“… vessels approaching a narrow channel and intending to proceed along it are not bound by the crossing rule but must enter the channel and, as they do so, keep as near to the starboard side as is safe and practicable in accordance with rule 9. It seems to me to follow that a vessel shaping to enter the channel should, as a matter of good seamanship, navigate in such a manner that, when she reaches the channel, she is on the starboard side of the channel in accordance with rule 9.”
“… The agreed schedule shows that from C-26 until C-23 her course over the ground varied from 119 to 127 degrees (altering to starboard), from C-23 until C-12 her course over the ground varied from 127 to 81 degrees (altering to port), from C-12 until C-7 her course over the ground varied from 81 to 115 degrees (altering to starboard) and from C-7 until C-1.5 her course over the ground varied from 115 to 91 degrees (altering to port). During that same period her heading also varied; from C-26 until C-14 her heading varied from 112 to 84 degrees (altering to port), from C-14 until C-8 her heading altered from 84 to 100 degrees (altering to starboard) and from C-8 until C-3 her heading altered from 100 to 90 degrees (altering to port). This variation of course made good and of heading was no doubt caused by the circumstance that ALEXANDRA I was proceeding very slowly (about 1-2 knots over the ground). At such a slow speed ALEXANDRA I was not very manoeuvrable. Nevertheless she made progress in a broadly east south easterly direction towards the entrance of the channel as she waited to embark the pilot. Was she on a sufficiently constant direction or heading to be on a course? I do not consider that she was. Her ‘course made good’ varied between 81 and 127 degrees (and her heading varied between 84 and 112 degrees). It is difficult to describe that as ‘a course’ (though her preliminary act describes her as being on an east south easterly course). I would describe her as maintaining a broadly east or east south easterly heading as she waited for the pilot vessel to approach. That required her to have some, but not very much, way on. I would describe ALEXANDRA I as waiting for the pilot vessel to arrive rather than being on a course. Had a good lookout been kept on board EVER SMART from C-21 until collision it would have been apparent that ALEXANDRA I had moved less than a mile. It would or ought to have been obvious that she was waiting to embark a pilot.”
“... in any event ALEXANDRA 1 was not on a sufficiently defined course for the crossing rules to apply.”
“Subject to a good aural and visual lookout, it would be reasonable and good seamanship for the Master of Alexander I to have approached the first pair of buoys keeping close to her own side of the entrance channel.”
“Pulling the threads together on authority in the situation where one vessel is approaching a narrow channel intending to enter it and the other vessel is navigating in the narrow channel intending to exit it: i) First, in agreement with Teare J, I regard the observations of both Hewson J and Lord Clarke as powerfully persuasive, supporting the inapplicability of the crossing rules in the present situation. I do not think that either The Canberra Star or Kulemesin is meaningfully distinguishable. ii) Secondly, I respectfully agree with the reasons given by Teare J, Hewson J and Lord Clarke. As already discussed, the risk of potentially different actions being required at the same time is thereby avoided; this is not a situation where it is necessary to apply the crossing rules to secure safe navigation - and if it is not necessary to apply the crossing rules it can fairly be said that it is necessary not to apply them, so as to avoid adding a layer of confusion. iii) Thirdly, the view upheld in The Canberra Star, Kulemesin and by the Judge, ensures continuity and a seamless entry into the channel, as explained in Kulemesin. It is to be underlined that in the present case the entrance to and exit from the narrow channel were in the pilot boarding area and that at all material times ALEXANDRA I was manoeuvring in that area. iv) Fourthly, with respect, like Hewson J, I am wary of over-generalising. On the facts here, I am persuaded that the crossing rules did not apply. Any rule of law in this regard must be limited to factually indistinguishable or materially similar situations. Beyond that, I would not go and, reading the judgment as a whole, I do not think the Judge went either.”
“… The Elder Brethren were, of course, concerned with seamanship not matters of law. But it is plain from the Answer that the Elder Brethren did not consider the crossing rules to have any role to play in the hypothetical East-West situation. To my mind, the Answer provides a comprehensive, realistic guide to safe navigation for both vessels, according to the requirements of good seamanship, and governed by rules 2 and 9. The attraction of the rule of priority under the crossing rules is understandable but less than compelling in the situation with which we are concerned. In my judgment, the Answer reflects the practical reality of good seamanship, within this port area ...”
