Some Aspects Of The Collision Regulations, 1972

Some aspects of the Collision Regulations, 1972.

University of Lund LLM – Maritime Law Name: Ognyan Savov Student Number: 781030-T072 Due date: 23.03.2009

CONTENTS:

1.INTRODUCTION 2. VHF COMMUNICATION WHEN A CLOSE QUARTERS SITUATION IS CREATED. 3. SAFE SPEED AND SPEED IN RESTRICTED VISIBILITY 4. CONFLICT BETWEEN VESSELS UNDERWAY AND VESSELS MAKING WAY THROUGH WATER 5. CONCLUSION

1. INTRODUCTION

This paper deals with the rules regulating the avoidance of collisions at sea – the so-called COLREGS1. Although the regulations, presently in force, were introduced in 1972, they have a long history. They originate from customary law and the first to put them in writing were the British in 1840.2 The latter model was widely accepted by the maritime states and are the direct ancestors of the present regulations.3 Therefore, a major part of the case-law used in this essay is from the courts of the United Kingdom. Despite their long history, there are provisions that are in conflict with each other and cause concern among those who are empowered with their interpretation and application4 as well as the way they have been interpreted by courts. Aspect of this research will not be the structure of the regulations or each and every rule. Under discussion will be the use of radio communication when sailing in congested areas, its weight in court decisions and the fact that it is not mentioned in the COLREGS; overtaking and give way vessels; the proper look out rule; the safe speed rule; and the conflict between the underway and not under command rules.

2. VHF COMMUNICATION WHEN A CLOSE QUARTERS SITUATION IS CREATED

Certain of the problematic aspects of the COLREGS and subject to predominant litigation have been the application of Rules 13 – Overtaking and 15 – Crossing situation when the vessels are visually in sight of each other.5 The former rule states that the overtaking vessel must keep clear of the overtaken vessel. Nothing has been stated about the duties of the vessel being overtaken. However, when reading Rule 13 together with Rule 8 – Action to avoid collision, it appears that the overtaken vessel is prevented from altering her course and speed so as to create a close-quarter situation. In addition, if one reads further Rule 13, should 1

Convention on the International Regulations for Preventing Collisions at Sea, 1972. Schoenbaum J, ‘ Collision and Marine Casualty’ in Admiralty and Maritime Law (4th ed) 2009 available on westlaw.org [accessed 18.03.2008]. 3 Ibid. 4 Parts B&C. 5 R. 3(k). 2

the overtaking vessel change her course so as to cross the bow of the slower vessel which is on her port side, she will never be deemed to be a stand on vessel as stated in Rule 15. Rule 15 holds that the vessel seeing the other on her starboard side when the two are on converging courses, must keep clear of her way; while the stand-on ship has to maintain its course and speed6. The situation is quite straightforward if the two vessels sail on parallel courses – Rule 13 always takes prevalence over Rule 15. However, when they are on converging courses and a close quarter situation is created, the issue arises when the participants interpret the Rules in a different way. Let us assume that vessel A sees B on its port side and applies Rule 15 while B sees A on its starboard side and applies Rule 13. One might say that the best way to avoid and/ or resolve such conflicting situations is to use radio-communication. However, most of the times, mainly due to poor knowledge of English7 (the official language used aboard vessels) or radio-interference, misunderstanding occurs and contributes to the deterioration of the situation. In addition, ‘the failure of the vessels to use VHF radio [cannot be a] a fault … where both vessels [are] in sight … and no such communication [is] necessary.’8 Furthermore, such use of V.H.F. radio is not advisable and the officers are to comply with the Collision Regulations.9 In The Maloja II10 Judge Sheen stated that the use of VHF was contributory cause for the collision of two vessels, ‘if only because it distracted the officers on watch from paying careful attention to their radar.’11 In The 'Aleksandr Marinesko' and 'Quint Star' 12 it was held that vessels should be navigated in accordance with the Collision Regulations and not by agreement on the VHF.13 Having shown that courts are unwilling to acknowledge the existence of VHF conversations with agreement to avoid a close quarters situation in breach of COLREGS, the discussion will refer back to the scenario with vessels A and B – while adherence to the Rules has been observed so that no close-quarter situation is created, the collision happens. Who is to blame? In most of the cases the both are guilty due to their failure to undertake preventive measures14 6

R.17(a)(i). The "Maloja II" [1993] 1 Lloyd's Rep. 48 at 55. 8 The “Antares II" and "Victory" [1996] 2 Lloyd's Rep. 482 at 498. 9 Ibid. 10 The "Maloja II" (n 7). 11 At 55. 12 [1998] 1 Lloyd's Rep. 265. 13 At 278. 14 The "Nordic Ferry" [1991] 2 Lloyd's Rep. 591. 7

