SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE BY HARRY HIRST1
On 22 March 2008, the Ukrainian flagged oil rig supply vessel
NEFTEGAZ 67 (“N67”) collided with the Chinese flagged
panamax-sized bulk carrier YAO HAI (“YH”) in the western
approaches to Hong Kong harbour in the vicinity of the
Brothers Islands between North Lantau Island to the south
and the mainland of Hong Kong to the north. The damages
sustained on collision caused the N67 to sink rapidly with the
tragic loss of the lives of 18 of her crew.
The cause of the collision was immediately investigated by the
Hong Kong Marine Police and Captain Kulemesin of the N67
was subsequently charged with endangering the safety of the
lives of others at sea contrary to section 72 of the Shipping &
Port Control Ordinance which provides –
“Any person who by any unlawful act, or in any manner
whatsoever without reasonable excuse, endangers or
causes to be endangered the safety of any person
conveyed in or being in or upon any vessel or in the sea
commits an offence and is liable –
The international conference that drafted the International
Regulations for Preventing Collisions at Sea, 1972 (the
“COLREGS”) rejected a proposal to include a definition of
“narrow channel”. Mariners must therefore decide for
themselves whether or not a particular stretch of water is a
narrow channel or fairway where Rule 9 applies; and as the US
National Transportation Safety Board has observed, it does
“operators little good to learn months after an accident that a
court has ruled that a particular portion of waterway, under a
particular set of circumstances was or was not a ‘narrow
channel’ under the rules, and that the narrow channel rule
should or should not have been applied...”. Professor Craig H.
Allen has repeatedly argued that mariners deserve better2; and
there is no better example of this than the recent criminal
prosecution in Hong Kong of Captain Yurii Kulemesin.
That criminal prosecution culminated on 22 February this year
with the handing down of the judgment of the Hong Kong
Court of Final Appeal (“CFA”)3. In it the CFA finally dismissed
Captain Kulemesin’s appeal against conviction for the offence
of endangering the safety of the lives of his crew at sea. He had
(a) on conviction on indictment to a fine of $200000 and been charged and prosecuted for this offence by the Hong
to imprisonment for 4 years...”
Kong Government (“HKSAR”) following the collision in Hong
Kong waters between the NEFTEGAZ-67 (“N67”)4, under his
The “unlawful act” relied upon was a breach of the COLREGS;
command, and the YAO HAI (“YH”)5 under the command of her
in particular, breaches of Rules 5, 8, and 9. Captain Kulemesin
Chinese Master and with two local Hong Kong Pilots on board.
was subsequently arrested on 27 March 2008, and later
Captain Kulemesin was convicted because of his unreasonable
released on bail pending trial.
belief that a buoyed channel in the western approaches to Hong
Kong through which the N67 was navigating at the time was
The trial took place in 2009, and the decision of Court of First
not a narrow channel for the purposes of Rule 9 of the
Instance was handed down in January 2010. Captain Kulemesin COLREGS and his consequent failure to keep to the starboard
was found guilty of the offence charged, and sentenced to 38
side thereof. As Lord Clarke of Stone-cum-Ebony NPJ observed
months imprisonment. He was later released on bail pending an in giving the leading judgment of the CFA:
appeal after spending 45 days in prison.
“207. ...the critical case established against him was his
His appeal was heard in 2011. The Court of Appeal upheld
unreasonable failure to appreciate that the CP channel
Captain Kulemesin’s conviction but reduced his sentence to 18
was a narrow channel, his insistence on maintaining his
months imprisonment. He immediately sought and was granted
course until the last and his consequent failure to take
leave to appeal to the Court of Final Appeal (“CFA”).
starboard helm action at any stage. I should add that the
Judge held that [he] was also in breach of Rules 7 [sic 5]
The CFA gave judgment in January of this year upholding
and 8 of the COLREGS... These faults were all bound up
Captain Kulemesin’s conviction. This paper examines that
with his essential fault, which was that he failed to alter
judgment and the case against Captain Kulemesin on the
course to starboard at any stage pursuant to his duty to
narrow channel. It illustrates how the application of Rule 9 can
keep to the starboard side of the channel under Rule 9.”
be a recipe for injustice, which in the case of Captain Kulemesin,
2 “Taking Narrow Channel Collision Prevention Seriously to More Effectively
was both grave and substantial.
Manage Marine Transportation System Risk” – Journal of Maritime Law &
Commerce, Vol 41 No.1 January, 2010
3 FACC Nos. 6&7 of 2012
1 Partner, Master Mariner, Ince & Co Hong Kong. Ince & Co represented Captain Kulemesin in the Hong Kong criminal proceedings and the writer had access to the evidence and materials presented during the various court hearings
4 An offshore supply tug with a gross tonnage of less than 3000 (and therefore
pilot exempt) and a draught of 5 metres
5 A laden panamax-sized bulk carrier with a draught of 12 metres
02
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
This paper examines the case against Captain Kulemesin on the
narrow channel and the application of Rule 9.
The Issue
As Lord Clarke noted –
“150. ...the most important issue in the appeal is whether
the Judge was correct to hold that the buoyed channel
was a narrow channel within the meaning of Rule 9.”
In considering this issue he first reviewed those materials which
are usually available to mariners and upon which mariners must
rely when determining whether or not a particular channel is a
narrow channel within the meaning of Rule 9. He then
considered each of the factors upon which the Trial Judge had
based her finding that the buoyed channel was such a narrow
channel. Thereafter he discussed the test applied by the Trial
Judge and the relevant legal authorities and the new legal test
suggested by Captain Kulemesin; and then reviewed The
Koningin Juliana case6. Finally, he considered the
reasonableness of Captain Kulemesin’s beliefs, noting that in his
opinion the Trial Judge had arrived at the correct conclusions.
In examining the case against Captain Kulemesin the same
approach will be adopted so that the analysis will focus upon –
1.
Available Materials;
2.
Relevant Factors;
3.
Legal Test;
4.
Reasonable Belief.
1. Available Materials
Lord Clarke observed that the question whether or not a
channel is a narrow channel within the meaning of Rule 9 is one
that masters and pilots have to answer “in a myriad of different
circumstances all round the world day in and day out.”7. He
noted that in doing so they have to rely upon –
1.
their experience and expertise;
2.
the relevant charts;
3.
the relevant Admiralty Pilot or other sailing directions; and
4.
any relevant notices to mariners or local regulations or
by-laws.
1. Experience & Expertise
Captain Kulemesin was a qualified Master Mariner with 5 years
experience in command of vessels like the N67. He was
experienced in navigating in these waters between the
mainland of Hong Kong to the north and Lantau Island to the
south, known locally as Chi Shui-men, having passed through
them some 20 to 30 times before. His belief that the buoyed
channel was not a narrow channel within the meaning of Rule 9
was based in large part upon that experience which the Trial
Judge summarised in her judgment as follows –
“419. [Captain Kulemesin] never considered the buoyed
channel a narrow channel where Rule 9 applies. He did
not think it is a narrow channel because all vessels other
than deep draught vessels can safely proceed outside the
channel. He knew that deep draught vessels drawing over
16 metres would invariably use the route between the
buoys when transiting in either direction. [He] noticed with
personal experience how vessels navigate through the
buoyed channel.
420. There was nothing in any publication saying that it
was a narrow channel. He had never received or heard
any corrective instructions from MARDEP to any vessel in
this channel to keep to the starboard side of the channel
or to alter course to starboard. He had on occasions been
told by MARDEP to alter course to port to leave the
channel by going north of the buoys when vessels
restricted by their draught were using the channel.
421. Otherwise apart from the deep draught vessel
always using the buoyed channel, he had seen vessels
both going east and west going outside of the buoys….”8
These observations were consistent with the evidence given by
the Vessel Traffic Control (“VTC”) operators of the Hong Kong
Marine Department (“MARDEP”)9; and with the evidence of
Captain Li of MARDEP, one of the three local expert witnesses
called by the Prosecution. Captain Li is a Senior Surveyor at
MARDEP with responsibility for drafting marine legislation and
policy having previously been a marine accident investigator
(from May 2002 to May 2006) with, and then head (from May
2006 to January 2008) of the Marine Accident Investigation
Section (“MAIS”) at MARDEP.10 In his report he said the buoys
marked the deep water route and in describing the waters
where the collision occurred, he said –
“2. The water north of the Brothers Islands is a navigable
area to transiting vessels including mainland trade coastal
vessels, high speed crafts, large ocean going ships and
other kinds of local vessel. Deep draft large ocean going
ships (vessel drawing a draft of more than 16 metres)
normally use the southern part of the navigable water
due to the available deeper water.
3. Lateral buoys are marked in the area to assist the
identification of the deep water route. This guided route is
not a statutory fairway and the area can be used for other
vessels for open navigation. When transiting vessels
encounter each other and involve in risk of collision in the
area, normal Collision Regulations will apply.”
That was also his evidence during examination at the trial where
he made it clear that he did not think the buoyed channel was a
narrow channel even for the YH as she could safely navigate
outside of it in the navigable waters to the north. That was also
eventually conceded by the Prosecution (albeit in equivocal
terms) to be the official view of the Director of Marine/MARDEP.
