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John Kavanagh[1]
Excessive speed is one of the main contributory factors in collisions between vessels at sea. An unsafe speed reduces the time available for mariners to assess a risk of collision situation, it reduces the time available to make considered decisions to avoid collision and it increases the damage that results from impact between vessels. The proliferation of vessels on the oceans of the world that are capable of very high speeds, including hovercraft, passenger/ vehicle catamarans and high speed container vessels, has increased the importance of the safe speed at sea issue.
The concept of a ‘safe speed’ is a relatively new one, being introduced for the first time into the collision regulations[2] by the 1972 International Convention for the Prevention of Collisions at Sea (‘the 1972 Rules’).[3] In the 1960 International Regulations for Preventing Collisions at Sea, (‘the 1960 Rules’)[4] that had been in force prior to that time, the only reference to speed was in rule 16(a), which stipulated a ‘moderate speed’ to be used in circumstances of restricted visibility.[5]
By contrast, Rule 6 of the 1972 Rules requires vessels to proceed at a safe speed at all times and applies in all conditions of visibility. Rule 6 prescribes many factors that need to be considered in determining a safe speed. But other rules, including Rules 2(a), 8(e), 17(a) & (b) and 19(b) also affect the determination of a safe speed.
This article examines the role that ‘safe speed’ plays in the 1972 International Regulations for the Prevention of Collisions at Sea. It does so by examining the case law and discerning the circumstances and conditions that are relevant to a court’s determination of a ‘safe speed’.
The article:
• puts the 1972 Rules in perspective by outlining the development of the collision regulations from their first expression in 1840 to the present day (Section 2);
• details the incorporation of the 1972 Rules into Australian law, at State and Commonwealth level (Section 3);
• examines the provisions of the 1972 Rules that deal with safe speed and the cases that have considered those provisions (Section 4); and
• considers the interplay between those provisions (Section 5).
The bias of this article is towards the decisions of the UK courts, although brief consideration will be given to the American ‘half-distance’ rule. This rule is commonly applied in the American Courts, but has failed to achieve similar approval in other jurisdictions.
Unfortunately, there is a complete lack of authority on safe speed from the Australian Courts.
There have been rules for safe navigation and avoidance of collisions for centuries, but before the 19th Century, these were rules of seamanship only and had no binding effect on mariners or courts of law.
It was not until 1840 that Trinity House promulgated a set of rules to be followed by mariners to avoid collisions: three rules for sailing ships and a further two rules for steamships.[6]
These new rules had no legislative force, but the English Admiralty Court took them into account when dealing with cases of collision at sea. In 1847, the rules were given statutory effect[7] and since that time they have been regularly reviewed, culminating in the latest version, the 1972 Rules.
The collision regulations increased in complexity throughout the 19th and 20th Centuries and, with the adoption of the 1972 Rules, contain special provisions for, inter alia, Traffic Separation Schemes, hovercraft, seaplanes and vessels constrained by their draught.
The 1972 Rules also contain many technical details including:
• the lights that must be displayed by different types of vessels in different circumstances;
• the requirements for sound signalling apparatus; and
• the 14 different ways of indicating that a vessel is in distress.
The 1972 Rules have been subsequently amended in 1981,[8] 1987,[9] 1989[10] and 1993.[11] These amendments were primarily technical and relate to Traffic Separation schemes and refinements to the lights, shapes and sound signals that are required to be displayed by vessels. The substantive provisions relating to safe speed remain unamended.
By the beginning of the 20th Century, the increased volume of sea-borne traffic led to an interest in maritime collisions that culminated in the 1910 Brussels Convention on Collisions and Salvage.[12] Australia became a party to this Convention in 1930 and it remains in force.
Whilst, the Brussels Convention did not amend the collision regulations directly, it did have an important effect on how the collision regulations were applied. It introduced, inter alia, three important reforms.
Firstly, the Brussels Convention removed any presumption of fault if a party to a collision was in breach of the collision regulations.[13] Before the Brussels Convention, breach of the collision regulations raised a presumption of fault against the vessel in breach, irrespective of whether the breach was causative of the collision.
The second reform was the introduction of proportional fault in collision cases. At common law, a contributorily negligent plaintiff could not recover from a negligent defendant.[14] In contrast, the English Court of Admiralty had for centuries provided for ‘divided damages’ in collision cases.[15] Divided damages, similar to the concept of general average, relied on the ‘common adventure’ spirit of maritime trade, whereby all the users of the ocean were expected to share equally in the benefits and burdens of sea-borne trade. In the case of divided damages, each shipowner involved in a collision was expected to pay half the loss of the other when both were at fault.
However, the Brussels Convention provides, in article 4, that the liability of each vessel is to be in proportion to the degree of the fault. This concept of proportional fault was incorporated into English law by the Maritime Conventions Act 1911[16] and into Australian law by s. 259 of the Navigation Act 1912 (Cwlth).
In addition to these substantial changes, the Brussels Convention also imposes a duty on the Masters of vessels involved in a collision to standby and render assistance to other vessels, their crew and passengers.[17] Previously, this duty had merely been a custom.
The 1972 Rules have been enacted at both Commonwealth and State level throughout Australia. This section details the incorporation of the Rules into Australian Law.
The International Maritime Organisation (IMO) is the United Nations organisation charged with improving the safety of life at sea and maritime standards generally. The more important international conventions that the IMO has promulgated include the Safety of Life at Sea Convention,[18] the STCW Convention[19] and Marpol 73/78.[20]
Similarly, the IMO was the driving force behind the 1972 International Convention for the Prevention of Collisions at Sea.[21] This Convention was adopted by Australia without reservation and entered into force (for Australia) on 29 February 1980.
