With Eyes Wide Open Into the Jaws of Death: The Scope and Operation of the Necessity Defence to Collision Liability

Abstract

To secure the safety of navigation the Convention on the International Regulations for Preventing Collisions at Sea, 1972[1] require crossing vessels[2] to assume reciprocal obligations, and makes non-conforming vessels responsible for the costs of non-conformity. Rule 17 provides regulatory sanction for what would otherwise constitute negligence[3] by authorising a stand-on vessel’s (SOV) departure from its obligations if and only if acting contrary to the rules was a necessary and proportionate response to an immediate risk of collision. Exceptions represent a challenge to the aim of formulating rigorous regulations and promulgating uniform constructions providing predictable, practicable and justified rules for secure navigation. Admiralty has responded pragmatically to exceptional cases as they have arisen, taking a cautious case by case approach to ensure that the claim of justified departure is examined for whether it satisfies the norm of the secure navigation, and the exception is not used expediently to evade responsibility. The FMG Hong Kong Shipping Limited, the Demise Charterers of FMG Sydney v The Owners of MSC Apollo[4] involved a complex interplay of actions, reactions, assumptions, miscommunications, and misdirected and misstated intentions amongst multiple vessels in an inherently uncertain and confused navigational context. It illustrates Admiralty’s pragmatic approach to the development and extension of the principles of necessary departure. First the court prioritises adherence to the rules as a means of avoiding collision, and only then examines and determines whether and when an act contrary to the rules of navigation may be vindicated.

[1] Convention on the International Regulations for Preventing Collisions at Sea (COLREGs) 1972 1050 UNTS 16 (entered into force 15 July 1977).

[2] Crossing vessels are defined at COLREGs r 15. They are ‘vessels travelling upon converging courses so as to involve a risk of collision’ (The Olympic v HMS Hawke CA 1913 214, 218) (The Olympic).

[3] See The Birkenhead 3 W. Rob 75; The James Watt 2 W. Rob. 270; The Vivid 7 Not. of Cas. 127; The Ceto 14 App. Cas. 670, 673 (per Lord Halsbury), 689 (Lord Bramwell).

[4] FMG Hong Kong Shipping Limited, The Demise Charterers of FMG Sydney v The Owners of MSC Apollo [2023] EWHC 328 (The Sydney).