Given the stated functions of MARDEP and the powers of its
senior officers to (effectively) prosecute the master of a vessel
for a breach of the COLREGS11 one might assume that if Rule 9
did apply the VTC would have warned – and prosecuted –
6 [1973] 2 Lloyds Rep 308; [1974] 2 Lloyds Rep 353 (CA)
8 Quoted by Lord Clarke at CFA 219
7 Paragraph 151 of the CFA decision: CFA 151
9 MARDEP is the Hong Kong Government department with regulatory authority
over the waters of Hong Kong
10 The MAIS investigates serious marine casualties in Hong Kong waters and
reports its findings to the Hong Kong Government, the Vessels Flag States, and to
the International Maritime Organisation
11 Shipping and Port Control Ordinance, S.77
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
mariners who failed to keep to the starboard side of the buoyed
channel. The fact that the VTC had previously ordered the N67
when east-bound to turn to port to leave the buoyed channel
when it was being used by an approaching deep draught vessel
might also lead one to assume that Rule 9 did not apply, as
otherwise the N67 would have been ordered to turn to
starboard so as to keep as close to the outer limit of the buoyed
channel which lay on her starboard side as was safe and
practicable. It was also the evidence of the VTC operators that
they would clear the buoyed channel of all other traffic when a
deep draught vessel needed to use it and was constrained by its
draught to doing so. That the VTC effectively operate a
one-way traffic system within the buoyed channel when deep
draught vessels are using it might again lead one to assume that
Rule 9 did not apply. These would appear to be reasonable
assumptions if the object and underlying rationale of the rule is
as stated by Lord Clarke12. If Rule 9 applies in the buoyed
channel at all, it should apply at all times and to all vessels when
they are navigating within it. If the rule cannot safely be applied
when particular vessels are navigating in the buoyed channel so
that VTC has to order other vessels also navigating in the
buoyed channel to take avoiding action which is in direct
contravention of the rule, then it is difficult to see how the rule
can be said to apply otherwise; that is, at some times but not at
other times.
2. Relevant Charts
Lord Clarke considered British Admiralty chart BA 412213 to be
one of the principle aids available for determining whether the
buoyed channel was a narrow channel where Rule 9 applied14.
He noted that the buoys are IALA buoys which “are generally
used for well-defined channels and denote the lateral limits of
the channel”15; and how vessels proceeding with the direction
of buoyage would leave the green buoys to starboard and the
red buoys to port. He also noted how the buoys were
positioned; and that the buoyed channel was physically narrow
with a width of between 3.1 cables at its widest and 2.2 cables
at its narrowest16.
Lateral marks are indeed generally used for well-defined
channels but that is not their only use. It is clear from the history
surrounding these buoys17 that they mark the deep water route
through Chi Shui-men; and how otherwise is a deep water
route to be marked (buoyed) under the IALA Buoyage System
A if not with lateral marks? Clearly, it would have been
preferable for these lateral marks to have all been coloured
12 CFA 167 discussed below under 2(4); see also CFA 221: “… the narrow
channel rule applies to all ships…”
13 See attached extract showing also the tracks of the two vessels leading up
to the collision, and which is the same as that which Lord Clarke annexed to his
judgment as Annex 3
14 CFA 153
15 CFA 155
16 CFA 157
17 With the introduction of panamax-sized bulk carriers the China Light &
Power Company decided to lay some buoys to mark the deep water route
through Chi Shui-men so as to aid the navigation of such vessels when laden with
coal and at deep draughts in their passage to the terminal at the Castle Peak
power station. This is why the buoys today are still numbered “CP1”, “CP2” etc.,
the letters “CP” denoting “Castle Peak”, and why Lord Clarke referred to this
buoyed channel in his judgment as the CP channel. The buoys were privately
maintained initially by the China Light & Power Company but subsequently the
Hong Kong Marine Department (“MARDEP”) took over responsibility for the
up-keep of the buoys; and when the IALA Buoyage System A was adopted in
Hong Kong the original buoys were replaced with lighted red and green lateral
marks. Over the years the buoys have been re-positioned on occasion but their
purpose has not changed: they still mark the deep water route through Chi
Shui-men.
yellow and for there to have been a notation on the chart
explaining their “special” purpose (to mark the deep water
route), but the purpose of the buoys is otherwise clearly
described in the relevant Admiralty Pilot18 –
“Thence: to the E entrance… to the buoyed channel
through Chi Shui-men... Light Buoys CP1 (starboard hand)
and CP2 (port hand) are moored at the entrance and
further light buoys (lateral) mark the deep-water route”
Two lines of red and green lateral marks will always create a
channel on the water with the buoys denoting the lateral limits
of that buoyed channel but it does not follow that the buoys
therefore mark what is otherwise a well-defined channel. A
channel is described in the Mariner’s Handbook as –
“A comparatively deep waterway, natural or dredged,
through a river, harbour, strait, etc, or a navigable route
through shoals...”
A well-defined channel therefore, is a geographical or
bathymetrical feature occurring naturally or as a result of
dredging. The waters between the mainland of Hong Kong to
the north and Lantau Island to south are such a geographical
feature; and the Trial Judge had no difficulty in recognising and
describing these waters (Chi Shui-men) as a “channel”19. Can
the buoys really be said to denote the lateral limits of this wider,
geographical channel? Clearly what they do denote are the
lateral limits of the route through Chi Shui-men for deep
draught vessels as the Trial Judge recognised –
“226. The Chinese name Chi Shui-men describes a
“passage or channel” ...The location exists as an open
navigable passage [sic. channel] which provides a deep
water entrance to the port of Hong Kong. Within Chi
Shui-men is the Castle Peak buoyed channel...
227. The channel for vessels with deep draughts
comprises that part where the depths are defined by the
15 and 20 metre depth contours and are set out by buoys
CP1 to CP5...”
British Admiralty charts portray all channels and fairways that
have been established by the relevant competent authorities
using black or magenta pecked lines depending upon the type
of the channel or fairway. These symbols have been agreed by
the International Hydrographic Organisation20 and by the
International Maritime Organisation (“IMO”). There are no such
pecked lines joining these buoys which suggests the buoys do
not mark a channel or fairway, consistent with MARDEP’s view
and (presumably) the view which MARDEP (as the competent
authority for Hong Kong) intended for the chart to convey to
mariners.
3. Relevant Admiralty Pilot
Lord Clarke also considered the relevant Admiralty Pilot Book
to be another of the principle aids available to mariners for
determining whether the buoyed channel was a narrow channel
18 Admiralty Sailing Directions China Sea Pilot Volume 1. Earlier editions (e.g.
Fourth Edition 1978, Revised 1987) noted that this deep water route “is used by
deep draught bulk carriers carrying coal to Castle Peak Power Station.”
19 Paragraph 225-9 of the Trial Judge’s Reasons for Verdict: RV 225-9. At RV
333 she said the YH was “proceeding west bound along the Chi Shui-men
channel”
20 IHO website: www.iho.int/
03
04
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
where Rule 9 applied21. He noted that the Pilot Book22
described the deep water route as “a buoyed channel”23 and
commented –
“156. The Pilot Book describes the route through the
channel as a deep-water route because the depths of the
water in the vicinity are such that some vessels are so
constrained by their draught that they have to navigate
within the buoyed channel... The draught of the YH was
not such that she had to navigate in the channel but,
given her draught of just over 12 metres, it was readily
understandable that she would wish to do so. The Judge
found that the buoyed channel was generally used by
ocean going vessels and that local vessels use the area to
the north of the channel... It was common ground that
within the area to the north of the channel, outside the
limits of the deep-water route... vessels did not adhere to
the narrow channel rule.”
Some vessels are indeed so constrained by their draughts to
navigating within the buoyed channel and those are vessels
drawing more than 16 metres (as Captain Li noted in his
report24) and for whom the VTC clear the buoyed channel of
other traffic25. Vessels of lesser draughts however, are not so
constrained and can (and frequently do) navigate outside of the
buoyed channel26.
A “petition” letter adduced in evidence at the trial and signed by
96 out of the 101 Hong Kong pilots tacitly acknowledged this,
asserting only that pilots of bulk carriers with a draught “over
11 metres” would “customarily” navigate through the buoyed
channel27. During cross-examination on the wording of this
letter the current Chairman of the Hong Kong Pilots
Association (“HKPA”) confirmed that “customarily” meant
“normally” but not “always”; that Hong Kong pilots could chose
whatever routes they liked to navigate through these waters
subject to any constraints imposed by the vessel’s draught; and
that vessels constrained by their draught to navigating through
the buoyed channel would display the appropriate signal
prescribed in Rule 28 of the COLREGS28.
The Trial Judge admittedly found that the buoyed channel “is
generally used by ocean going vessels...”29 but clearly, not all
ocean going vessels are constrained to using it and large ocean
going vessels do use the waters to the north of the buoyed
channel30. The Trial Judge found that the YH could have safely
navigated to the north of the CP1 buoy31; and Lord Clarke was
aware that the YH did not have to navigate in the buoyed
channel32. The Trial Judge also noted that the buoyed channel –
21 CFA 153
22 See 1(2) above
23 CFA 155
24 See 1(1) above
25 See 1(1) above
26 Like (for example) the KOTA HADIAH which navigated to the north of the
buoyed channel on a draught of 8 meters: see Pilotage Board of Investigation
Report No. TMMP530/2002
27 CFA 169
28 Trial Transcript
“235. ...is used generally as a transit route for vessels
entering and leaving Hong Kong. Local traffic and coastal
vessels use the north of the buoyed channel...”
This suggests the buoyed channel is more akin to a “fairway”33
than a channel as a fairway is described in The Mariners
Handbook as –
“The main navigable channel, often buoyed, in a river, or
running through or into a harbour.”
In light of this it is difficult to see how Lord Clarke could agree
with the Trial Judge and find that “it was readily
understandable” – and therefore also to Captain Kulemesin –
that the YH, “given her draught of just over 12 metres”, would
wish to navigate in the buoyed channel. This is particularly so in
circumstances where it was night and all Captain Kulemesin
could see of the YH was her outline and her navigation lights;
the YH was not displaying any lights to indicate she was
constrained by her draught to navigating within the buoyed
channel; and her AIS was transmitting her draught as being only
6.5 metres.
4. Local Regulations etc.
When commenting that mariners must also be aware of
relevant notices to mariners and any local regulations or
byelaws Lord Clarke said that –
“151. ...Whether a particular area is a narrow channel
cannot depend upon the opinion of the harbour master,
the director of the port authority or the port authority
itself unless that opinion has been disseminated to
mariners. It follows that I would not accept the
submission….that the opinion of the Director of MARDEP
was of assistance, unless it was disseminated to those
navigating in Hong Kong waters.”
Lord Clarke does not say how the opinion of the Director of
Marine should be disseminated. Like proving a negative it is
somewhat unrealistic to expect a competent authority to notify
mariners what something is not; rather, the competent
authority can be expected to notify mariners what something is.