“… Though the position may not be as obvious as in the case of the stand-on vessel, I am nonetheless satisfied that both vessels, the give-way vessel included, must be on sufficiently defined courses for the crossing rules to apply. That is of the essence of the crossing rules. The need for an appreciation of the situation is not confined to the give-way vessel; the standon vessel must be in a position to appreciate her own status as such - and, additionally may be required to make a judgment call in the light of the action taken by the give-way vessel: rule 17(a)(ii) and (3). The mere fact that there was a risk of collision through convergence, is not determinative of whether the crossing rules apply. Put colloquially (in Ms Selvaratnam’s words), it takes two to cross.”
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
“I desire to say as has already been said over and over again here and in the Admiralty Court, that it is of extreme importance strictly to maintain the enforcement of [the crossing rules]. These two rules are a bright light to navigators; and I suppose day by day and hour by hour they operate to prevent collisions at sea. It appears to me of the highest importance to enforce them and enforce them strictly.”
“Rule 2 - Responsibility (a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. (b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger. … Rule 7 - Risk of Collision (a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist. (b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects. (c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information. (d) In determining if risk of collision exists the following considerations shall be among those taken into account: (i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; (ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range. … Rule 8 – Action to avoid collision (a) Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship. (b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided. … Rule 9 - Narrow Channels (a) A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable. … (d) A vessel shall not cross a narrow channel or fairway if such crossing impedes the passage of a vessel which can safely navigate only within such channel or fairway. The latter vessel may use the sound signal prescribed in rule 34(d) if in doubt as to the intention of the crossing vessel. … Rule 15 - Crossing Situation When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel. Rule 16 - Action by Give-way Vessel Every vessel which is directed to keep out of the way of another vessel shall so far as possible, take early and substantial action to keep well clear. Rule 17 - Action by Stand-on Vessel (a)(i) Where one of two vessels is to keep out of the way the other shall keep her course and speed. (ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules. (b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision. (c) A power-driven vessel which takes action in a crossing situation in accordance with subparagraph (a)(ii) of this Rule Page 20 to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side. (d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.”
“On these facts, I think it is perfectly plain that at some time these vessels came under the duties of ships crossing on courses involving risk of collision. Witnesses from each of the ships said that over a substantial period the bearing of the other ship remained constant. That, as is well known, is an infallible warning to mariners that the vessels were approaching with risk of collision.”
“When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.”
“So to hold [that such a change of speed or course by the standon vessel relieves the give-way vessel of her obligation to keep clear] would be to shift the duty of keeping out of the way from the giving-way vessel to the other, and would make article 21 [now rule 17] read as if the latter vessel were bound to keep her course and speed ‘so as to keep out of the way of the givingway vessel’, instead of ‘so as to enable the giving-way vessel Page 25 to keep out of her way’, which is, in my opinion, the true construction.”
“The decisions of this Court have thrown a light on that rule which perhaps one would not derive from the rule if one did not know anything about the decisions, because they have said that when the rule talks about keeping course and speed it means the course you were going to take for the object you had in view - not the course and speed you had at any particular moment. So you keep your speed although you stop, and you keep your course although you alter it 16 points. You keep your course if you are going round the bend of a river although you are altering it to follow the bend. You keep your speed although you stop to pick up a pilot. It follows that if you are crossing the tide your course is to keep diverging: and, therefore, according to the authorities, you are keeping your course although you are continually porting.”
“(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. (b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.”
“In my opinion, it is not aimed at authorising departure from the regulations, and I doubt if it is more than a solemn warning that compliance therewith does not terminate the ever present duty of using reasonable skill and care.”
“To justify a departure from the regulations which is alleged to have been necessary to avoid immediate danger, there must be clear proof that an adherence to them would have caused such danger, and the action taken must be in accordance with the requirements of good seamanship.”
“… wherever possible articles 19 and 21 ought to be applied and strictly enforced because they tend to secure safe navigation.”
“As the Crossing Rule applies to Vessels in sight of one another the importance of maintaining a good visual lookout is vital. While the risk of collision can be determined by radar, the repeated taking of visual bearings of an approaching vessel not only allows an assessment of whether that vessel remains on a steady bearing to be made, but also enables changes in aspect to be noted. … We agree with the[ir] Justices perception that radar on its own (ie, without using ARPA etc) may assist by providing the range as well as bearing of the observed vessel. However, the effective use of Radar to assist in collision avoidance depends on the operator understanding the different modes of operation of the radar (true motion/relative motion/ground stabilised/sea stabilised) and their effect on assessing relative/true motion of raw radar data. The raw radar will allow an assessment of closest point of approach including indicating whether the observed vessel is on a steady bearing. However, raw radar may not indicate changes in aspect/course or speed unless they are large enough to significantly alter the observed relative motion between the two vessels. This means that the regular visual observation of the approaching vessel is key.”