‘as soon as it becomes obvious that the [give-way] vessel is not taking appropriate action in compliance with [the] Rules.’15 Even in situations where only one of the vessels is to blame for the collision due to gross violation of the COLREGS (eg sailing in the wrong lane)16 the innocent vessel bears a proportion of the damage for her ‘contributory failure’ to take preventive measures, such as decreasing her speed or altering course,17 for avoiding the accident. The outcome will be the same if the guilty party claims contribution under the umbrella clause of failure to carry a proper look-out.18 Such sharing of the guilt is in compliance with the Brussels Convention.19 Correct as they might appear, judges’ decisions are unjust. There are several reasons for this. The first is that in situations where, for instance, vessels are obliged to adhere to the lane specifically preserved for a particular course and nothing more, one can hardly expect that an officer of the watch would alter his ship’s course in case he observes a head-on vessel moving in the wrong lane. He would rather, being a reasonable person, contact the wrongdoer and say she is in the wrong lane. The reason for these words is that the vessel sailing in the starboard lane is in compliance with the COLREGS and is hard to be expected to ‘violate’ the rules and alter her heading towards the wrong lane. In addition, the latest requirement of IMO, introduced by SOLAS –Chapter V,20 regarding equipping vessels with a black box known as Voyage Data Recorder (VDR), should alter the way judges weigh the VHF communication adduced in evidence before them. Where courts refused to accept VHF information,21 this has to be changed now and the COLREGS should incorporate that modification. Although there always exists a risk of misunderstanding while communicating through VHF,22 this is the only way of real-time exchange of information and modification of the rules so that they fit the prevailing circumstances.

15

R. 17(a)(ii). Ibid. 17 R.8. 18 R.5 – indeed always when litigating collision, the lack of a proper look-out is claimed. 19 Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1910. 20 International Convention on the Safety Of Life At Sea, 1974. 21 The 'Aleksandr Marinesko' and 'Quint Star' [1998] 1 Lloyd's Rep. 265at 278. 22 The "Maloja II" [1993] 1 Lloyd's Rep. 48 at 55. 16

Where there are doubts as to who is to blame in a collision situation falling under the provision of Rule 2 – ‘special circumstances’ whose interpretation is left to the sole discretion of the judges, that is its meaning is of a more subjective than objective character, the ruling that VHF agreement does not fall under its definition,23 is unwarranted. It is submitted that incorporation of the VHF communication into the “special circumstances” provision would contribute to the fact that a failure to comply with an agreement between two vessels in the prevailing circumstances would make the wrongdoer the sole bearer of damage expenses. In addition, the application of the Rules would be made more clear-cut as well as doubts regarding the duties of the participants would disappear.

3. SAFE SPEED AND SPEED IN RESTRICTED VISIBILITY Regarding the duty of the vessels to keep at all times a ‘proper look-out’, this is a nebulous concept which is lacking a proper interpretation and which falls under all other rules of the COLREGS. Hardly is there any case adjudicating collision in which the look-out provision is not included. In The "Eglantine", "Credo" and "Inez",24 three vessels were proceeding through the English Channel in a state of decreased visibility with Inez on the wrong side of the channel. Prior to the collision, Credo was on the port quarter of Eglantine and overhauling her. Credo passed to the starboard side of Eglantine and thus they were on diverging courses. A the same time Inez was observed on the radar of Eglantine. Inez’ track showed that she would pass clear between Credo and Eglantine. However, at some stage Inez altered slightly her course to starboard, creating an impression on the bridge of Eglantine that head on situation had been created. The latter vessel made a bold alteration to starboard which resulted in her collision with Credo. While it was obvious for Judge Sheen that Inez (acting in breach of Rules 5 and 10) was the sole reason for the collision between Eglantine and Credo, they were also held liable for their failure to maintain a proper look-out and speed. 25 According to the judge, acting on the advice of the assessors, Eglantine failed to make a smaller alteration of her course towards 23 24 25

Crowley Marine Servs Inc v Maritrans Inc 447 F.3d, 2006 AMC 1246. [1989] 1 Lloyd's Rep. 593. At 601.

Credo than she did. 26Credo, on the other hand, failed to notice the creation of the closequarters situation between Eglantine and Inez until too late. All this was due to the both vessels’ poor watch-keeping. Regarding their safe speed, there are several aspects that are worth noting. The whole situation appeared in a state of restricted visibility, so that, in addition to the safe-speed requirements of Rule 6, the application of Rule 19 had also to be acknowledged. All the judge did was to determine the safe speed in the prevailing circumstances without recourse to Rule 19(b). The restricted visibility Rule 19(b) states the following – ‘[In restricted visibility] a power driven vessel shall have her engines ready for immediate maneuver.’ Its area of application is defined in exact terms and should always be used in addition to the all-encompassing ‘safe speed’ regulation. Furthermore, the structure of the ‘restricted visibility’ provision implies that whenever there is restricted visibility, the ships’ engines must be on stand-by. Even though Rule 4 states that Part B of the COLREGS, under which Rules 6 and 19 fall, is applicable to all situations, Rule 6 does not refer to Rule 19(b) and vice versa. Therefore, one might be misled that these two regulations are completely independent. Rule 19(b) states that in restricted visibility a ship must have her engines ready for immediate maneuver. When determining her safe speed under Rule 6, factors such as the state of visibility must be acknowledged. It implies that recourse to Rule 19 has always to be made. One might say that Judge Sheen’s several page elaborations on the meaning of safe speed under the prevailing circumstances in the Inez case for each of the three vessels touched upon Rule 19. Because it is undoubtedly correct that when one applies Rule 6, she is under the duty to refer to Rule 19(b) whenever the visibility is restricted. However, why when it is obvious that the two of them should always be used, no incorporation of Rule 19(b) has been made into Rule 6 and vice versa?

