First collision liability appeal to go to the Supreme Court - Simon Rainey QC and Nigel Jacobs QC

Fri, 05 April, 2019

On 4th April 2019 the Supreme Court granted permission to appeal against the decision of the Court of Appeal in Evergreen Marine UK Ltd v Nautical Challenge Ltd [2018] EWCA Civ 2173 in relation to the collision between the large container vessel “EVER SMART” and the VLCC “ALEXANDRA 1” just outside the dredged entrance/exit channel to the port of Jebel Ali in the United Arab Emirates in 2015.

Simon Rainey QC was brought in, following the decision of the Court of Appeal, to seek permission to appeal and will represent Evergreen on the appeal, leading Nigel Jacobs QC and instructed by Ince Gordon Dadds - Faz Peermohamed, Sophie Henniker-Major, Lida Logotheti, James Drummond and Patrick Ryan. 

This will be the first collision liability case to go to Supreme Court, and the first such case to reach the final appellate court since 1976.

The Supreme Court will consider the important issue of the relationship between the narrow channel rule (Rule 9) and the crossing rules (Rules 15 -17) of the International Regulations for Preventing Collisions at Sea 1972.

The interaction of these rules occurs on numerous occasions on a daily basis throughout the world. The crossing rules not only apply to a situation which occurs continuously in navigation but to one where the need for clear and strict guidance as to what each vessel is to do when a crossing situation arises is of particular importance. In one of the leading cases on the crossing rules, the Court stressed that the crossing rules should not lightly be held to be inapplicable but “ought to be applied and strictly enforced because they tend to secure safe navigation” (per Lord Wright in The Alcoa Rambler [1949] AC 236 (PC) at 250).

The Court will determine the correctness of the approach of the Court of Appeal (and of the Admiralty Judge) in (a) treating Rules 9 and 15 as effectively mutually exclusive of each other in the common situation of one vessel navigating in a narrow channel and another vessel approaching the same channel and intending to enter it so that the crossing rule was inapplicable in such a situation and also (b) in treating Rule 15 and the crossing rule as a general principle as only ever capable of applying where the putative give-way vessel is on a “steady course”.

Simon Rainey QC

Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar noted for his intellect and advocacy. He has extensive experience of international arbitration, regularly appearing as advocate under all of the main international arbitral rules (LCIA; SIAC, UNCITRAL; ICC, Swiss Rules etc) and also sitting as arbitrator.

Current examples of his work as counsel are in arbitration before the Permanent Court of Arbitration in a US 13billion gas supply dispute; under Nigerian Law and seat in relation to an offshore oilfield redetermination dispute between oil majors, under UNCITRAL Rules in a mining supply take or pay dispute involving one of the world’s leading mine conglomerates; an ICC arbitration concerning a new mine development in Russia and an ICC Dubai seat arbitration involving specialist offshore vessels and in associated s67 and s68 LCIA challenges in the A v B [2017] EWHC 3417 (Comm) litigation in the4 Commercial Court. Recent arbitral appointments include an ICC Paris seat arbitration concerning a power station failure, a French law and seat arbitration relating to an oil rig drilling contract, an offshore construction contract claim under SIAC Rules and a long-term ore supply contract claim under Swiss Rules.

He is highly ranked by Chambers and Partners and Legal 500 as a first division international arbitration specialist (“Highly regarded for his expertise in handling high-profile international arbitrations in connection with complex oil and gas, banking and finance and trade issues. He is well known for his prowess in advising and representing clients in disputes in countries as far flung as Turkey, Russia, the USA, China and India” 2018; “Incredibly good, with a particular skill in reducing the complicated to the elegantly simple, which when you're trying to present a case to a tribunal or court is one of the more valuable things you need to have” 2018; “Clearly now one of the top commercial silks and a delight to work with.” 2018; “A mixture of brilliance and brevity, his written submissions are like poetry” 2018), He was nominated for “International Arbitration Silk of the Year 2017” by Legal 500 and has also been awarded “Shipping & Commodities Silk of the Year” 2017 by both Chambers & Partners and Legal 500.

He sits as a deputy High Court Judge in the Commercial Court and is Honorary Professor of Law, Business and Economics, University of Swansea.

To view Simon's full website profile, please click here.

Nigel Jacobs QC

Nigel Jacobs QC is a specialist in shipping, insurance, commodity and commercial disputes.  His work covers the full range of such disputes from casualty work (collisions, salvage, unsafe port and limitation) through to marine insurance, joint venture, guarantee, and letter of credit, as well as "traditional" charterparty and contractual claims.   His appears both in the High Court and in arbitration.  He is regularly instructed in (worldwide) freezing injunction, anti-suit injunctions and jurisdictional disputes.  His recent arbitrations include the termination of a substantial Middle Eastern joint venture and a successful challenge to the conclusion of a long-term charterparty.   He is currently involved in an unsafe port case (South America) and a number of other casualties. He is also increasingly appointed as an arbitrator. 

Over the past two years Nigel has been heavily committed in the substantial "ATLANTIK CONFIDENCE" litigation. In a 29 day trial he led the team (on behalf of cargo interests) which successfully challenged the shipowner's right to limit under the Limitation Convention 1996 on the grounds that the vessel was the subject-matter of a deliberate casualty.   This was the first occasion in which the right to limit had been successfully challenged in this jurisdiction.  

Consistently ranked as a 'Leading Silk' in Chambers UK, Chambers Global and The Legal 500 directories where he has been praised as ..."Very impressive. He has a really good grasp on technical details and he is very thorough." (Chambers UK 2019)

To view Nigel's full website profile, please click here.