At Commonwealth level, the Convention is given legislative effect by the Navigation Act 1912 (Cwlth). Section 258 of the Act (entitled ‘Collisions, lights and signals’) provides, inter alia, that the regulations may prescribe measures to prevent collisions at sea and that the regulations may give effect to the Prevention of Collisions Convention.[22] Section 6 of the Navigation Act provides that the term ‘Regulations’ includes orders made under the Act and the term ‘Prevention of Collisions Convention’ is also defined.[23]
Section 258 provides that the collision regulations (as provided in Marine Order Part 30) apply to all ships on the high seas, Australia’s territorial sea, the sea on the landward side of the territorial sea and waters not ‘waters of the sea’. Section 258(2E) provides that the Commonwealth law is not intended to exclude the operation of a State or Territory law from applying. Therefore, the Commonwealth enactment of the collision regulations is very wide, but does not impinge upon State enactments of the collision regulations where they overlap (in order to prevent inconsistency under s.109 of the Commonwealth Constitution).
Breach of the collision regulations is a criminal offence for which there is a fine and/or imprisonment.[24] Section 258(3) provides that a criminal conviction does not relieve the offender from any civil liability that may also follow for damages that flow from the breach of the Rules.
Marine Order Part 30, which is made under the authority of s.6 and 258(2) of the Navigation Act 1912 (Cwlth) contains, at present, the 1972 Rules without amendment.
Every State and Territory of Australia has incorporated the 1972 Rules into their law. The applicable enactments and regulations are set out at Section 10.5.
The 1972 Rules therefore apply to all vessels within State jurisdictions, that is, inland and coastal waters to the 3-mile limit. But even in the absence of any State enactment, s.258 of the Navigation Act 1912 (Cwlth), would operate to apply the 1972 Rules to coastal seas and inland waterways.
The requirement to proceed at a safe speed is therefore imposed upon all watercraft within all Australian jurisdictions.
The structure of the 1972 Rules is important in construing the individual Rules.
The 1972 Rules are divided into five parts, as follows:
• Part A – General. This part contains rules relating to the application of the 1972 Rules, the responsibilities of seafarers and the general definitions.
• Part B – Steering and Sailing Rules. This part contains rules relating to the navigation of vessels to avoid collision.
• Part C – Lights and Shapes. This part contains rules relating to the location and visibility of navigation (or ‘running’) lights and the circumstances when lights and shapes are displayed. The purpose of these rules is to ensure that a vessel’s nature, size and activities are indicated to other vessels.
• Part D – Sound and Light Signals. This part contains rules with respect to the light and sound signals to be displayed and made by vessels in various circumstances. It provides for the flashing of lights, the sounding of foghorns and other manoeuvring signals.
• Part E – Exemptions. This part details when vessels do not have to comply with the 1972 Rules. The exemptions primarily relate to the repositioning of lights on existing vessels to comply with the updated 1972 requirements.
The rules with respect to safe speed are contained in Part B – ‘Steering and Sailing Rules’. This Part is itself broken down into three sections to articulate when the different rules apply:
• Section I – Conduct of vessels in any condition of visibility (including Rules 6 and 8(e));
• Section II – Conduct of vessels in sight of one another (including Rule 17); and
• Section III – Conduct of vessels in restricted visibility (including Rule 19(b)).
It should be noted that the state of visibility, and whether or not vessels are in sight of one another, has been selected by the drafters of the 1972 Rules as the determinant for when the differing rules apply. It will be seen later in this paper that the state of visibility is a consideration of great importance in the assessment of a safe speed.
Rule 6 is the central provision with respect to safe speed and, because of its importance, is set out in full in the box.
Interestingly, the concept of a ‘safe speed’ was introduced by this Rule.[25] Prior to the introduction of the 1972 Rules, there was no mention of the term ‘safe speed’. However, the 1960 Rules did refer to a ‘moderate speed’; at Rule 16(a), they required:
Every vessel…in fog, mist, falling snow, heavy rainstorms or any other condition similarly restricting visibility, [to] go at a moderate speed, having careful regard to the existing circumstances and conditions.[26] [Emphasis added.]
PART B
STEERING AND SAILING RULES
SECTION I - CONDUCT OF VESSELS IN ANY CONDITION OF VISIBILITY
Rule 6
Safe speed
Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
In determining a safe speed the following factors shall be among those taken into account:
(a) By all vessels:
(i) the state of visibility;
(ii) the traffic density including concentrations of fishing vessels or any other vessels;
(iii) the manoeuvrability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions;
(iv) at night the presence of background light such as from shore lights or from backscatter of her own lights;
(v) the state of wind, sea and current, and the proximity of navigational hazards;
(vi) the draught in relation to the available depth of water.
(b) Additionally, by vessels with operational radar:
(i) the characteristics, efficiency and limitations of the radar equipment;
(ii) any constraints imposed by the radar range scale in use;
(iii) the effect on radar detection of the sea state, weather and other sources of interference;
(iv) the possibility that small vessels, ice and other floating objects may not be detected by radar at an adequate range;
(v) the number, location and movement of vessels detected by radar;
(vi) the more exact assessment of the visibility that may be possible when radar is used to determine the range of vessels or other objects in the vicinity. [Emphasis added.]
The focus of the rule was to require mariners to slow when visibility was poor, and the requirement was only operative in such conditions.
By contrast, Rule 6 of the 1972 Rules requires mariners to proceed at a safe speed at all times. The rule contains a number of factors that must be considered when assessing the vessel’s speed to determine if it is ‘safe’. In this way, the relevant circumstances, including the prevailing visibility,[27] are taken into account.
The elements of Rule 6 are considered in more detail below.
The phrase ‘proper and effective action to avoid collision’ refers to the effect speed has upon the options for a vessel to avoid collision. It may take a modern, large oil tanker of 240,000 deadweight tonnes more than 20 minutes and up to 3 miles to stop from the moment that the engines are put astern.[28] If a vessel is travelling at full speed in a close quarters situation, the only practical option is to manoeuvre (alter course). Reducing speed at the last is usually ‘too little too late’.