So if the buoyed channel is a narrow channel where Rule 9
applies, MARDEP could be expected to have notified mariners
of this. As Lord Clarke appears to believe, it could have done
this by putting a notice on the relevant chart and in the relevant
Admiralty Pilot, and/or by passing a local by-law or regulation to
this effect such as, for example, by making the buoyed channel a
principal fairway34. Whatever method might have been used, it
should also have resulted in the local and British Admiralty
cartographers using pecked lines to clearly delineate the limits
of the buoyed channel – the area where Rule 9 applies – on the
relevant chart35. MARDEP could also arrange for the VTC to
broadcast information to this effect on a regular basis to vessels
navigating in these waters; or for the VTC to notify, warn and
prosecute the masters of those vessels which it observed to be
navigating in the buoyed channel in a contrary manner.
MARDEP did none of these things which was not only
consistent with but presumably also intended to be indicative of
29 RV 236
30 See 1(1) above and supra FN26. The Trial Judge also acknowledge that the
MARDEP VTC operators would know best how seamen navigate in these waters:
Trial Transcript
33 The Prosecution believed the buoyed channel was a fairway when it opened
its case
31 RV 152; 157; 411
34 The Director of Marine, as head of MARDEP, has wide powers including the
power to designate fairways in Hong Kong waters
32 CFA 156 – quoted at 1(3) above
35 See 1(2) above
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
its view that the buoyed channel was not a narrow channel
where Rule 9 applied.36
Lord Clarke does not appear to have considered the other ways
in which the Director of Marine can and does disseminate
information to mariners and other port users in Hong Kong.
Pilotage is compulsory in Hong Kong for all vessels with a gross
tonnage of 3,000 or more37 so that most all ocean going vessels
will have a local pilot on board when navigating in Hong Kong
waters. The Director of Marine is the Pilotage Authority for
Hong Kong38 and all local pilots are examined and licensed by
MARDEP. The pilots are all members of the HKPA, and two
representatives from the HKPA sit on the Pilotage Advisory
Committee (“PAC”) which meets regularly to discuss all
pertinent matters. The PAC accordingly provides a forum for
the Director of Marine to disseminate information to the pilots
and other port user groups39; and MARDEP also issues circulars
and notices to pilots on behalf of the Director of Marine (as the
Pilotage Authority), as the Trial Judge tacitly acknowledged40. It
is difficult to understand therefore, how the pilots could have
been unaware of the opinion of the Director of Marine: that the
buoyed channel was not a narrow channel and Rule 9 did not
apply.
2. Relevant Factors
The factors on which the Trial Judge relied upon to find that the
buoyed channel was a narrow channel for the purposes of Rule
9, and which Lord Clarke considered in his judgment were –
1.
physical characteristics of the area
2.
the size and manoeuvring characteristics of the vessels
that use the channel
3.
the fact that a buoyed channel has been created out of a
wider area
4.
the object and underlying rationale of the rule
5.
the manner in which seamen in fact navigate within the
channel
6.
the expert evidence
1. Physical Characteristics of the area
Lord Clarke considered that the physical characteristics of the
area are often critical. He said –
“159. ...As I see it, they include both geographical and
depth constraints and buoys which are often positioned
having regard to such constraints. As the Judge put it at
her para 378, the boundaries can be marked by buoys,
land masses or sandbanks.”
Can the buoys however really be said to be a physical
36 That was the view of Captain Alan Loynd, one of two local experts who gave
evidence in Captain Kulemesin’s defence. Captain Loynd has considerable
experience of marine navigation in Hong Kong waters and has been a member at
various times, of working groups established by the Pilotage Advisory Committee
and by the Port Operations Committee for Hong Kong. He has also been an oral
examiner for local pilots sitting for their grade I and grade II licences; and a
nautical assessor on Marine Courts of Inquiry and disciplinary tribunals (Boards
of Investigation/Discipline) set up to investigate marine accidents involving a local
pilot in Hong Kong. The Trial Judge however, considered he was biased
37 Pilotage Ordinance, s.10; Sch.1.1
38 Pilotage Ordinance, s.3(3)
39 Pilotage Ordinance, s.4(3)
40 RV 362. The Pilotage Board of Investigation report of the KOTA HADIAH
collision (supra FN26) was circulated to all Hong Kong pilots
characteristic of the area? A channel is defined geographically
as being the water between two land masses or bathymetrically
as being the water between two shoals (sandbanks). The
physical boundaries of a channel therefore, are marked by the
edges of the land masses, or by the edges of the shoals. Buoys
may be positioned “having regard to such constraints” to mark
the limits for ocean going vessels of the safe navigable water
within such a channel, but unless the buoys are positioned near
the edges of the land masses or shoals, the buoys cannot be
said otherwise to mark the physical boundaries of the channel.
The buoys mark instead, the safe navigational boundaries for
ocean going vessels navigating within the channel; and those
boundaries will be marked on the chart using pecked lines41. If
the buoys are not positioned so as to mark the limits for ocean
going vessels of the safe navigable water within the channel
they cannot be said to mark the channel. Rather, they mark only
the boundaries of the buoyed “channel” so created, and unless
the competent authority intends for that buoyed channel to be
the main route to be used by all ocean going vessels passing
through the channel proper – for it to be a fairway42 when it will
also be marked on the chart using pecked lines – the buoys do
not otherwise mark or delineate the channel proper.
Lord Clarke quoted with approval43, the comments which the
Trial Judge made in her judgment –
“379. I accept the evidence of Captain Third that the
buoyed channel had the make up of a narrow channel. It is
a channel delineated by buoys which is physically narrow...
380. The bathymetric contours also define it as a narrow
channel. The deep water indicates the deep water route
designated for ocean going vessels. CP1 and CP2 are
placed on the 20 metres contour lines whilst the CP3, CP4
and CP5 are placed on the 15 metres line. They are
bathymetrically narrow and mark the bathymetrics of the
channel.
381. I accept Captain Third’s opinion that even though in
this case a vessel can still navigate outside of those buoys
as there is sufficient room to do so the channel can still be
considered a narrow channel...”
The Trial Judge also considered therefore, that the 20 metres
contour lines in way of the CP1 and CP2 buoys, and the 15
metres contour lines in way of the CP4 and CP5 buoys,
bathymetrically defined the channel; that as the distances
between the buoys at these two “gates” were narrow being
respectively 570 metres and 518 metres, the channel was a
narrow channel; and that the buoys marked this narrow channel.
A channel can be defined bathymetrically44 but in these waters
the 20 metres and the 15 metres contour lines cannot be said
to mark the sides of any clearly defined shoal or sandbank. A
clearly defined shoal or sandbank will be steep-sided and the
depths over it will be markedly shallower than those in the
waters around it45. In this case the water depths on either side
41 See 1(2) above
42 See 1(3) above
43 CFA 159
44 See 1(2) above
45 The Mariners Handbook describes a shoal as “An isolated (or group of) off
shore hazard(s) to surface navigation with substantially less clearance than the
surrounding area...”
05
06
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
of the 20 metres and 15 metres contour lines are not markedly
different; rather, the sea bed in way thereof gently shelves
towards the shores of the two land masses to the north and
south as the Trial Judge acknowledged46. There would not
appear to be any bathymetrically defined channel in these
waters therefore. The physical characteristics of the area define
only one channel and that is the geographically defined channel
between the two land masses to the north and south. The
buoys do not mark the boundaries of this channel; they mark
the deepest water in it – the deep water route.47
2.
The size and manoeuvring characteristics of the vessels
that use the channel
Lord Clarke considered this to be “a relevant consideration on
the facts here because it is to be expected that deep water
vessels will use the channel and proceed along the channel on
the basis that the starboard hand rule48 applies to vessels in
the channel.”49
It is not clear whether Lord Clarke intended the words “deep
water vessels” to mean deep draught vessels or ocean going
vessels but as he made these remarks when commenting on
the factors which the Trial Judge considered to be relevant, it
seems probable that he intended them to be a reference to
ocean going vessels.
It is difficult to understand why it is to be expected that ocean
going vessels other than those of deep draught50 will use the
buoyed channel. On the contrary, the evidence at trial indicated
they do not always do so; that their actual routes through these
waters depend upon their draughts and the prevailing traffic
conditions at the time.51
The Trial Judge considered that Captain Kulemesin should have
been in no doubt that the YH would be using the buoyed
channel because of the size of YH and because of the size of
the BERLIOZ (a large container ship) following behind the YH52.
She considered it to be “...a principle of good seamanship that
smaller, more manoeuvrable ships do not unnecessarily
embarrass larger ships.”53
The reference to size rather than draught suggests the Trial
Judge believed larger vessels would always want to use the
buoyed channel and that other smaller vessels should not be in
any doubt about this. But how large must a vessel be, to be of
the size that other mariners would be in no doubt that she
would want to use the buoyed channel? And why should the
presence of another large vessel astern make any difference to
the answer to that question? It is not a vessel’s size which
defines her as an ocean going – or deep water – vessel. If the
buoys do mark the main navigable route for ocean going vessels
through these waters then they must mark a fairway54 and not
a narrow channel, but there is no designated fairway in these
waters. There is also no general principle “of good seamanship
46 RV 244
47 As the Admiralty Pilot states – see 1(2) above
48 But see 1(1) above
that smaller, more manoeuvrable ships do not unnecessarily
embarrass larger ships” and no scope for implying one where
the COLREGS clearly specify the circumstances in which
smaller vessels are required not to impede the passage of larger
vessels55. Whilst it might be good manners otherwise, on the
part of smaller vessels to not “unnecessarily embarrass” the
navigation of larger vessels in particular circumstances, such
good manners are not the same as good seamanship56 and a
failure to exercise good manners is not a breach of the
COLREGS or any rule of good seamanship and is not therefore
an unlawful act as would justify a criminal prosecution.
3.
The fact that a buoyed channel had been created out of
a wider area
Lord Clarke said –
“161. As I read the Judge’s judgment, her essential
reasoning is that the whole point of creating a buoyed
channel out of a much wider area where the depths are
significantly less is to create a channel in which vessels will
be expected to pass safely port to port in accordance with
the narrow channel rule. This seems to me to make good
sense.”
