Evergreen Marine (UK) Limited v Nautical Challenge Ltd [2018] EWCA Civ 2173

Problem 1: Which collision rules apply when one vessel is simply drifting, awaiting a pilot?

The England and Wales Court of Appeal upheld the High Court judgment in respect of the collision between EVERSMART (ES) and ALEXANDRA 1 (A1). The collision occurred at the entrance of the narrow channel at the port of Jebel Ali, UAE – shortly before midnight. ES was outward bound when it collided with A1, which was awaiting to embark a pilot in the pilot boarding area. The core issue was whether the crossing rules (rules 15-17) applied without conflicting with the narrow channel rule (rule 9). The Court held that the crossing rules did not apply, and instead the narrow channel rule applied – this required ES to keep to the starboard side of the channel. This is not the same as the requirement under rule 17 that the stand-on vessel shall keep its course and speed. The Court apportioned ES to bear 80% of the liability and A1 to bear 20%.

Secondly, the Court had to consider whether A1’s course was such that it prevented the application of the crossing rules. For them to apply, both the vessels must be on “sufficiently defined courses”. In the present case, A1 was not on a sufficiently defined course (despite slowly moving over the ground) but rather waiting for a pilot. Therefore, the crossing rules did not apply, and the narrow channel rule takes priority.

Finally, the Court of Appeal rejected the Appellant’s submission that the Judge had misdirected himself in regard to apportionment. It was held that when apportioning liability, causative potency has two aspects; the first considers the extent to which the fault contributed to the collision; and the second considers the extent to which the fault contributed to the damage. Causative potency does not have to be restricted to one or the other.

The “Tian E Zuo” [2018] SGHC 93

Problem 1: Two moving vessels both hit an anchored vessel. Importance of identifying causative faults.

This case was in the High Court of Singapore. The case relates to the apportionment of liability for two related collisions; the Arctic Bridge and the Tian E Zuo each colliding with the Stena Provence, an anchored vessel. The core issue of this case is that both the Arctic Bridge and the Tian E Zuo seek to be fully indemnified by the other party for the damage caused by the collision. The Court found the Plaintiff’s “but for” causation test to be insufficient, as the “causation in law” test must also be satisfied. The Court held that the Plaintiff cannot rely on a single event as the primary causal fault. Neither can it downplay other significant events that demonstrate that this is a case involving multiple faults each capable of contributing to the collisions.

Causative faults of the Arctic Bridge were as follows: intentionally leaving three shackles of anchor cable in the water, negligently stopping the engines and thereby drifting into a close quarter situation with Tian E Zuo and negligently crossing the bow of the Tian E Zuo at close quarters on two occasions. Consequently, the anchor chains became entangled as a result of poor lookout. Arctic Bridge breached rule 5 of the COLREGS for failing to appreciate the risk of fouling, continually dragging Tian E Zuo and the speed and direction of their course which resulted in the two collisions.

As to the causative faults of Tian E Zuo; despite being involuntarily towed, Tian E Zuo was not an anchored vessel because it was not in control of its anchor. The vessel had an obligation to keep clear of other anchored vessels, but it failed to keep a proper lookout and consequently failed to appreciate the proximity of the Stena Provence. Lastly, failing to take immediate and adequate action to evade the collision with Stena Provence whilst being towed was held to be as causative as Arctic Bridge dragging Tian E Zuo into collision.

Taking all causative faults into consideration, the Court held there were serious faults committed by both parties. As a result, both were equally blameworthy. Liability was apportioned 50:50.

Written by Yash Patel.

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