Therefore, an unsafe speed usually means travelling too fast. But there may be such a thing as a speed that is too slow to be safe. It is at least arguable that a vessel stopped or drifting in the water (without its engines ready for manoeuvre) is not travelling at a safe speed. A vessel starting from stopped takes time to develop forward motion and manoeuvring speed. If a risk of collision develops, the drifting vessel may not be able to take ‘proper and effective action to avoid collision’. Therefore, it is suggested that a vessel stopped in the water may not, in these circumstances, be proceeding at a safe speed.
The phrase ‘stopped within a distance appropriate to the prevailing circumstances’ refers to the stopping distance of the vessel with respect to the prevailing visibility and other circumstances that affect a safe speed. As a general rule of thumb, mariners compare the range of the prevailing visibility to the stopping distance of the vessel. If the vessel can be stopped with half the distance of the visibility, then subject to the other prevailing circumstances and conditions, they are proceeding at a safe speed.
This rule of thumb has been adopted by the American Courts as a guiding principle. Known as the ‘half visibility’ rule, it is used by the Courts to determine whether a speed is safe in the circumstances. In Woodford v. Carolina Power and Light Company,[29] the trial judge found that Rule 6 of the 1972 Rules requires:
…a vessel, in order to be travelling at a safe speed,…[to] be able to stop within one-half the distance of visibility forward from her bow: Williamson Leasing Co. v. American Commercial Lines, Inc., 616 F.Supp. 1330, 1340 (E.D. La. 1985). The reason for the one-half-sight distance is to allow a vessel coming from the opposite direction an equal stopping distance, thus avoiding a collision.
In that case, a powerboat carrying three sport fishermen collided with an unlit power tower owned by the defendant company. The tower was a known hazard in the lake and the plaintiff had personal knowledge of its presence and location. The plaintiff and his passengers had launched their boat at 3 am to obtain the best ‘hot spot’ for the day’s competition fishing. The night was very dark as there was no moon and the plaintiff’s vessel was travelling at over 30 knots at the time of the collision.
The Court held the plaintiff 95% responsible for the collision for his failure to proceed at a safe speed. Although the Court found that the accident would probably not have occurred if the tower had been properly lit, the primary fault was the plaintiff’s failure to proceed at a safe speed.
The primary difficulty of the ‘half visibility’ rule is evidentiary. The range of visibility is not only difficult to measure, but may also differ for different objects. For example, in Woodford, the night was dark, but there were no other impediments to vision. The plaintiff was able to navigate by reference to distant shore lights, but could not see the much closer unlit tower. What was the prevailing visibility range in the circumstances?
The court in Woodford preferred to gloss over these evidentiary and theoretical difficulties by invoking the half visibility rule. The court concluded, with some justification, that the plaintiff was travelling too fast in the circumstances. However, no mention was made of what a safe speed might have been, how the manoeuvring characteristics of the plaintiff’s vessel might have affected that assessment or what the visibility range was when the conditions were clear, but the tower was all but invisible.
The utility of the half visibility rule must be limited if a visibility range cannot be satisfactorily determined in all circumstances.
Another criticism of the American ‘half visibility’ rule is that it fails to consider the totality of the circumstances to which Rule 6 refers. Although the half visibility rule is undoubtedly useful as a practical guide (as well as being intuitively satisfying), the prevailing visibility is but one of the circumstances to be considered when determining a safe speed. The ‘half visibility’ rule gives the visibility factor priority over the other enumerated factors when that may not be appropriate in all circumstances.
In Woodford, priority was given to the visibility factor,[30] when it is arguable that the proximity of navigational hazards[31] and the presence of background lights[32] were more important in the circumstances. The night was clear and the plaintiff was aware that the tower was a navigational hazard in the immediate vicinity. The adoption of the ‘half visibility’ rule as a starting point for the determination of a safe speed fails to give these other factors the recognition that they might otherwise have deserved in the circumstances.
In the writer’s view the half visibility rule should not be adopted as a starting point for assessing a safe speed.
Nevertheless, the state of visibility remains the single most important circumstance warranting a review of the speed of a vessel. Restricted visibility is a most awkward situation for the navigator, as the difficulty of assessing the risk of collision is multiplied when unable to see other vessels. Even with modern navigational aids, such as radar, the location, course and speed of vessels that are not visible are difficult to assess. Without operational radar and other aids, assessing the risk of collision becomes mere guesswork, and proceeding at a safe speed assumes even greater importance.
For example, in the Aleksander Marinesko and the Quint Star,[33] a collision between the two vessels occurred in the early hours of the morning in thick fog in the Taiwan Strait. The young Second Officer on the Quint Star failed to take the usual preventative measures necessitated by the weather and required by the 1972 Rules, such as sounding the appropriate fog signal and putting the main engines on standby for immediate manoeuvre. He had wrongly presumed from the radar echo of the Aleksander Marinesko that the other vessel was going to pass safely down the port side. Both vessels were steaming at full speed when the collision occurred.
The nautical assessors assisting the court found that the ships involved should have drastically reduced speed when it was apparent that a close quarters situation was developing. The Second Officer of the Quint Star should not have been satisfied with a passing distance of less than half a mile in the circumstances of restricted visibility. A reduction in the speed of both vessels would have allowed more time for assessment of the situation and to build a radar plot of the correct, risk of collision, situation.
Fishing fleets often keep close company and can constitute an almost impenetrable obstacle to larger vessels. When vessels are navigating near such concentrations of fishing vessels, the manoeuvring options available are effectively limited and regard should be had to the speed at which the vessel is travelling.