He then reviewed the submissions made on behalf of Captain
Kulemesin as to why the buoys could not be said to mark a
narrow channel or a fairway and why Rule 9 could not be said to
apply in this case57, which he dismissed “essentially for the
reason given in para 161 above.”58
There are however, three fundamental flaws with the Trial
Judge’s “essential reasoning” as summarised by Lord Clarke.
Firstly, as noted above, the depths outside the buoys are not
“significantly less” so that the buoys cannot be said to mark a
channel which is otherwise bathymetrically defined59. Secondly,
the purpose of the buoys was not to create a channel through
which all vessels, or all ocean going vessels, would navigate, but
only to mark the deep water route60. Thirdly, port to port
passings can be achieved without the application of the narrow
channel rule (Rule 9). Rule 9 is clearly designed to achieve port
to port passings but then so to are the head-on rule (Rule 14)
and the crossing rule (Rule 15).
Lord Clarke continued –
“166. ...The whole point of the buoys was, and was
obviously, to designate a channel, as expressly stated in
the Pilot Book. In these circumstances it would make no
sense to conclude that a wider and less precise channel is
a narrow channel...”
The whole point of the buoys was to mark the deep water
route. They do not appear otherwise, to designate a natural or
otherwise well-defined channel at all61. They do however, create
a channel on the water and denote the lateral limits of that
buoyed channel; and that buoyed channel is within a wider and
very precise channel: the geographically defined channel which
49 CFA 160
55 See Rules 9 & 10
50 Drawing in excess of 16 metres and therefore constrained to navigating
through the buoyed channel
56 See Farwell’s “Rules of the Nautical Road” (8th Edition) at Chapter 4
57 CFA 162-164
51 See 1(3) above
58 CFA 165
52 RV 464
59 See 2(1) above
53 RV 56
60 See 1(2) above
54 See 1(3) above
61 See 1(2) above
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
is the waters between the two land masses to the north and
south and which the Trial Judge had no difficulty in recognising
as a channel62.
4. The object and underlying rationale of the rule
Lord Clarke agreed with the Trial Judge who considered that
the application of Rule 9 to vessels navigating in these waters
would avoid ambiguity and promote safety. She observed –
“125. Quite simply treating this stretch of water as a
roadstead or more figuratively as a road with an
imaginary pecked line and to avoid confusion as to which
rules apply, both vessels should keep to their own
starboard side so that any passing should be port to port
or red to red….”
She determined that Rule 9 applied therefore, not only to
vessels navigating within the buoyed channel but also to vessels
navigating outside of and approaching the buoyed channel.
Lord Clarke agreed –
“167. Safety requires a vessel approaching the channel so
as to proceed along it to navigate so that if the vessels
pass in the channel they will pass port to port. This will be
achieved if the narrow channel rules applies. If it does not,
there is considerable scope for confusion.”
The Trial Judge considered that the stretch of water from Ma
Wan to the buoyed channel should also be treated as a narrow
channel where Rule 9 applied.
As Lord Clarke noted, vessels navigating in the waters to the
north of the buoyed channel do not adhere to Rule 966; and an
earlier Pilotage Board of Investigation report made no
reference to Rule 9 applying in the waters between Ma Wan
and the buoyed channel67.
In treating these waters as a roadstead – that is, as if there is a
main navigable fairway (marked by imaginary pecked lines)
from Ma Wan to the buoyed channel (and on through the
buoyed channel to Urmston Road), the Trial Judge has come
close to exercising the executive powers of the Director of
Marine. If the HKSAR, acting through the Marine Policy Division
of MARDEP, had intended for there to be such a fairway in
these waters then presumably the Director of Marine would
have designated one68. MARDEP clearly looked into this as it
commissioned a report69 and decided against making a principal
fairway in these waters70. The Trial Judge recognised this in her
judgment where she commented –
“376. ...The fact that consideration was made that the
area be proposed as a fairway or narrow channel
indicates that those involved thought that the area
qualified whether in feature or risk for the title of a
fairway or narrow channel. Although nothing has been
done to delineate the area for example by pecked lines as
a narrow channel, I accept Captain Third’s views that a
location may not be officially designated as the location
does not come up to the designated risk factor but that
does not mean that it is not a narrow channel.”
In making these comments however the Trial Judge does not
appear to have differentiated, between a fairway and a narrow
channel, which are not the same thing71. That she considered
the “road” should be marked by imaginary pecked lines
indicates the “road” lay within the channel which is that
bounded by the two land masses to the north and south. There
...
being no other defined “channel” in these waters, the “road”
could only be a fairway; and a fairway that needed to be
735. ...The stretch of water from Ma Wan... westwards
delineated in order that mariners might know of its position and
towards the buoyed channel and along the buoyed
boundaries. The Director of Marine has the power to designate
channel is analogous to a roadstead.”
fairways in Hong Kong and the fact that he had considered this
issue and decided against establishing a principal fairway in
The Trial Judge considered that vessels proceeding in and along these waters should have been both determinative and
this “channel” – the roadstead from Ma Wan to the buoyed
conclusive.
channel and through the buoyed channel – should navigate in
accordance with Rule 9 relying upon the principles established
5. The manner in which seamen in fact navigate within the
in The Empire Brent63 and The Canberra Star64. These cases
channel
are considered below65.
Lord Clarke considered this to be “a potentially relevant factor”
for determining whether Rule 9 applies in a particular channel72.
Whilst these waters might well be treated as a roadstead there Earlier cases suggest that to the extent there is a legal test for
is no clearly defined fairway and none marked on the chart with
pecked lines, and to suggest that mariners should imagine one
66 CFA 156
is to invite uncertainty and confusion, the very thing the Trial
67 Supra FN26
Judge was seeking to avoid. It is also difficult to see how the
68 Supra FN 34
Trial Judge could make this finding on the evidence before her,
69 The Report of “A Study on Marine Traffic Risk Assessment for Hong Kong
Waters”: the “MARA Study Report”
when it was manifestly clear from the VTC data that vessels
70 The MARA Study Report noted that the establishment of a designated
navigating in the stretch of water from Ma Wan to the buoyed
fairway in these waters would generally enhance the safety of the
channel – indeed, in this entire stretch of water from Ma Wan to principal
environment, but that this would require significant dredging capital costs and
Urmston Road – do not do so in accordance with Rule 9.
patrol operations which rendered this option unsuitable in the short to medium
“385. I accept that seamen navigate the whole area of
water from Ma Wan to the buoyed channel in accordance
to Rule 9 but more particularly when they are navigating
on approach to and especially within the buoyed channel.
62 RV 226
term. This report was subsequently circulated and discussed, inter alia, at PAC
meetings. To date, no principal fairway has been established in these waters.
64 [1962] 1 Lloyds Rep.24
71 As appears from the descriptions in the Mariner’s Handbook, and the
judgment of Sir Gordon Willmer in The Koningin Juliana [1974] 2 Lloyd’s Rep.353,
discussed at 3(4) below
65 At D.4(1)
72 CFA 168
63 [1947) 81 L.Ll. Rep.306
07
08
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
determining whether Rule 9 applies in a particular channel or
fairway, it is the, or one of the determining factors73. Lord
Clarke however, considered it to be only potentially relevant;
that where “there is evidence that the vast majority of those
navigating in the area treat a particular channel as a narrow
channel” then it is a factor to be taken into account but not
otherwise74.
Lord Clarke considered this to be such case75 and made
reference76 to the Trial Judge’s comments in her judgment of
how seamen in fact navigate the area77. The Trial Judge relied
upon the evidence of the pilots of the YH and BERLIOZ, and the
“petition” letter signed by 96 out of the 101 pilots in Hong
Kong78; and the fact that the VTC recordings of traffic
movements in this area of water for the 24 hours immediately
preceding the collision showed that all passings between
vessels navigating within the buoyed channel were port to port.
It is of course, her finding that Rule 9 applied within the buoyed
channel which is most relevant, but as both the Trial Judge and
Lord Clarke appeared readily to accept, it is how seamen
navigate in this area of water which is important and not just
how they navigate within the buoyed channel.
The fact that all vessels passed port to port when navigating
within the buoyed channel in the 24 hours preceding the
collision does not necessarily mean they were navigating in
accordance with Rule 9. As the VTC recordings showed, when
there were no other vessels navigating within the buoyed
channel vessels heading east or west through the buoyed
channel followed a similar route to that taken by the N67; that
is, effectively keeping to the middle of it. It is just as likely
therefore, that the port to port passings were the result of
these vessels navigating in accordance with the head-on rule,
Rule 14. Also, and as the VTC operators pointed out during
their evidence, most of the vessels using the buoyed channel
are proceeding under pilotage and the pilots customarily make
their own passing arrangements. The evidence otherwise,
indicated that vessels navigating in the waters outside of the
buoyed channel do not adhere to Rule 979.
6. The Expert Evidence
Lord Clarke noted that those witnesses who considered the
buoyed channel was not a narrow channel where Rule 9 applied
were the VTC operators, Dr Stephen Li of MARDEP, and
Captain Kulemesin and his two experts80. He then proceeded to
identify the reasons why each of these witnesses expressed the
opinions they did, and examined whether those opinions stood
up to scrutiny81.
Of the evidence of the three VTC operators, Lord Clarke said –
“175. ...It is true that they all expressed the view that the
[buoyed] channel was not a narrow channel, but the basis
of their view was that it was not a channel at all and that,
73 See 3(2) below
74 CFA 168
75 CFA 169
76 CFA 169,170
at any rate in some of the evidence, that that was
because it was not designated as such. In this Court it is
accepted that the [buoyed] channel is a channel, the only
issue being whether it is a narrow channel. It is
presumably accepted that it is a channel because it is
designated as such in the Pilot Book and because the
buoyed channel is clearly shown on the chart. In these
circumstances the evidence of the VTC operators is of no
real assistance.
176. The operators were plainly wrong in so far as they
suggested that a channel cannot be a narrow channel
unless it is gazetted. For the reasons given above, it does
not follow from the proposition that a channel which is
gazetted as a narrow channel is a narrow channel that a
channel which is not so gazetted is not a narrow channel.
All depends upon the circumstances...”