“… rule 15 applies when vessels are crossing so to involve risk of collision. Rule 7(d)(i) provides that risk of collision shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change. The agreed schedule shows that the bearing of ALEXANDRA I from EVER SMART did not appreciably change …”
“... regular visual and radar observations will confirm whether the observed vessel is on a steady bearing, which is the critical factor in assessing whether a risk of collision exists.”
“It appears to their Lordships on the evidence that when first sighted the Ada had the other vessel on her starboard bow, and therefore, if they were crossing vessels, it was her duty to keep out of the way of the Sappho. Now their Lordships think that they were crossing vessels within the meaning of the rule, because both were of necessity directing their courses to one point. That point would be the point of intersection of the two courses if prolonged.”
“If at any time two vessels, not end on, are seen, keeping the courses to be expected with regard to them respectively, to be likely to arrive at the same point at or nearly at the same moment, they are vessels crossing so as to involve a risk of collision, but they are not so crossing if the course which is reasonably to be attributed to either vessel would keep her clear of the other. The question, therefore, always turns on the reasonable inference to be drawn as to a vessel’s future course from her position at a particular moment, and this greatly depends on the nature of the locality where she is at the moment.”
“They also illustrate the importance attached to the necessity of attributing to the give-way ship actual or imputed knowledge of the situation. In the present case there was no obvious or ordinary manoeuvre which would give knowledge to the Rambler, so that quite apart from the difficulty inherent in a curved course, the case could not be held to be a case of crossing vessels because the necessary knowledge of the situation could not be ascribed to the Rambler. In any event, the Rambler took the correct action at the proper time.”
“Articles 19 and 21 presuppose as their essential conditions that the vessels must be crossing vessels and crossing so as to involve a risk of collision. It is only when these conditions are present that the articles apply, ... But the problem does not depend merely on physical circumstances. As the purpose or articles 19 and 21 is to impose a duty on the give-way ship to keep clear, that ship must be in a position to appreciate what the situation is and to know what the other ship is doing, and whether it is on a course at all or, if so, on what course.”
“The ordinary idea of a course is a sufficiently constant direction of a ship on the same line or heading. This will enable a navigator when he sees the other vessel to know if she is on a crossing course. He can often only become aware of that if he can keep the other vessel under observation for sufficient time to ascertain if she is or is not changing her heading. In the open sea this is the usual procedure.”
“If, however, it had been possible to watch her movement for some time, the manoeuvre would not have shown that she was keeping a steady course: her heading would have been altering to port. A curved or curving course, constantly changing under a port helm would not have enabled the give-way vessel to decide how to act for her. Accordingly, of the two conditions that she should be on a course and that the give-way vessel should be able to ascertain that, neither was fulfilled. It may be that in crowded or congested areas, it may not always be possible to ascertain whether the necessary conditions exist. In such cases articles 19 and 21 cannot apply. But wherever possible articles 19 and 21 ought to be applied and strictly enforced because they tend to secure safe navigation.”
“That case establishes, in my judgment, that, for the duties under the crossing rules to apply, so as to impose on a vessel the duty to give way, both vessels must be keeping a steady course involving risk of collision and the give-way vessel should be able to ascertain that the other vessel is on such a course.”
“A ship is on a steady course, not only when her heading does not change, but whenever her future positions are certainly ascertainable from her present position and movements. A steady course may thus involve many changes of heading; it is enough if these can with accuracy be foretold. If they can, so that at any given time in the future her position can be ascertained, she is on a course, and if that course crosses the course of another vessel, who holds her on her starboard hand, the latter must keep out of her way.”
“The mere fact that there was a risk of collision through convergence is not determinative of whether the crossing rules apply. Put colloquially (in Ms Selvaratnam’s words), it takes two to cross.”
“It is our opinion there is no requirement for either vessel, to be on a ‘steady course’ to engage the crossing rules - it is enough for a risk of collision to exist.”