In the Sanshin Victory,[34] a collision occurred in restricted visibility off the Korean Coast. Both vessels had maintained full speed despite visibility of less than 300 yards and the presence of fishing vessels within close proximity (between 1 and 2 miles). The Sanshin Victory was aware of the risk of collision, and altered course to starboard (but failed to reduce speed). However, the presence of a concentration of fishing vessels on her starboard side reduced the size of the course alteration to an inadequate 3 degrees. As Clarke J dryly observed, ‘[t]he presence of fishing vessels… not less than one mile away did not prevent Sanshin Victory from altering course 25 degrees, or even 180 degrees’,[35] once collision was imminent. His Honour was referring to the very large alterations of course that were made by the Sanshin Victory in a vain effort to avoid collision moments before impact.
The Sanshin Victory did not slow her speed until 5 minutes before collision and the Court found that action was inadequate in the circumstances. The Trinity Masters had found that a safe speed for both vessels was around 7½ knots, provided other conditions, such as efficient lookout, were met. Reducing speed to slow ahead, which the Sanshin Victory had done, would only have reduced the speed to 8.4 knots over time. In the event, the Sanshin Victory was still making 8.9 knots at the point of collision.
Vessels often have ‘manoeuvring diagrams’ posted in the wheelhouse which indicate its handling characteristics. The self-evident purpose is to allow watchkeeping officers to familiarize themselves with the handling characteristics of their vessels. This is most important when navigating in narrow channels.
In the Antares II and the Victory,[36] a collision occurred mid-channel in the ‘Lynn Cut’ of the Great Ouse River. The Victory was a coastal freighter exiting the river under pilotage and the Antares II was a small fishing vessel returning from sea with a large catch. The night was clear and both vessels saw each other at a distance of 2 miles, with ample time to manoeuvre. The Victory was proceeding at 10 knots and the Antares II at between 4 and 5 knots.
The Victory was held to be 75% at fault for the collision for failing to slow down. Mr Brice QC saying, ‘I am quite certain that what gave rise to danger in the present case was Victory proceeding down channel at speed’.[37] With respect to manoeuvrability, His Honour said:
I have in mind the favourable comments of Captain Williamson on the manoeuvrability of Victory on the occasions when he piloted her. In any event, given the narrowness of the channel, a safe passing was best ensured by both vessels proceeding at slow speed and passing clear port to port.[38]
It would appear that the Victory’s manoeuvrability may have warranted a higher safe speed than for a less manoeuvrable vessel when proceeding down channel, but this advantage was lost when those in control of her failed to reduce speed when a close passing situation eventuated. Thus, the concept of a safe speed is a fluid one that must adapt to changing circumstances.
The importance of the manoeuvring characteristics of the vessel in assessing safe speed was also emphasised in the Da Ye.[39] In that case, a general cargo vessel was steaming at full speed in conditions of restricted visibility through a crowded anchorage. Prefacing his reasons, Sheen J said:
In making an appreciation of the facts which led to this collision it is very important to bear in mind the substantial difference between the characteristics of the two ships…Popov was the smaller ship. She has fine lines and is highly manoeuvrable because of her twin screws and twin rudders. Da Ye was substantially larger, being 40 metres longer, 12 metres greater in beam and about 3.3 metres more in draught. By reason of her substantially greater displacement and her single screw and rudder Da Ye’s manoeuvring characteristics made it imperative that she was navigated at a safe speed at all times.[40] [Emphasis added.]
The Popov was proceeding at a ‘safe’ speed of 6 knots at the time of collision. In contrast, the Da Ye’s speed of 14 knots was found to be excessive in the circumstances (with special reference to her manoeuvring characteristics) and was held to be 80% to blame for the collision.
There are two distinct considerations in this element. The first refers to the presence of background lights as a matter to be taken into account when considering a safe speed.
Background lights may obscure and confuse the navigation lights of other vessels. This was seen as relevant by Sheen J in the Coral I.[41] In that case, a vessel proceeding at excessive speed through an anchorage collided with an anchored vessel. It was dark and there was a background of lights from ships at anchor. His Honour said:
[F]rom the point of view of visibility, [the other vessel] would have had the advantage of having a solid black background provided by the superstructure of Coral I. After passing the ship at anchor to starboard there would have been, for several minutes, no distraction from other lights and nothing to obscure the anchor light of Coral I.[42]
In other words, for a critical period before the collision, there was an absence of background lights, which should have given the navigators an opportunity to assess the situation. Implicit is the consideration that the presence of background lights can confuse the situation, requiring an appropriate reduction in speed.
The issue of shore lights was also discussed in Woodford.[43] In that case, the helmsman of the powerboat was distracted by the distant shore lights (which he was relying upon for navigation purposes) so that he failed to see the tower in the lake until seconds before impact. The trial judge selected this factor as relevant to his determination of whether a speed of 30 knots was safe in the circumstances.
The second consideration is that in conditions of restricted visibility, a vessel’s own lights may be reflected back and thereby obscure the lights of an oncoming vessel. In those circumstances, a re-assessment of the vessel’s speed is appropriate.
The prevailing weather conditions are an important consideration in the determination of a safe speed. In the Navios Enterprise and the Puritan,[44] the two vessels involved were struggling off the Florida coastline in atrocious conditions generated by Hurricane Andrew. The wind was gusting up to 140 knots, the seas were described as ‘phenomenal’ (with 15 metre high waves) and the air was filled with foam and spray reducing visibility to nought.
The Puritan lost the use of her main engines due to the presence of sediment in her lubricating oil and she commenced drifting. However, the Navios Enterprise failed to appreciate the Puritan’s hampered condition and actually increased her speed immediately before the collision.
In his judgement, Rix J considered the failure of the Navios Enterprise to proceed at a safe speed as causative of the collision:
…[T]he decision should have been to reduce speed. That is what the Collision Regulations required (e.g. rr. 6 and 19). It would have assisted the hurricane’s tendency to take Navios Enterprise away to the north, out of harm’s way. It would have given more time: as things turned out, Puritan’s engines were already back to work shortly before the collision. In principle, it was likely to ameliorate any damage in the event of collision (as it was, but it was largely fortuitous, Navios Enterprise struck only glancing blows in the collision). The only argument against the standard, recommended, and safer course of reducing speed was Captain Rupert’s insistence that it would not have been safe for Navios Enterprise herself to have slackened speed, for fear of losing steerage way. However, this fear was overstated.[45]
In other words, the possible loss of steerage way could not be used to justify an excessive speed in the weather conditions.