The evidence of the VTC operators that the buoyed channel
was not a channel must be read in context. This evidence was
given during cross-examination by one of the counsel for the
defendant Pilots and Master of the YH, who was seeking to
establish that the buoyed channel was a narrow channel where
Rule 9 applied. The VTC operators were adamant that Rule 9
did not apply in this area and that the buoyed channel was not
a narrow channel; that is, not a “channel” for the purposes of
Rule 9.
Clearly, and as noted82 the buoys create a channel – a buoyed
channel – but they do not appear to mark a channel which is
otherwise geographically or bathymetrically defined. The Pilot
Book does not designate the buoys as marking any such
defined channel; on the contrary, it states that the buoys mark
the deep water route83 and describes the water between the
buoys as the “buoyed channel”. The buoys are marked on the
chart but the buoyed channel is not otherwise marked –
delineated – by pecked lines; and if the marking of fairways or
narrow channels by pecked lines on the charts covering the
other main approach routes to Hong Kong harbour is “almost
certainly... conclusive” that Rule 9 applies, then it must certainly
be arguable that the absence of any such marking or
designation on Chart BA4122 is almost certainly conclusive that
Rule 9 does not apply in the western approach.
In dismissing their evidence as being “of no real assistance”
Lord Clarke, like the Trial Judge, appears to have taken no
account of the function and purpose of the Vessel Traffic
Services department of MARDEP and the role of the VTC
operators. The VTC operators are all qualified mariners who
have been examined and licensed by MARDEP like the pilots of
Hong Kong. Their role is to monitor traffic movements in Hong
Kong so as to “ensure compliance with international safety and
marine environmental protection standards in respect of ships
registered and licensed in Hong Kong and using Hong Kong
waters...”84. In order to do this they must know which Rules
apply in any particular area of Hong Kong waters, and their
opinions – that Rule 9 did not apply in the buoyed channel –
should arguably have been given more weight and certainly as
much if not more weight than the opinions of the pilots.
77 RV 382-385; and see also 1(3) above
78 See 1(3) above
79 CFA156
82 See 1(2) above
80 CFA 174
83 See 1(2) above
81 CFA 174
84 MARDEP webpage: www.mardep.gov.hk
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
Of Captain Stephen Li of MARDEP Lord Clarke observed85 –
“….He expressed the view that the CP buoys demarcate
the deep water route in the area, which is correct, but he
added that as most vessels can navigate outside the
buoys, the area is not considered as a narrow channel. In
my judgment that view is plainly wrong...”
This view was also the official HKSAR view being that of the
Director of Marine and was also shared by Captain Kulemesin’s
two experts. If a “channel” is properly described in the Mariner’s
Handbook86 then it will always be the case that most vessels
cannot navigate outside of such a channel. Lord Clarke
however, like the Trial Judge, was content to rely on Captain
Third’s evidence to the effect that –
“...there are many areas in the world where some vessels
can navigate outside a channel and some cannot. This is
simply one of them...”
This is correct where buoys are used to delineate a fairway or
the limits of the safe navigable water within a geographically or
bathymetrically defined channel, but even then it is only the
shallowest draught vessels which can do so. That is not this
position in this case.87
In light of this, the analysis above, and the recognised difficulty
of defining a narrow channel for the purposes of Rule 988, it is
surprising that Lord Clarke considered it would not be
appropriate –
“179. ...for this Court to hold that the opinions expressed
by those witnesses were reasonable or correct...”
3. Legal Test
In the section of his judgment headed “Discussion” Lord Clarke
reviewed the legal test for determining whether or not a
channel is a narrow channel for the purposes of Rule 9, and the
suggestion made on behalf of Captain Kulemesin that it was
time now for a new legal test to be formulated.
1. Test applied by the Trial Judge
Lord Clarke rejected Captain Kulemesin’s submission that the
Trial Judge had wrongly employed a two stage test by first
considering the physical criteria of the buoyed channel, and to
the extent that she found these criteria inconclusive, to then
separately consider how seamen in fact navigated in the buoyed
channel89. Whilst accepting there was some force in this
submission, he said –
“182. ...However, the judge held that the [buoyed] channel
was a narrow channel based on all these considerations…
both of it being physically narrow geographically and
bathymetrically, and of the manner that seamen in fact
navigate in the channel. For the same reasons the Court
of Appeal were correct to uphold her decision.
183. Those conclusions are consistent with the authorities
as I read them...”
He then went on to consider these authorities.
2. The Legal Authorities
Lord Clarke noted that whilst there is no universal definition of
a narrow channel, and defining such a channel involves
considerable difficulty, he believed it should be possible in the
vast majority of cases to recognise a narrow channel where
Rule 9 applied90. This would depend on the particular facts of
each case so that earlier reported cases were of little, if any,
assistance in this regard91. He then proceeded to review several
of the leading English cases decided by Sir Gordon Willmer (as
he became) during the period from the 1940’s to the 1970’s in
which the latter had dealt with this issue as being partly one of
how seamen in fact navigate in the locality and partly as one for
the advice of the Elder Brethren92.
In The Jaroslaw Dabrowski93 Sir Gordon Willmer (then Mr.
Justice Willmer) referred to the decision of Mr. Justice Langton
in The Varmdo94 and said –
“I am not so interested in the actual decision in that case,
which, as I say, related to a different place, a place of a
totally different character; but I am very interested in the
reasons which Mr. Justice Langton advanced for arriving
at his conclusion. He dealt with the matter as being partly
one of evidence as to how seamen in fact navigate the
locality, and partly as one for advice by the Elder Brethren.
Those two things really amount, I suppose, to much the
same thing. What Mr. Justice Langton was in effect saying
in his judgment in that case was that a “narrow channel”
within the rule is that which by the practice of seamen is
treated, and necessarily treated, as a narrow channel...”
This suggests that the legal test (the “Willmer test”) for
determining whether a channel is a narrow channel where Rule
9 applies is how seamen in fact navigate in the locality. If not the
test, it would appear to be one of the determining factors as he
subsequently noted in The Sedgepool95 –
“As I understand the law, one of the determining factors in
deciding whether a given area is or is not within the
‘narrow channel’ rule is the way in which seamen in fact
regard and behave in it...”96
Lord Clarke however, considered this to be only one of several
factors to be taken into account in what he described as “a
multi-factorial exercise”97 to determine this issue, the other
factors being those he had set out and which have been
analysed above. Indeed, and as noted98, he only considered this
to be “a potentially relevant factor” for determining whether
Rule 9 applies in a particular channel99. Whilst not advocating a
new legal ‘test’ as such, Lord Clarke clearly favoured a different
emphasis, and that how seamen navigate in the area can no
longer be said to be the test or indeed “one of the determining
90 CFA 185
91 CFA 185
92 CFA 186,187
93 [1952] 2 Lloyd’s Rep 20 at page 26
94 [1940] P.15
85 CFA 177
95 [1956] 2 Lloyd’s Rep 668
86 See 1(2) above
96 Quoted by Lord Clarke: CFA 187
87 See 1(2) above
97 CFA 183, 184
88 CFA 185
98 See 2(5) above
89 CFA 182
99 CFA 168
09
10
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
factors” for deciding this issue. He reconciled his multi-factorial
‘test’ however, with these reported cases on the grounds that –
“188. ...the advice of the Elder Brethren, who advise the
judge on nautical matters in collision actions in England,
will be based on the kind of assessment to which I have
referred, namely the physical and geographical conditions
and the information on the chart and in other
publications...”
He continued –
“So, for example, in The Anna Salen100 Willmer J. said at
page 487 that the Elder Brethren advised him that it
would not be possible to define what was the channel for
the purposes of the narrow channel rule. On the facts
here there is no such difficulty because of the buoys and
there is I think no doubt what advice the Elder Brethren
would have given.”
Lord Clarke did not think there was any doubt about this
because he considered the opinions of those experts and
witnesses who took a contrary view to be unreasonable and
wrong101, and was presumably confident that the Elder
Brethren would have given what he considered to be the
‘correct’ advice. In light of the analysis above however, it is
surprising that the views of qualified and experienced marine
experts, and those of the Director of Marine and MARDEP,
should be so readily classified as wrong, rejected and dismissed.
3. A new legal test
It was suggested on behalf of Captain Kulemesin that whilst the
“Willmer test” might have sufficed in the twentieth century
when navigation was less extensively regulated there is no
scope or reason for the application of such an uncertain test in
the 21st century; that the essence of any test for mariners
should be objective certainty and the “Willmer test” (if it can be
so described) is too restrictive and does not take into account
other relevant considerations. A mariner who navigates a
stretch of water, whether for the first or the fiftieth time,
should be able to determine from objective criteria whether or
not Rule 9 applies. The difficulty with the “Willmer test” is that a
mariner navigating a stretch of water for the first time will not
necessarily know how it is navigated by other mariners, even
less the views of the Elder Brethren as to how vessels navigate
in the locality. There is also the possibility that the approach of
the mariners and views of the Elder Brethren may be different.
narrow channel or fairway for the purpose of Rule 9 will
thus also be conclusive.
3.
The absence of any such official designation in otherwise
regulated waters should be either determinative of this
issue or, if not determinative, highly persuasive.
4.
If a particular channel or fairway has not been officially
designated then there should be a strong presumption that
Rule 9 will not apply. That presumption can be rebutted
where the physical characteristics (geographical and
bathymetrical features) of the locality and/or published
nautical information (the relevant charts, Admiralty Pilot,
etc) clearly demonstrate that it is a narrow channel or
fairway in which Rule 9 applies. Typically such a channel or
fairway will be marked by pecked lines on the chart and
described in the Admiralty Pilot as a narrow channel or
fairway.
Lord Clarke accepted the force of the arguments in favour of
the official designation of narrow channels and fairways as a
means of providing more guidance to mariners about when
Rule 9 applies but did not consider it appropriate to formulate a
new legal test. He said –
“194. ...I do not see how this Court can for the first time
lay down principles of navigation different from those
which have been accepted to date. It must approach them
as mariners would do. For these reasons I would reject the
submission that, in the absence of a published designation
or declaration that a channel is a narrow channel, the
channel should either be conclusively treated as not being
a narrow channel or there should be a strong presumption
to that effect.”