“As I understand the principles which apply in narrow channels, it has been laid down for many, many years that, although the crossing rule does from time to time have to be applied in narrow channels (when, for instance, a vessel which is crossing the channel has to act in relation to a vessel which is proceeding up or down the channel), nevertheless, when vessels are approaching each other, navigating respectively up and down the channel, it is article 25 of the Collision Regulations [then the narrow channel rule] which applies and applies exclusively. There is no room in such a situation for applying the provisions of the crossing rule at the same time as the provisions of the narrow channel rule, because the requirements under the rules are different.”
“In my view, where one ship is proceeding along a narrow channel in one direction, and another ship is proceeding along the same channel in the other direction, even though their courses are crossing so to involve risk of collision, the narrow channel rule governs the case, and not the crossing rules; The Kaiser Wilhelm der Grosse[1907] P 259 , The Heranger [1938] 62 Lloyd Rep 204;[1939] AC 94 , The Empire Brent 81 Lloyd Rep 306. If one of the ships is not proceeding along the channel at all, but crossing more or less directly from one side of it to the other, then the crossing rules may apply; see the observations of Mr Justice Willmer in the last of the three cases referred to above at p 312, left hand column. They may also apply where there is a junction between one channel and another, and the two ships concerned are in the first place proceedings along different channels so as to meet at such junction; The Leverington (1886) 11 PD 117.”
“LORD HERSCHELL, LC It has been argued on behalf of the appellants that the Rapid was in a narrow channel, and that according to article 21 [the narrow channel rule] it was her duty to keep on the starboard side of the channel. This is no doubt a narrow channel, and one to which that article applies. But then it must be remembered that the Leverington had also to keep on her starboard side of the channel, and was in fact on that side. Now the Rapid undoubtedly ported before the collision, and we are advised that, but for this porting, the Rapid and the Leverington might both have continued on their courses with safety … We are further of opinion that article 16 [the crossing rule] is applicable to the present case. Though these are narrow channels, still the general rules of navigation apply, so far as practicable in such places, no other special rules being provided, as is the case in some rivers. That being so, and these vessels being crossing ships, it was the duty of the Leverington, which had the Rapid on her starboard side, to keep out of the way of the latter. The manoeuvre which she executed of keeping her course and going on faster was a compliance with that rule, and no collision would have occurred had the Rapid obeyed article 22 and kept her course. Therefore the Rapid was alone to blame for the collision … LORD ESHER, MR These two ships were in a narrow channel, so that article 21 was applicable. The question arises whether article 16 was not also applicable at a particular point in these transactions. That rule must clearly apply in a narrow channel if there are no special rules applicable to it. Instances might easily be given where a smaller river joins a larger, as the Medway joins the Thames, where vessels would be constantly crossing, and where the crossing rule would apply. It is well that we should clearly lay this down, so that in the future when vessels are at the point which was the place of the present collision, and at similar places, there may be no doubt as to their respective duties. Here the Leverington was bound to keep out of the way of the Rapid, and the Rapid to keep her course; the latter ported and broke article 22, while the Leverington was doing what was right in order to keep out of the way of the other ship. Therefore the Rapid is alone to blame for the collision. FRY, LJ I am of the same opinion. I think that article 16 applies in narrow channels, and that it would be unwise and incorrect to hold that it does not apply in such places.”
“Crossing in narrow channels and traffic lanes Power-driven vessels in a crossing situation in a narrow channel or traffic lane must normally comply with rule 15 but all vessels are required to avoid crossing a narrow channel if such crossing impedes the passage of a vessel which can safely navigate only within the channel (rule 9(d)) and a power-driven vessel of less than 20 metres in length must not impede the safe passage of a power-driven vessel following a traffic lane (rule 10(j)). Although vessels proceeding in opposite directions in a bending narrow channel may come into a crossing situation rules 15 and 17 do not apply. Each vessel must comply with rule 9(a) and keep as near to the outer limit which lies on her starboard side as is safe and practicable.”
“In the circumstances of this case, where vessel A, proceeding down river outside the channel, intending to enter it, sees an up-coming vessel B approaching in the next reach, bearing on her starboard side, on a main-channel course which, if followed into the reach in which A is navigating, will or should enable the two vessels to pass safely port to port by reason of the fact that B should keep to her own starboard side of the channel and A will navigate into and keep to her own starboard side, the crossing rule does not, in my view, apply.”
“That seems good sense to me”