26

At 602.

4. CONFLICT BETWEEN VESSELS UNDERWAY AND VESSELS MAKING WAY THROUGH WATER The next problematic provisions, subject to research are Rule 3(h)(i) – ‘Vessel underway’, Rule 23 – ‘Power-driven vessels underway’ and Rule 27 – ‘Vessels not under command or restricted in their ability to manoeuvre.’ A vessel underway is the one not at anchor, made fast ashore or aground. This provision is exclusive and anything not falling under the excluded category is a vessel underway. Therefore, a vessel, stationary in relation to water but having speed over ground or stationary to both water and ground, is underway. As such she shall always exhibit the lights required by Rule 23. A vessel not under command is the one described by Lord Herschell in The P. Caland –27 upheld and extended by Judge Finlay in Owners of S.S. Mendip Range v Radcliffe. 28 If she is unable to keep out of the way of another vessel coming near her or she is capable of being steered and even can stop and reverse, but can do so after unusual delay, then she is not under command.29 Rule 27 prescribes the lights a vessel not under command must exhibit. However, unlike Rule 23 which states the lights of a vessel underway, Rule 27 speaks of vessels that make way through the water. When making way through the water, in addition to the lights for a vessel not under command, she shall exhibit sidelights and a stern light. On the other hand, a drifting not under command vessel, making no way through the water is, as explained above, a vessel underway and shall comply with Rule 23, that is exhibit side lights. Let us consider the following situation: a vessel at anchor which is also not under command due to some repairs in the engine with the anchorage being at a place having currents. She should be described as a vessel not under command making way through the water (the current flows through the sides of the ship) although not under way, but at anchor.

27 28 29

[1893] A.C. 207 at 212. [1921] 1 A.C. 556. Owners of S.S. Mendip Range (n 23) at 564.

Because she is at anchor, the rule applying to vessels under way (Rule 23) and controlling the time when her side and stern lights shall be exhibited, should not be utilized. On the other hand, Rule 27 speaks to the contrary – side and stern lights must be switched on. In addition, Rule 30 requires vessels at anchor to have the lights of an anchored vessel on – she must exhibit an all round white light. However, according to the same rule,30 vessel aground exhibits two all round red lights in addition to the white anchor light. Nonetheless, the vessel in the example even though not under command and at anchor, is not aground. In addition, the anchor regulations allow for all deck lights to be on. So, the vessel in the scenario is legally allowed to have her side lights on describing her as a vessel under way; her not under command and anchor lights showing to the nearby vessels that she is aground. Nevertheless, none of these contradicting descriptions is true for her. If one considers which lights are of greatest importance to the safety of the ship under the circumstances without leaving the oncoming vessels with a wrong impression, those should be the not under command and the anchor lights even though when combined they mean a vessel aground. May it be argued that the described vessel is not carrying the proper lights should a case involving her come before a court? It definitely can, but it is unlikely that such an argument would change the course of the court’s decision.

5. CONCLUSION This essay purported to explain certain of the weak sides of the COLREGS through examples and case law. Some of the issues referred to may never occur in a real life situation. Nevertheless, the whole discussion was directed towards demonstrating the need for reviewing and updating the rules. One may claim that everything said above is trivial and does not deserve any attention as there are more compelling issues to be decided. However, litigation is always based on aspects of law which are doubtful in their interpretation or there exist different pieces of legislation in conflict with each other.

BIBLIOGRAPHY: 30

R.30(d).

Legislation: Convention on the International Regulations for Preventing Collisions at Sea, 1972. Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1910. International Convention on the Safety Of Life At Sea, 1974. Caselaw: Crowley Marine Servs Inc v Maritrans Inc 447 F.3d, 2006 AMC 1246. Owners of S.S. Mendip Range v Radcliffe [1921] 1 A.C. 556. The 'Aleksandr Marinesko' and 'Quint Star' [1998] 1 Lloyd's Rep. 265. The “Antares II" and "Victory" [1996] 2 Lloyd's Rep. 482 at 498. The "Eglantine", "Credo" and "Inez” [1989] 1 Lloyd's Rep. 593. The "Maloja II" [1993] 1 Lloyd's Rep. 48. The "Nordic Ferry" [1991] 2 Lloyd's Rep. 591. The P. Caland [1893] A.C. 207.

Articles: Schoenbaum J, ‘ Collision and Marine Casualty’ in Admiralty and Maritime Law (4th ed) 2009 available on westlaw.org [accessed 03.03.2008].