Would the implementation of the “Jacobs test” however, really
lay down different principles of navigation? Lord Clarke
considered that the CFA should approach this issue as mariners
would do, in what he described as “a multi-factorial exercise”102.
Mariners would consider all the relevant factors, including those
which point to Rule 9 applying and those which do not. This
approach therefore, necessarily involves a comparative
evaluation – or weighting – of the various factors. The “Jacobs
test” merely sets out how certain of those factors should be
weighted. Lord Clarke was prepared to accept that if the
buoyed channel had been officially designated as a narrow
channel or fairway (stage (1) of the “Jacobs test”), or officially
designated as not being a narrow a narrow channel or fairway
(stage (2) of the “Jacobs test”), then these two factors would
have been conclusive103. The only ‘different’ principle which the
With these points in mind the CFA was encouraged to apply a
CFA was being asked to lay down was that in stage 3 of the
new, 4 stage test (what Lord Clarke referred to as the “Jacobs
“Jacobs test”: that the absence of such official designation in
test” after Captain Kulemesin’s lead counsel) as follows –
otherwise regulated waters should be either determinative of
this issue or, if not determinative, highly persuasive. Is that really
1. If a particular channel or fairway has been officially
a ‘different’ principle, or simply another part of the “multidesignated as a narrow channel or fairway for the
factorial exercise” which mariners carry out when making their
purposes of Rule 9 then that designation will be conclusive. determination?
2. Where the relevant authority has taken a positive decision
Hong Kong is one of the busiest ports in the world and the
not to designate a particular channel or fairway as a
narrow channel or fairway for the purposes of Rule 9 then waters of Hong Kong are some of the most heavily regulated,
monitored, and controlled in the world. In three out of the four
the relevant tribunal should respect that decision as
main approaches to Hong Kong harbour the Director of Marine
reflecting the intention of the executive. A positive
decision not to designate a particular channel or fairway as has considered it appropriate and desirable in the interests of
100 [1954] 1 Lloyd’s Rep 475
102 See 3(2) above
101 See 2(6) above
103 CFA 151
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
marine safety to introduce traffic separation schemes (adopted
by the IMO) and principal fairways. Yet there are no such traffic
separation schemes or fairways in this, the western approaches
to Hong Kong harbour. Could it really be that this omission is an
oversight on the part of the Director of Marine? Or might it be
reasonably inferred, or at least presumed104 that it is a
deliberate, positive decision on the part of the Director of
Marine not to officially designate any of these waters as a
narrow channel or fairway? Surely this is not an unreasonable
presumption, and especially in circumstances where it was
readily acknowledged that a mariner in any doubt could contact
MARDEP and would be told that Rule 9 did not apply?105
4. The Koningin Juliana
It was suggested on behalf of Captain Kulemesin that The
Koningin Juliana case106 was authority for “the proposition that
there cannot be a narrow channel within an area where
other107 vessels navigate outside of it”108. Lord Clarke rejected
this proposition because he considered that case was
concerned with a different question, namely what was meant by
the words “fairway or mid-channel” in the earlier version of the
‘narrow channel’ rule which is now Rule 9; and because he
considered the Trial Judge was entitled “to accept the evidence
of Captain Third that there are numerous ports in Europe
where vessels navigate in water outside narrow channels.”109
The Koningin Juliana case concerned a collision within Harwich
Harbour in a stretch of water between the land masses
containing the ports of Flexistowe in the east and Harwich in
the west. It was common ground that the navigation of the two
vessels was governed by By-law 14 of the Harwich Harbour
Conservancy Board By-laws, 1954, which provided for the
application in these waters of the ‘narrow channel’ rule in the
version of the COLREGS then in force (hereafter referred to as
Rule 9). That version of Rule 9 provided that “...every powerdriven vessel when proceeding along the course of the channel
shall…..keep to that side of the fairway or mid-channel which
lies on the starboard side of such vessel.” The case was indeed
concerned with the meaning of these words “fairway or
mid-channel”, but in determining their meaning the Court also
had to decide what part of these waters formed the narrow
channel and/or the fairway for the purposes of applying this
Rule.
The stretch of water between the two land masses contained a
buoyed channel and a dredged channel within the buoyed
channel. The dredged channel was clearly marked and
delineated on the relevant chart by pecked lines and was the
main navigable channel through the harbour for ocean going
vessels. The buoys (lateral marks under the old UK Buoyage
System) marked the limits of the safe navigable water between
the two land masses. Brandon J. said110 –
“I do not think that it would be right to hold that, in
relation to these waters, the expression “narrow channel”
104 Even leaving aside the MARA Study Report
105 CFA 192
106 [1973] 2 Lloyd’s Rep 308; [1974] 2 Lloyd’s Rep 353 (CA)
107 A fortiori in this case where both N67 and YH could safely navigate outside
of the buoyed channel
means the dredged channel and no more. A great many
vessels using the harbour can and do navigate outside the
dredged channel, and so to hold would mean that such
vessels, when so navigating, were not subject to [Rule 9]
at all... I therefore hold, that in this place, the expression
“narrow channel” in [Rule 9] means the whole width of the
navigable water between the lines of the buoys.”
On appeal, Lord Denning MR said111 –
“The “narrow channel” here was the whole width of the
navigable water. But within it there is a dredged channel
which is marked on the Admiralty chart by pecked lines...
But on either side of this dredged channel there are
stretches of water which lead up to sand and mud banks...
There are buoys along these stretches so as to warn
vessels of shelves when the water is not deep enough to
navigate with safety...
...
Where there is a dredged channel, it is the “fairway”.
Where there is no dredged channel, the “mid-channel” is
the middle line of the navigable water...
I would only add this: the regulation applies not only to the
dredged channel itself, but also to the stretches of water
on either side of it right up to the shore...”
Brandon J. did not think it would be right to hold that the
dredged channel – the deep water route for ocean going
vessels – was the “narrow channel” for the purposes of Rule 9
because a great number of vessels could and did navigate
outside of it. (The same reason which the Director of Marine/
MARDEP, the VTC operators, Captain Stephen Li, and Captain
Kulemesin and his experts all gave for their views: that Rule 9
did not apply in this buoyed channel112. He considered the
“narrow channel” for the purposes of Rule 9 to be the whole
width of the navigable water between the buoys, and Lord
Denning MR agreed with him. By marking the limits of the safe
navigable water between the land masses and the sand banks
the buoys were marking a channel which was well-defined
geographically and bathymetrically. Lord Denning MR went
further and said that in these circumstances Rule 9 applied not
just within the buoyed limits of the safe navigable water in the
channel but right across the channel up to the shore on either
side; that is, to all of the waters within the narrow channel. He
also determined that the dredged channel – the main deep
water route through the channel – was properly a “fairway”.
These findings are consistent with the descriptions of “fairway”
and “channel” in the Mariner’s Handbook113). The Koningin
Juliana case therefore, might be said to lay down some
principles of general application for determining whether a
particular channel is a fairway or a narrow channel for the
purposes of Rule 9; and if so, the area of water to which Rule 9
applies. Notably, it might be said to support the proposition
made on behalf of Captain Kulemesin: that if most vessels can
safely navigate outside of a channel then that channel cannot be
a narrow channel for the purposes of Rule 9. As noted above,
108 CFA 195
111 [1974] 2 Lloyd’s Rep 353 at 353
109 CFA 196
112 See 2(6) above
110 [1973] 2 Lloyd’s Rep 308 at 313
113 See 1(2) and 1(3) above
11
12
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
that also accorded with the views of the Director of Marine/
MARDEP and other mariners who gave factual and expert
evidence at the trial.
In finding that the Trial Judge was entitled to accept the
evidence of the other experts, Lord Clarke drew attention to
cases in the materials before him where a stretch of water had
been held to be a narrow channel for the purposes of Rule 9
even though vessels could navigate outside of that stretch of
water. He cited114 The Gustafsberg115; The La Bretagne116; The
Toluca117; and The Devotion and the Golden Polydaminos118. If
one accepts and recognizes the distinction between a “channel”
and a “fairway” however, the first three of these four cases are
examples of vessels being able to navigate outside of the
fairway within a wider, narrow channel, but not outside of the
narrow channel. In The Devotion and the Golden Polydinamos it
was agreed by the parties at trial that the extension of the
Panama Canal proper (that is, the canal through the land) out
into the open sea, was a narrow channel within the meaning of
Rule 9 of the COLREGS. There was no issue in this case
therefore, as to whether or not this extension of the Panama
Canal was a narrow channel – or again, more properly a fairway
– for the purposes of Rule 9. It had also been clearly designated
as such by the relevant authorities and marked and delineated
on the chart by pecked lines. None of these cases therefore, are
authority for any general proposition that a channel can still be a
narrow channel when vessels can safely navigate outside of it.
On the contrary, they are all consistent with a widely held view
among mariners, that a narrow channel is one which vessels
cannot safely navigate outside of.
4. Reasonable Belief
The Trial Judge considered Captain Kulemesin’s belief that the
buoyed channel was not a narrow channel where Rule 9 applied
to be “unreasonable”, and his belief that this was a crossing
situation where the crossing rule applied to be “wholly
unreasonable”. The Court of Appeal agreed. Lord Clarke was in
“...no doubt that [Captain Kulemesin’s] breach of duty in failing
to navigate on the starboard side of the [buoyed channel]
endangered the N67 and the lives of those on board”119 . He
continued –
“212. ...It thus appears to me that the question boils down
to this. Have the prosecution established beyond
reasonable doubt that the belief of [Captain Kulemesin]
that the [buoyed channel] was not a narrow channel was
a belief which was not held on reasonable grounds?”
Lord Clarke then referred to his reasons for finding that the Trial
Judge was correct to determine that the buoyed channel was a
narrow channel where Rule 9 applied (discussed above) and that
in his view “no reasonable mariner could consider that the
[buoyed channel] is not a narrow channel”120. He then noted121
that the Trial Judge had considered her Reasons for Verdict
Captain Kulemesin’s beliefs that –
1.
Rule 9 did not apply outside a narrow channel
2.