The Sanwa and Choyang Star[46] records a collision between a container ship and a vehicle carrier in the Northern approaches to the Suez Canal. It is a good example of a collision occurring due to excessive speed in an area close to navigational hazards. The Suez Canal is operated by the Suez Canal Authority and the Suez Canal Rules (known as ‘SCARN’, the Suez Canal Authority’s Rules for Navigation) apply together with the collision regulations. It is usual for vessels to proceed through the canal in convoys, with north bound convoys proceeding along the eastern channel and southbound convoys proceeding along the western channel.
However, in this instance, the western channel was blocked, so the north-bound Choyang Star was directed to exit the canal through the eastern channel. Unfortunately, and without notice to the Choyang Star, the Sanwa was directed to raise her anchor and join a south-bound convoy also entering the same section of the eastern channel. It was against the rules of SCARN and outside the experience of the Masters of both vessels for convoys to pass in the same channel.
The Choyang Star was proceeding at full sea speed (around 14 knots) and the Sanwa at around 8 knots. The visibility was clear and the weather moderate. The Sanwa expected the Choyang Star to alter course to port and enter the western channel. The result of this mistaken expectation was that they collided near the western edge of the eastern channel. The Choyang Star was held to be seriously at fault for failing to reduce her speed when approaching the Sanwa. In fact, she was still working her speed up to full sea speed of 16 knots. It was held that the Choyang Star should have reduced her speed before entering the channel and should have gone astern much earlier than she did.
The value of the decision in terms of safe speed is that when navigating in confined waters (with navigational hazards in close proximity), and when risk of collision is present, speed should be reduced at an early point. The Choyang Star was seriously at fault for increasing her speed in circumstances when her options for manoeuvre were restricted.
The draught of a vessel has a significant impact on its possible manoeuvrability and is therefore a relevant consideration when determining safe speed. In particular, lack of water depth with respect to a vessel’s draught can limit her range of manoeuvrability and her speed should be reduced to accommodate this restriction.
Conversely, a deep draught (and possible restrictions on manoeuvrability) cannot be used to justify a failure to reduce speed. The Skyron[47] was a deep draught vessel and was displaying the lights that indicated her ‘special’ status. She was proceeding on the approved ‘deep draught route’ in the North Sea as indicated on the chart when she collided with a smaller vessel. Clarke J criticised her for failing to take any action, saying:
Although she was a deep drafted vessel…she could and should have reduced speed so as to be proceeding at about 5 knots through the water when the vessels were about 3 miles apart.[48]
Given that the Skyron was actually proceeding at 12.5 knots at the time of collision, her speed was manifestly unsafe.
The factors to be considered when determining a safe speed (as discussed above) are neither complex or contentious. But it is apparent from the case law that the courts view a failure to consider the Rule 6 factors, and reduce speed appropriately, as a serious breach of the obligations imposed by the 1972 Rules.
The innovation and widespread availability of radar has led to a revolution in seafaring practices. Mariners can now detect, with some reliability, other vessels, coastlines and navigational hazards (such as icebergs and surface reefs) long before they become visible to the eye. Most importantly, radar gives mariners the opportunity to ‘see’ through fog and other conditions of restricted visibility.
However, radar is only a tool and it requires skilled operation to be effective. The factors enumerated in Rule 6(b) instruct mariners (and the courts) as to the circumstances when possession of an operational radar alone is not sufficient to justify proceeding at full speed.
The quality of the radar lookout is a critical factor. Mr Justice Sheen drew attention to this in the Sanshin Victory[49] when he said:
The wording of rule 6 makes it clear that in judging what speed is a safe speed, much depends upon the efficiency of the Bridge watch and lookout. Accurate reading of the radar picture and efficient interpretation of the information obtained therefrom are important elements in the maintenance of an efficient bridge watch.[50]
In that case, both vessels were proceeding at full speed, in circumstances when the visibility was less than 300 yards, there were a number of fishing vessels in the immediate vicinity and the radar lookout was less than efficient.
The other point that should be made is that, where fitted and operational, radar should be used to assess the risk of collision. In the Antares II,[51] one of the causative factors (along with excessive speed) was confusion over the position of the vessels in the channel. The radar set on the Victory was operating on the ½ mile range scale (arguably too short to be of use in any case), but was also not being used. In the event, the assessment of the other vessel’s position in the channel was erroneous, the speed was too great to allow a safe passing and a collision resulted. The proper use of radar would have clarified the position of the other vessel and arguably, a safe speed adopted accordingly.
The factors to be considered when assessing a safe speed with operational radar are explored below in detail.
The characteristics and limitations of the particular radar set in use are important to consider when relying upon the information supplied. There are two common bandwidths used for radar sets on merchant vessels and each has differing characteristics.
The 3 cm bandwidth is better suited to detecting small and low-lying objects, but is more easily affected by meteorological conditions. By contrast, the 10 cm bandwidth has better propagation properties through rain and fog, but is less sensitive to small vessels and objects.
Aside from the limitations of the bandwidth, the siting of a radar set on a particular vessel may lead to shadow and blind sectors (due to the presence of funnels, cranes or other ship structures), within which detection of other vessels may be difficult or impossible.
The meaning of the phrase ‘characteristics, efficiency and limitations of the radar equipment’ was considered by Sheen J in the Maritime Harmony,[52] where His Honour said:
It seems to me that in determining what is a safe speed in conditions of reduced visibility the correct approach is to start with a consideration of those factors specifically mentioned in par. (a) of r. 6 and to determine what is a safe speed for the particular vessel in those conditions. Then, if it is sought to justify a higher speed by reason of the characteristics, efficiency and limitations of the radar equipment, it must be shown that proper use was being made of the radar equipment so that such higher speed can properly be regarded as safe. Maritime Harmony was fitted with two radar sets, both of which were in working order. Pilot Driessche was making intermittent use of radar, but no proper radar watch was being maintained. The third officer was instructed to keep a look-out on the port bridge wing. Having regard to the extent of the visibility he would have been employed more usefully keeping a radar watch.
