Crossing Rules re-reconsidered

Quadrant Chambers has noted in an article that, since  last year’s Supreme Court decision in Evergreen Marine (UK) Ltd. v. Nautical Challenge Ltd. [2021] UKSC 6, the Admiralty Court had considered the scope and application of rules 15 to 17 of the International Collision Regulations (the crossing rules) on two occasions:

  • in the re-apportionment trial in Nautical Challenge Ltd. v. Evergreen Marine (UK) Ltd. (No.2) [2022] EWHC 206 and now in the case of
  • The Wilforce [2022] EWHC 1190.

Nigel Jacobs QC and Andrew Carruth have reported on the case relating to the Wilforce’s collision with the Western Moscow:

On May 31st 2019 a collision occurred in a busy Precautionary Area of the Singapore Strait Traffic Separation Scheme between LNG Wilforce (IMO 9627954) and bulk carrier Western Moscow (IMO 9855410). Navigation in the Precautionary Area was governed by Singaporean local rules.

Judge Teare noted that this was the first occasion when the Admiralty Court had considered responsibility for a collision in a Precautionary Area.

The notion of a Precautionary Area was created by the IMO and subsequently introduced into the TSS in the Singapore Straits.

In 2013 the Singapore’s MPA promulgated the measures which should be taken by vessels crossing the TSS and Precautionary Area (which replicated the IMO Recommendations from 2012).

Both vessels had Voyage Data Recorders and a reconstruction was agreed in advance of the trial.

The Western Moscow had been intending to proceed westbound in the TSS, but considered itself constrained by the presence of the southbound tug and tow (the Profit Venture). Accordingly it entered the Precautionary Area and proceeded southbound, subsequently executing a port turn to proceed back towards the westbound lane of the TSS.

The Wilforce was proceeding eastbound at a speed of about 15 knots.

The writers noted that, before addressing the Judge’s approach to the application of the crossing rules, there were two aspects of the Judgment which should be noted. First, the Judge considered that the navigation of the vessels before about C-10 was not causatively relevant since, prior to C-10, there was no risk of collision, even though some aspects of the navigation of Western Moscow were at best questionable.

If Western Moscow had continued its north or north-westerly course at C-7 the vessels would have passed safely. The navigation of the vessels prior to about C-10 was thus part of the historical context for the collision, but not an effective cause. Secondly, there were some limited VHF exchanges between the two vessels after C-3, during which a VHF agreement to pass port-to-port was concluded.

Since VTIS had requested the Western Moscow to call the Wilforce to tell it what Western Moscow proposed to do, the Western Moscow was not to be criticized.

Thus the “traditional” approach to the use of VHF as set out in “The Mineral Damper” [2001] 2 Ll.R. 419 was not applied. The real criticism was that Western Moscow had not complied with its own agreement but that it had continued to turn to port until about C-1½, instead of applying starboard helm.

The crossing rules

The Judge then examined the scope and application of the crossing rules. The Western Moscow alleged that the Wilforce was the give-way vessel and, from about C-7, failed to act in accordance with rule 16. It was further alleged on behalf of Western Moscow that it had complied with Rule 17(a)(i) and maintained its course and speed by continuing its turn to port. The Western Moscow sought to maintain that the Wilforce should bear the preponderance of the blame.

The Wilforce submitted in turn that the crossing rule did not apply because it was only Western Moscow’s fault (in continually porting after C-7 rather than proceeding across the Precautionary Area in a north-westerly direction) that brought about the crossing situation.

The Wilforce relied upon the orthodox proposition that a vessel could not invoke the crossing rule when the ship itself created the crossing situation. It cited the cases of:

  • “Spyros” [1953] 1 Ll.R. 501 at 509 (per Lord Merriman);
  • The “Toju Maru” [1968] 1 Ll.R. 501 at 509 (per Willmer LJ);
  • The “Forest Pioneer” [2007] EWHC 84 at [39] (per Steel J),
  • and the Judge’s own decision in the (first) Nautical Challenge Ltd. v. Evergreen Marine (UK) Ltd. [2017] EWHC 453 at [66].

The Western Moscow challenged this proposition on the basis that it was inconsistent with the reasoning of the UK Supreme Court that the crossing rule applied where the bearing of one vessel from the other remained constant, as it did in the present case from C-7, notwithstanding that this was the consequence of Western Moscow’s continuation of its port turn.

Western Moscow also alleged that the orthodox proposition was inconsistent with the Court of Appeal’s decision in The “Century Dawn” [1996] 1 Ll.R.

What about the orthodoxy that a vessel could not invoke the crossing rule when the vessel itself created the crossing situation as established?

The Judge analyzed the authorities and noted that the approaches were not necessarily consistent: while Lord Merriman and Steel J. considered that the crossing rules did not apply at all, Willmer LJ considered that the crossing rules applied in principle but that the stand-on vessel was at fault for creating the situation, and liability was apportioned on that basis.

The Judge did not find this a straight-forward issue. He highlighted the difficulties in simply disapplying the crossing rules under the scheme of the Collision Regulations, especially in the light of the Supreme Court decision.

However in the final analysis (and on the present facts), the Judge considered that it may not matter whether the crossing rules did not apply as a matter of principle or whether the rules applied but the creation of the crossing situation by the standon vessel at a later stage affected apportionment.

The action which Wilforce was expected to take at C-7 was the same whether under Rule 16 or as a matter of good seamanship. Wilforce should have reduced its speed. The Judge considered that the analysis might be different “where, for some time before the collision, the vessels are crossing so as to involve a risk of collision.” In such a situation the application of the crossing rules would be more straightforward in contrast to the case where the (putative) stand-on vessel acquires stand-on status by reason of its own navigation at a late stage of the encounter.

For its part the Western Moscow was at fault in failing to maintain its course and speed at C-7, whether as a matter of good seamanship or under Rule 17(a)(i). The Western Moscow should have proceeded across the Precautionary Area in the direction of the arrows on the electronic chart. In this regard, its duty to maintain its course and speed was “moulded” by reference to the navigational recommendations under the IMO Resolution and the 2013 Port Circular, the Judge said.

It was not obliged to maintain its port turn, which would have been antithetical to Rule 17(a)(i) and/or duty of good seamanship. In these circumstances, where the putative stand-on vessel creates the crossing situation, the question whether or not the crossing rules are dis-applied in principle or whether this is simply a matter for the apportionment was not resolved and may not even matter.

The Judge apportioned liability 75:25 (Western Moscow:Wilforce) with Western Moscow bearing the preponderance of the blame.

Nigel Jacobs QC and Andrew Carruth, acted for the Owners of ‘Wilforce’ Instructed by Faz Peermohamed, Martin Laughton & Ewan Porthouse at Stann Law.

Vasanti Selvaratnam QC (instructed by HFW) for the Defendant.

Hearing dates: 29-31 March 2022 (and written submissions on the advice of the Assessors received between 6 and 13 May 2022).

2013-built, Norway-flagged, 102,315 gt Wilforce is owned by Compass Shipping 84 Corp Ltd care of manager Awilco LNG ASA of Oslo, Norway. It is entered with Gard on behalf of Compass Shipping 84 Corp Ltd.

2019-built, Philippines-flagged, 25,189 gt Western Moscow is owned by Ratu Shipping Co SA of Tokyo, Japan. It is managed by Nisshin Shipping Co Ltd of Tokyo, Japan. ISM manager is Victoria Ship Management of Manila, Philippines. It is entered with Steamship Mutual (Eastern Syndicate) on behalf of Sea Queen Shipping Corp.