Rule 9 did not apply to N67
3.
the crossing Rule did apply
He considered therefore, that the Trial Judge had addressed all
the issues which it was necessary for the Prosecution to prove
and that –
“Moreover she arrived at what in my opinion were the
correct conclusions, which were of course arrived at by
applying the criminal standard of proof, namely beyond
reasonable doubt.”122
Did she however, arrive at the correct collisions? And if she did,
were they conclusions she could make beyond reasonable
doubt?
1. Rule 9 did not apply outside narrow channel
In extending the application of Rule 9 to vessels navigating
outside of and approaching the entrance to a narrow channel,
the Trial Judge said –
“403. It is incorrect to have a cessation at a point for the
purpose of the rules. Vessels approaching the channel
and vessels within it must acknowledge that there must
be some continuity in the rule. It must follow that Rule 9
applied across the entrance of the channel as this would
avoid a sense of chaos. It is imperative to avoid ambiguity.
...
“406. ...Where you have a narrow channel governed by
Rule 9 it dictates that when in the channel you should
keep to the starboard side of the channel then prior to
entering the channel or within the channel you must be on
the starboard side. It would make all practical sense that
the rule be extended to the entrance and approach of the
channel. That would inevitably mean that when
encountering vessels upon leaving or entering the channel
vessels would be on the starboard side and would be
approaching each other head on and the ambiguity would
then be resolved.”
In making this finding she cited in support the decisions of
Willmer J. in The Empire Brent123 and Hewson J. in The
Canberra Star124 as Lord Clarke observed125; and her finding
seemed to make good sense to Lord Clarke126 as a matter of
safety127.
In The Empire Brent both vessels were navigating inside and “up
and down the channel” so that Rule 9 clearly applied. There is
nothing in the judgment of Willmer J. to suggest Rule 9 might
apply to a vessel navigating outside of the channel; and indeed,
Willmer J. recognized that the crossing rule might apply even
within the channel.
114 CFA 196
122 RV223
115 [1905] P 10
123 (1947) 81 L. Ll.Rep.306
116 [1910] 179 F.286
124 [1962] 1 Lloyds Rep.24
117 [1981] 2 Lloyd’s Rep 548
125 CFA 217
118 [1993] 2 Lloyd’s Rep 464
126 CFA 218
119 CFA 212
127 CFA 167 - quoted in 2(4) above
120 CFA 215
121 CFA 216-221
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
In The Canberra Star both vessels were navigating in dredged
channels in the River Thames with the CITY OF LYONS about to
enter the main buoyed channel or fairway in the next reach of
the river in which the CANBERRA STAR was already navigating.
Hewson J. determined that the ‘narrow channel’ rule (Rule 9)
applied to the vessel navigating in the channel but not to the
vessel navigating outside of it. The actions of the vessel
navigating outside the channel were governed by the rule of
good seamanship: to act reasonably, with caution, and so as to
not hamper the navigation of the vessel already navigating in
the channel. Hewson J. also made it very clear that he was not
saying that the crossing rule could never apply in this type of
situation128 contrary to the Trial Judge’s analysis. This case is
also not authority therefore, for the Trial Judge’s finding. On the
contrary, it is authority for a rule of good seamanship requiring
the approaching vessel to give way to the vessel navigating in
the channel, a rule which Brandon J applied in The Troll River129
where he said130 –
“The general rule applicable is that a ship which is outside
a fairway should not enter it at such a time or place as will
cause difficulty to other ships already in the fairway and
proceeding up or down it.”
When considering this aspect Lord Clarke appears to suggest
that Rule 9 should apply to a vessel approaching a narrow
channel as a matter of good seamanship. He said –
“225. I have already concluded that the [buoyed channel]
is a narrow channel. I have also expressed the view in para
217 that 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 Judge in effect so held in paras 400 to 407 and was
correct to do so. This approach is consistent with that
espoused by the Court of Appeal in England in The Kaiser
Wilhelm Der Grosse [1907] P 259 at 264 where Lord
Alverstone CJ said:
The Kaiser Wilhelm Der Grosse132 was decided in 1907 and
involved a finding that the water between the ends of two
breakwaters in the western entrance to the port of Cherbourg
was a narrow channel. The rule of seamanship under
consideration in that case however, and therefore the decision,
would not appear to be of general application to the entrances
of all narrow channels, but of limited application to “openings”
of this sort. As Fletcher Moulton L.L. commented133 –
“...our nautical assessors advise us, that as a matter of
seamanship a master ought to recognize that the proper
way of using such an opening is to keep to one side...”.
Lord Merriman made this clear in The Kirsten Skou134 –
“Now does the crossing rule apply, or does the narrow
channel rule apply? I have been confronted – ... – with the
case of the Kaiser Wilhelm der Grosse [1907] P.36. ...That
was a case of a collision between an in-coming ship and
an out-going ship in the passage between two
breakwaters in Cherbourg Harbour. In other words, it was
dealing with two immovable masses to the westward and
eastward approximately of a channel half a mile in width
– approximately the same sort of width as we are dealing
with in this case – through which the ships must
necessarily pass. On the other hand, we in this case are
dealing with two wreck buoys which are the only
obstructions... The analogy between the two cases is not
at first sight very clear. But in relation to the
circumstances in the Kaiser Wilhelm der Grosse, where
unless the vessels stuck to the open water of the channel,
they would inevitably hit a very solid breakwater [the
narrow channel rule applied]. But that seems to me to be a
very long way away from the case which I have to decide.
There was no necessity at all for this ship to pass between
these two buoys... , there was nothing in the world to
prevent the Kaupo, if she was in any danger of getting
into trouble by trying to go between the two buoys, from
keeping clear to the southward of the southernmost of
the two buoys.”135
That was the situation in this case where the YH was similarly
not constrained to passing between the CP1 and CP2 buoys,
but could safely navigate to the north of the CP1 buoy136. Lord
Clarke referred to The Kirsten Skou in his judgment137 but
“The duty of the Orinoco was undoubtedly to get well regrettably, he did not consider it in this context.
over, as far as she could safely get, to the western
This finding also does not sit well with the wording of Rule 9
side of the entrance, so as to enter fairly close to the
which raises a very strong presumption that it applies only
side of the channel on which is Fort Chavagnac.”
within a narrow channel or fairway. Furthermore, when a vessel
is not in a narrow channel or fairway, it is not possible for that
As I read the report, the reference to the entrance was a
vessel to “keep as near to the outer limit of the channel or
reference to the entrance to a narrow channel. I would so
fairway which lies on her starboard side as is safe and
answer the question raised by issue 3131 if it were
practicable” because, on this hypothesis, the narrow channel or
necessary to do so.”
fairway does not in fact exist.138 There are also obvious practical
128 “Now, as to these contentions, I want it to be clearly understood that I am
very far from saying that the crossing rule never applies in the area of the River
Thames covered by the Port of London River By-laws...”
129 [1974] 2 Lloyd’s Rep 181
130 [1974] 2 Lloyd’s Rep 181, at page 186-7
131 The third point of law of in the CFA appeal being whether Rule 9 applies to
a vessel approaching but navigating outside of a narrow channel with the
intention of entering it
132 [1907] P 259
133 [1907] P 259 at page 270
134 (1949) 83 L.Ll.Rep 279
135 (1949) 83 L.Ll.Rep 279 at page 287
136 RV 400
137 CFA 197
138 See, for example, The “State of Himachal Pradesh” [1985] 2 Ll.R. 573
where it was held (at 574R) that the narrow channel rule did not apply outside
the immediate confines of the narrow channel. (The issue was not raised on the
appeal: [1987] 2 Ll.R. 97.)
13
14
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
difficulties if Rule 9 is to apply outside the geographical
confines of a narrow channel. When and where in the
approaches to the narrow channel does Rule 9 start to apply so
as to over-ride the other COLREGS which were then otherwise
applicable such as the crossing rule or rule of good seamanship
discussed in The Canberra Star? This finding creates ambiguity,
uncertainty, and confusion, the very things which the Trial
Judge and Lord Clarke were keen to avoid.
In his judgment Lord Clarke made no reference to another case
cited by Captain Kulemesin in his appeal, namely The
Glenfalloch139 where Brandon J. recognised that the crossing
rules would apply where one of the vessels was crossing the
channel from one side to the other and, a fortiori, from outside
the channel. In his judgment Brandon J. referred also to The
Leverington, where a collision occurred at the junction of the
main channel leading to Cardiff Docks and the channel to the
Roath Basin between a vessel going up the former and another
vessel coming down the latter. Both channels were narrow
channels to which the ‘narrow channel’ rule applied, but the
Court of Appeal held that the crossing rule also applied in these
circumstances. If, as these authorities illustrate, the crossing
rule can apply within a narrow channel, and at the junction
between two such channels, it cannot be the case (as the Trial
Judge found) that “in the approach to the narrow channel only
the narrow channel rule applies”140.
2. Rule 9 did not apply
Lord Clarke set out in his judgment141 the reasons why the Trial
Judge considered unreasonable Captain Kulemesin’s belief that
the buoyed channel was not a narrow channel142. These were
some of the very reasons which Captain Kulemesin gave for his
belief that the buoyed channel was not a narrow channel143.
Lord Clarke however, like the Trial Judge and Court of Appeal,
considered these and the other indicia discussed above to be all
one way –
“222. For the reasons I have already given, I have reached the
clear view that it was unreasonable for [Captain Kulemesin] to
believe that the narrow channel rule did not apply. The indicia
are all one way. It is true that some evidence was given to the
contrary. However I have considered that in detail. It was either
given by experts who were biased or was given by those with
no rational basis upon which to reach that conclusion. In
particular the view expressed by Dr [Captain Stephen] Li and
others that there cannot be a narrow channel where vessels
can navigate outside the channel is not based upon any
authority and, to my mind, is irrational. The whole point of a
channel marked by buoys in which there are port and
starboard hand buoys is that vessels inside the channel
proceeding along it will pass port to port. Where, for example,
there is a narrow dredged channel to enable deep draughted
vessels to proceed through it, again the whole point of such a
channel is to ensure that vessels pass port to port. The fact, as
may often be the case, that smaller vessels can navigate
outside the channel is surely wholly irrelevant to the question
whether the channel is a channel in the first example or a
narrow channel in the second example.”