Maritime Harmony was not maintaining a proper or efficient radar watch. Accordingly, in my judgment she cannot justify a speed greater than five knots. Her speed of 8½ knots was not a safe speed.[53] [Emphasis added.]
The comments in this case are directed towards the justification of a higher speed than would otherwise be considered safe because of the presence of radar. Obviously, the use of radar to proceed at a higher speed can only be justified when an efficient radar lookout is being kept.
This factor refers to the limits imposed by the particular range scale in use. For example, if the radar is set to the 6-mile range scale, then only those vessels within 6 miles will be tracked. However, those vessels may be plotted with some degree of precision and the risk of collision may be assessed with greater confidence.
In contrast, a radar set placed on the 24-mile range scale will provide ample advance warning of collision, but will not allow accurate plotting of vessels that are much closer. This is one of the reasons for most ships being fitted with two radar sets. When entering conditions of restricted visibility, both sets should be switched on (if not operating already) and set to different range scales. One set will be used for longer range scanning, and the other set used for plotting the risk of collision for vessels that are much closer.
In the Quint Star[54] for example, the Second Officer’s evidence was that he had both radars operating in the thick fog conditions, with one on the 12-mile range scale and the other on the 6-mile range scale. Although his evidence was challenged for its truthfulness,[55] the court accepted the importance of using differing range scales for the proper assessment of safe speed.
It is not commonly known that meteorological conditions have a profound impact upon the effectiveness of radar. Clouds, rain, dust storms and snow all have a deleterious effect upon radar detection. This is also true for the sea state: large waves will return echoes to the transmitter which appear on the radar screen. Radars will often assume a ‘snowy’ appearance in conditions of restricted visibility and rough weather, ironically at the time when they are most needed.
This phenomenon is referred to as ‘clutter’ and the case law often contain references to the effect of clutter on radar detection.
Some examples include:
When the range had closed to about two or three miles each ship navigated effectively blind; one because of clutter on the radar screen, the other because of a failure to watch the radar.[56]
I am advised by the nautical assessors that observation of a false echo may in circumstances be interpreted by the ARPA system which may produce a spurious course and speed. Such a situation may arise if for example the echo is that of wave tops or other ‘clutter’.[57]
‘I lost the echo on the radar at 0.5 miles due to clutter.’[58]
It is crucial in circumstances when radar detection is being affected, that vessels proceed at a safe speed so that they have time to respond to a collision situation when another vessel ‘looms out of the fog’. It is in these circumstances that the American ‘half visibility’ rule asserts its practical value.
There is always a possibility that small boats, yachts, floating objects (such as containers that have fallen overboard), and ice may not be detected by radar at an adequate range or at all. As consideration of ‘clutter’ has shown, the echo of even large vessels may disappear into the interference on the radar screen. This is an even greater problem when the radar echo may be negligible to begin with.
Consequently, in circumstances where reliance is placed on radar to avoid collision, the vessel should be proceeding at a speed slow enough to allow a reaction to the visual sighting of such small objects.
The number of vessels that are detected on radar also has a bearing on the speed at which a vessel should be proceeding. A greater number of vessels require more time to plot their movement and more time to assess the results of the plotting.
Radar plotting of detected vessels is usually necessary. This involves the manual marking of the vessel’s echo on the radar screen. A large number of detected vessels can make accurate plotting a time consuming task and there is a limit to the number of vessels that may be manually plotted. Although automatic plotting aids (known as ARPA) have assisted in this regard, it is still necessary to have time to assess the movement of vessels.
These considerations are paramount when approaching the vicinity of a concentration of vessels. Accurate plotting and proper assessment of the location and movement of the vessels requires time and therefore a reduction in speed is appropriate.
A striking example of the consequences of failing to properly consider this factor is provided by the Da Ye.[59] In that case, the Da Ye was proceeding at full sea speed (14 knots) through a crowded anchorage in conditions where visibility was reduced to less than a mile. The number and location of the vessels already at anchor and proceeding slowly through the anchorage was not appreciated by the watchkeepers on the Da Ye.
There was evidence to suggest that the Da Ye had failed to detect a Maltese vessel already at anchor (and which the Da Ye’s course line would have passed through) until the last possible moment. This prompted the Master of the Da Ye to alter course boldly to starboard, which action resulted in a collision situation developing with another vessel. Once again, the Master of the Da Ye misjudged the situation and, believing the second vessel was also at anchor, failed to alter course or reduce speed until collision was inevitable.
Sheen J held that a proper speed in the circumstances was around 6 knots and said:
Captain Zhu [of the Da Ye] gave…evidence for the purpose of concealing the fact that he had not observed Popov on his radar…Apparently he [also] did not see, as he ought to have seen, [the Maltese] vessel at anchor ahead either visually or on radar. He thought that the way ahead was clear. Accordingly, he continued at full speed ahead…The sighting of the Maltese ship is the only credible explanation for the disastrous turn to starboard made by Da Ye. If she had not turned to starboard there could not have been a collision. The two ships would have passed starboard to starboard. But in truth Da Ye could not maintain her course because of the presence of the Maltese ship which until then had been undetected.
If the Da Ye had been proceeding at a safe speed, she could have conducted a proper assessment by radar of the movement and location of the vessels in the anchorage. She would not have been surprised by the Maltese vessel and would also have known the speed and course of the Popov.
