliged to keep out of the way of ‘Ever Smart’ she could have done so, for example at C-6, by putting her engines astern and so permitting ‘Ever Smart’ to cross ahead in safety or by turning to starboard. She was not restricted in her ability to take such action by reason of embarking the pilot because that work had not commenced (and never did commence)….”
The Court of Appeal also upheld Teare J’s decision on causative potency. The Judge was not precluded, when apportioning liability, from considering the relative impact of each vessel’s faults on the severity of the collision and no double-counting had been involved. Causative potency has two aspects; the first relates to the extent to which the fault contributed to the fact of the collision occurring; the second, to the extent to which the fault contributed to the damage or loss resulting from the collision. Excessive speed is a prime example of a fault likely to contribute to the extent and severity of the damage or loss suffered. A Judge may take into account the propensity of excessive speed to increase the damage suffered when undertaking the exercise of apportionment – and thus to have regard in broad terms to the magnitude of the damage sustained. The excessive speed of the ‘Ever Smart’ bore on both the fact of the collision and its severity, amounting to the separate counting of two different (and cumulative) aspects of the same fault.