These reasons have been analysed in detail above. As noted144,
the view expressed by Captain Li was shared by the VTC
operators and was also the official view of the HKSAR being
that of the Director of Marine/MARDEP. MARDEP is the HKSAR
department responsible for marine safety in Hong Kong with
powers to draft related legislation, and to monitor and control
how vessels navigate in Hong Kong waters. MARDEP has been
entrusted with these powers presumably because it employs
professional mariners with considerable experience who are
accordingly qualified to exercise such powers, in contrast to the
Marine Police who are not145. The Director of Marine has also
been entrusted with the power to initiate prosecutions where
those applicable laws have been broken146; and it is interesting
to note that if there had there been no loss of life in this case
and no involvement therefore, of the Marine Police, that Captain
Kulemesin would never have been charged with a breach of
Rule 9 of the COLREGS. The Director of Marine also has the
power, effectively, to designate when Rule 9 is to apply147; he is
also the Pilotage Authority for Hong Kong and the YH was
under pilotage at the time.
That being so, could the Prosecution prove beyond reasonable
doubt that Captain Kulemesin was in breach of Rule 9 in
circumstances where it did not call the Director of Marine to
give evidence as to the official HKSAR view of the status of
these waters? The Court of Appeal in addressing this issue
commented that –
“150. ...Evidence of [the Director’s] opinion, or that of his
immediate subordinates, would be accorded appropriate
deference by a court but ultimately would remain just
that, namely ‘opinion’ evidence. Certainly, it was not a
pre-requisite of proof ...that the Director of Marine,
personally or through a senior colleague in Mardep, gave
expert opinion evidence to that effect.”
The opinion of the Director of Marine however, is surely rather
more than just another expert opinion. It ought arguably to be
determinative of this issue given the functions and powers of
MARDEP as being the official view of the HKSAR. To the extent
that the opinion of the Director of Marine could properly be said
to be just another expert opinion, it is analogous in this context
to the opinion (advice) which the English Courts would obtain
from one of the Elder Brethren sitting as a nautical assessor,
being truly independent and from someone with direct,
personal experience of how seamen in fact navigate in these
waters. Lord Clarke considered the views of the Elder Brethren
to be particularly relevant148.
3. The Crossing Rule applied
Lord Clarke was of the view that “no reasonable mariner could
consider that the [buoyed channel] is not a narrow channel”149
and that “if it was unreasonable for [Captain Kulemesin] to
believe that the narrow channel rule did not apply, it was
unreasonable for him to think that the crossing rule applied to
the N67”150. Several mariners however, and the Director of
144 See 2(6) above
145 A fact conceded by the Chief inspector of the Marine Police when giving
evidence at the trial: Trial Transcript
139 [1979] 1 Ll.R. 247
146 See 1(1) above and supra FN11
140 RV 402
147 Supra FN34
141 CFA 220
148 CFA 188, see also 3(1) above
142 RV 451
149 CFA 215
143 See 1(1) above
150 CFA 221
SHIPPING
NARROW CHANNELS – A RECIPE FOR INJUSTICE
Marine/MARDEP did not consider the buoyed channel to be a
narrow channel; did not believe Rule 9 applied; and considered
the crossing rule to apply. Can it really be said therefore, that
such a view was unreasonable?
The MAIS investigated the cause of this collision151 and
considered the two vessels to be on crossing courses and such
that the crossing rule applied. It identified the probable causes
of the collision as being primarily the failure by the YH to give
way to the N67 in breach of Rules 8, 15, & 16; and for
proceeding at an unsafe speed in breach of Rule 6. This report
was circulated to all the interested parties including the
Ukrainian and Chinese authorities as the Flag States for the
N67 and YH respectively. It could not be adduced in evidence
however, in the criminal proceedings in Hong Kong.
Comment
There was clearly a dispute over the status of this particular
stretch of water in Hong Kong between on the one hand, the
Marine Police, the HKSAR Department of Justice (“DOJ”) and
most all of the pilots of Hong Kong who believed it should be a
narrow channel where Rule 9 applied; and on the other hand,
the witnesses and experts from MARDEP – the HKSAR
department with regulatory responsibility for the waters of
Hong Kong – who considered it to be open water where the
crossing rule applied and who represented the official view of
the HKSAR. The irony of this situation is that both the DOJ and
MARDEP form part of the same government and legal persona,
the HKSAR; and Captain Kulemesin was prosecuted by the
HKSAR! This dispute has now been resolved by the Hong Kong
Courts. It apparently involved no questions of law, Lord Clarke
noting that “the question whether a particular stretch of water
is a narrow channel within the meaning of rule 9 seems to me
to be essentially a question of fact”152. It is however, a difficult
question to answer in the absence of a clear definition, and of a
sort that has regularly perplexed mariners, international rule
drafters, and courts alike. It is a marine type of question, which
as Lord Clarke also noted, “...has to be asked by masters and
pilots in a myriad of different circumstances all round the world
day in and day out”153. It is a question that is best answered
therefore, by mariners and marine experts. The Hong Kong
Courts however, saw nothing remiss about the DOJ prosecuting
its case without reference to MARDEP and the official HKSAR
view, and considered themselves perfectly and fairly able to
determine this matter without hearing from the Director of
Marine, the usual arbiter of such questions involving the waters
of Hong Kong.
This was a criminal trial where the burden was upon the
Prosecution to prove its case on the narrow channel and the
application of Rule 9, and to the required criminal standard,
namely, beyond reasonable doubt.154 In light of the analysis
above it is difficult to see how the Prosecution could be said to
have properly done so, and how the Hong Kong Courts could
have been in no doubt at all about the status of the buoyed
channel: that it was a narrow channel where Rule 9 applied.
This is especially so in light of the admitted difficulty there is in
151 Supra FN10
152 CFA 151
153 CFA 151
154 Some may disagree with part or all of the analysis in this paper but is it so
plainly and obviously wrong that no reasonable mariner could be in any doubt
that the buoyed channel was a narrow channel where Rule 9 applied?
defining such a channel; the differing views of the experts and
other mariners who gave evidence at the trial; and in
circumstances where the official view of the Director of Marine/
MARDEP and therefore of HKSAR was that it is not a narrow
channel and Rule 9 did not apply.
The Hong Kong Courts and particularly Lord Clarke in the CFA
appeared too willing to apply Rule 9 simply because the buoys
were IALA lateral buoys and formed a channel which was not
very wide so that vessels passing in the channel should pass
port to port155. On this basis every channel marked by IALA
lateral buoys and which is not very wide will almost certainly be
a narrow channel within the meaning of Rule 9. If the
international conference that drafted the COLREGS had
intended that to be so then it is hard to understand the difficulty
they had with including a definition of a narrow channel; and
why it was necessary for the rule to make reference also to
“fairway”. It is also difficult to imagine too many narrow
waterways which are navigable by ocean going vessels and
where the navigable waters therein have not been marked by
buoys. Buoys however, are laid for particular purposes by the
competent authorities; in this case by MARDEP for the purpose
of marking the deep water route through Chi Shui-men. That
purpose must surely be a particularly relevant factor for
consideration when determining whether Rule 9 applies, as too,
should be the views of the competent authority responsible for
laying and maintaining the buoys. The word “channel” is
regularly used by mariners to describe the waters between two
lines of port and starboard hand lateral marks, but because
something is described as a “channel” and is of narrow width
does not necessarily mean it is a narrow channel for the
purposes of Rule 9. The starting point ought reasonably to be
the description of a channel in the Mariner’s Handbook and
certainly insofar as Hong Kong (and English) law is concerned156.
It is disappointing therefore, that the CFA did not consider it
necessary to formulate a new legal test for a “narrow channel”
in the 21st Century and should pass up this opportunity to
remove some of the uncertainty and confusion surrounding the
application of Rule 9. Lord Clarke has re-defined the nature of
the current test but mariners will continue to have to wait
several months after an accident in order for the Courts to rule
on the status of a particular stretch of water before they will
finally know whether or not it was a narrow channel or fairway
where Rule 9 applied. They deserved better.
Captain Kulemesin was required to wait almost 2 years, and his
appeals have taken a further 3 years. His beliefs that Rule 9 did
not apply, and that the crossing rule did apply, have been found
by the Hong Kong Courts to be unreasonable beyond all
reasonable doubt despite the many mitigating factors set out
during his trial and in the analysis above. For these
unreasonable beliefs he has been sentenced to 18 months in
prison. He is currently serving his sentence in the Tung Tau
Correctional Institution in Stanley, Hong Kong. He will not be
released from prison before 5 January, next year. He deserved
better.
155 CFA 192: “...The [buoyed] channel is a channel and ...it is a narrow channel
within which vessels must pass port to port.”
156 The Mariner’s Handbook is one of the publications which Hong Kong and
British flagged vessels are required by law to carry on board
15
The author of this paper is Harry Hirst, partner and master
mariner at Ince & Co Hong Kong. Harry represented Captain
Yurii Kulemesin in the Hong Kong criminal proceedings,
Kulemesin Yuriy v HKSAR (22/2/2013), and had access to the
evidence and materials presented during the various court
hearings.
Harry Hirst
Partner and Master Mariner,
Hong Kong
Adapted and abridged versions of this paper have also been
published in The Journal of International Maritime Law (JIML)
and Asia Maritime magazine.
British Admiralty chart BA 412212
Showing the tracks of the two vessels leading up to the
collision, and which is the same as that which Lord Clarke
annexed to his judgment as Annex 3.
Ince & Co is a network of affiliated commercial law firms with offices in Beijing, Dubai, Hamburg, Hong Kong, Le Havre, London, Monaco,
Paris, Piraeus, Shanghai and Singapore.
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The information and commentary herein do not and are not intended to amount to legal advice to any person on a specific matter. They are furnished for information purposes only and free of
charge. Every reasonable effort is made to make them accurate and up-to-date but no responsibility for their accuracy or correctness, nor for any consequences of reliance on them, is
assumed by the firm. Readers are firmly advised to obtain specific legal advice about any matter affecting them and are welcome to speak to their usual contact.
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