The utility of radar is not limited to detecting and tracking the movements of other vessels. When combined with an efficient visual lookout, the use of radar can assist the mariner in determining the current state of visibility. The following extract from the Skyron,[60] demonstrates how radar may be used in this fashion:
…the chief officer checked the distance and bearing of the echo of the SKYRON. When it was distant about 5 miles…[h]e says that he thought that he could see 2 white masthead lights…He says that he plotted her echo on the radar and concluded that she would pass about 4 cables astern of his vessel.
Thereafter the chief officer appreciated that the visibility had reduced because he was not able to see any of the other vessels…He thought that the distance was about 2.5 miles but he was not able to judge that visually. He says that he was continually plotting the echo of the SKYRON on the radar screen, erasing it and plotting it again….[61] [Emphasis added.]
Unfortunately, in this instance, the Chief Officer failed to act by reducing speed or altering course until the other vessel (the Hel) loomed out of the fog and collision was unavoidable.
The factors to consider in determining a safe speed when relying upon radar emphasise that radar cannot be used to justify maintaining full speed in any but the best of conditions. As Rule 6(b)(iv) makes clear, there is always a possibility that radar will fail to detect objects at an adequate range (if at all) and so radar of itself cannot usually justify a higher speed.
Rule 2 is contained in Part A ‘General’ of the 1972 Rules. It is entitled ‘Responsibility’ and has two limbs. For the purposes of this article, Rule 2(a) is relevant and it provides:
(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
The primary import of this Rule is that the 1972 Rules cannot be used as justification for departing from the dictates of good seamanship or the special circumstances of the case. It is otherwise known as the ‘good seamanship’ rule[62] and operates as an overriding consideration in the interpretation of the 1972 Rules.
In Elenson v. SS Fortaleza,[63] it was said by the United States District Court that Rule 2 requires:
…vessels to observe general standards of good seamanship, observance of the ‘precaution which may be required by the ordinary practice of seamen.’ Thus liability may be imposed for negligence even when no violation of the rules is found. Rote observance of a rule will not necessarily excuse responsibility for a collision. Even a vessel with the right of way must take action to avoid a collision if it has the opportunity. T. Schoenbaum, Admiralty and Maritime Law 449 (1987).
Good seamanship includes, among other things, taking the best possible actions to avoid collision and taking action to mitigate the effects of the collision.[64]
Proceeding at a safe speed would clearly fall within the dictates of good seamanship for the purposes of Rule 2(a).
It was also said in the Prestigous,[65] that:
Apart from the violation of specific rules I have concluded that the Prestigious failed to act in a reasonable way and neglected to take precautions required by the circumstances, a general obligation which remained on it by Rule 2(a).[66]
In that case, a collision resulted in the St. Lawrence Seaway when a vessel travelling at an unsafe speed attempted to overtake another. The Canadian Federal Court went on to say (in a different context):
It is clear from Rule 2(a) that whether or not the Rules are complied with a vessel is not exonerated from the consequences of any neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
Rule 2(a) is therefore a ‘catch all’ provision designed to import the practices of good seamanship into the 1972 Rules. The relevance for safe speed purposes is that where the dictates of good seamanship require a vessel to reduce speed, then she should do so, notwithstanding the other provisions of the 1972 Rules that may apply, including Rule 6.
Rule 8 is entitled ‘Action to avoid collision’ and exhorts the mariner to take early, substantial and effective action to avoid collision. The full text of Rule 8 is provided at Section 8.2.
For the purposes of this article, Rule 8(e) is directly concerned with safe speed. That Rule provides:
If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.
The important point is that the slackening of speed or taking all way off will increase the time available for assessment of the situation and increase the likelihood that a correct decision will be made to avoid collision. In the Maloja II,[67] both nautical assessors that were assisting the court considered that the John M should have slackened her speed so as to provide her with more time to assess the situation.
In Woodford,[68] the court found that the obligation to stop imposed by Rule 8(e) is of primary importance:
The ability to see where one is going is at the heart of the admiralty rules of the road. Indeed, lacking that ability the captain of a vessel is under a duty to stop. Rule 8(e): Williamson Leasing Co. v. American Commercial Lines, Inc., 616 F.Supp. 1330, 1340 (E.D. La. 1985).
Therefore, where risk of collision exists, a vessel must slacken her speed or take all way off in order to assess the situation.
Rule 17, entitled ‘action by stand on vessel’, is contained in section II of Part B of the 1972 rules. Section II governs the actions of vessels when they are in sight of one another. The full text is located at Section 8.3.
When two vessels are approaching each other in a crossing situation such that risk of collision exists, then one vessel becomes the ‘stand on’ vessel and the other the ‘give way’ vessel. Rule 17 governs the actions permitted to the stand on vessel.
Rule 17(a)(i) provides that the stand on vessel must maintain her course and speed. The rationale of the rule is that the give way vessel may act with confidence in taking action to avoid collision, knowing that the stand on vessel will not take any action that may embarrass it. However, that is not the end of the matter.
By the terms of Rule 17(a)(ii), the stand on vessel may take action by her manoeuvre alone if the give way vessel fails to take appropriate action. It is still apparent that the stand on vessel must maintain her speed in these circumstances.
By the terms of Rule 17(b), the stand on vessel may take any action that will best avoid collision when the action of the give way vessel alone will not avoid collision. This provision impliedly permits the alteration of speed for the stand on vessel, but only at the last moment before collision.
On one view of it, Rule 17 requires the stand on vessel to maintain her speed until the last moment before collision is inevitable. This appears to be so even though, by the terms of Rule 6 and Rule 8(e), her speed may have become unsafe in the circumstances.
However, the better (although untested) view is that Rule 2(a) would operate to permit appropriate reductions of speed in a seamanlike manner (and in accordance with Rules 6 and 8(e)). The effect of Rule 2 is to override particular provisions of the rules if the precautions of good seamanship require it. Rule 2 does this by not permitting a defence based upon the exact compliance with the Rules. In other words, pleading that Rule 17 required a vessel to maintain her speed, when that speed had become unsafe in the circumstances, would not reduce her liability in a subsequent collision.
Rule 19 deals with the extremely important situation of restricted visibility and only applies when vessels are not in sight of one another. Safe speed is addressed at Rule 19(b), which relevantly provides:
(b) Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate manoeuvre. [Emphasis added.]
Strictly speaking, the requirements of Rule 19(b) are unnecessary as Rule 6 applies at all times, including conditions of restricted visibility. However, the repetition of the safe speed requirement serves to emphasise the importance of proceeding at a safe speed when visibility is affected. The rule also adds the requirement for vessels to have their engines ready for immediate manoeuvre.
Despite this emphasis, the case law is replete with examples of collisions where both vessels were equally to blame in failing to reduce their speed.
In the Skyron,[69] both vessels were proceeding at maximum sea speed at the point of impact. The Skyron was a VLCC[70] proceeding on a loaded voyage at 12.5 knots. The Hel was a more manoeuvrable general freighter proceeding at 16 knots. Clarke J criticised both vessels for their failure to comply with Rule 19(b):
They were both proceeding too fast. It is true that a safe speed for the HEL was greater than that for the SKYRON but that is because of the relative size and manoeuvrability of the two vessels…The HEL could however only justify a faster speed than the SKYRON if she took positive early action to reduce her speed when necessary, which she did not…In fact neither vessel reduced her speed before the collision. They were thus both seriously at fault so far as speed was concerned.[71]
In the Choyang Star,[72] the Second Officer in charge of the watch not only failed to reduce speed, but also breached Rule 19(b) by failing to place the engines on standby for immediate manoeuvre.
The provisions of Rule 19 with respect to safe speed serve to underline the importance of visibility to the assessment of a safe speed.
In practice, the use of safe speed in the 1972 Rules is a multi-layered exercise. Many of the rules intersect and the circumstances may be complex. In the Maloja II,[73] a collision occurred off the coast of Newfoundland between two bulk carriers in restricted visibility. Neither vessel slowed from their maximum speeds of 14 knots, despite the visibility reducing to 0.6 or 0.7 of a mile. The interplay of the Rules may be seen in the following passage of expert advice on the speed of the two vessels, the John M and the Maloja II.
Captain Woodfield
A. When three miles apart JOHN M should have paid due regard to the prevailing circumstances and conditions of the restricted visibility as required by Rule 19(b), and proceeded at a safe speed in accordance with Rule 6(b) and ultimately in accordance with Rule 8(e) slackened her speed by taking most of her way off…
…In practice she should have reduced speed drastically by putting her engines astern until her speed through the water was such that only steerage way was being maintained. Then gone ahead on engines to maintain such a speed to feel her way past the other vessel until all danger was clear. Further and better use of radar should have been made and better lookout taken.
B. MALOJA II should have kept a proper watch on her radar and utilized the observations; and navigated with caution at a safe speed until all danger of collision was past in accordance with Rules 19(c) and 8(e).
In practice, she should have reduced speed to little more than steerage way and felt her way past the other vessel.
In the event, each vessel was found to be 50% liable for the other vessel’s damage.
This passage serves to emphasise the interplay between and the relative importance of the various rules that determine a safe speed.
Since its introduction into the 1972 Rules, the concept of a safe speed has been considered often by the Courts as a causative factor in collisions. As this article has demonstrated, safe speed is considered to be a serious breach of the 1972 rules and is an important element in determining the relative liability of the vessels involved. Despite its relatively brief existence, the concept of safe speed has become one of the underlying principles of the 1972 Rules.
When determining a safe speed, the primary consideration is visibility. It is listed first in the factors to be considered under Rule 6(a) and is repeated at Rule 19(b). The American Courts have given visibility pre-eminence by elevating the ‘half-distance’ rule to the status of a legal principle.
However, other factors are involved in the determination of a safe speed and even in clear weather, a continuous assessment of a vessel’s speed is required by Rule 6.
When risk of collision exists, Rule 8(e) operates to emphasise the importance of reducing speed to allow time to assess a dangerous situation. Further, Rule 2(a) prevents an artificial reliance upon the rules (such as rule 17) to justify an unsafe speed.
The overall effect is to require vessels to review their circumstances and reassess their speed whenever those circumstances change. The speed of a vessel is often the first and certainly one of the most important factors considered by the courts.
Buzek, F.J. & Holdert, H.M.C., 1990, Collision Cases: Judgements and Diagrams, 2nd edn, Lloyds of London Press, London.
Gault, S., Hazelwood, S.J., Plant, G., & Tettenborn, A., (eds), 1998, Marsden on Collisions at Sea, 12th edn, Sweet & Maxwell, London.
Mankabady, S., 1987, The Law of Collision at Sea, Elseiver Science Publishers B.V., Amsterdam.
School of Nautical Studies, June 1992, Command Navigation II: Collision Avoidance at Sea, Australian Maritime College, Launceston, p. 12.
Sturt, R.H.B., 1991, The Collision Regulations, Lloyd’s of London Press, London.
Tetley, W., ‘Division of Collision Damages: Common Law, Civil Law, Maritime Law and Conflicts of Law’, 16 Mar. Law. 263.
Brown, R.H., ‘Collision Liabilities between Shipowners’, 8 Mar. Law. 69.
Minkin, J.P. (ed.), ‘Collision Survey 1997-99: Survey of Collision Decisions in the Federal and State Courts’, 23 Mar.Law. 661.
Abston, J.B. & Kunz, D.R. (eds), ‘Collision Survey 1988: Survey of Reported Decisions in the Federal Courts’, 13 Mar. Law.355.
International Convention for the Unification of certain Rules of Law respecting: (1) Collisions between Vessels; and (2) Assistance and Salvage at Sea, Brussels, 23 September 1910, Australian Treaty Series 1930 No. 14.
International Regulations for Preventing Collisions at Sea, London, 17 June 1960, Australian Treaty Series 1967 No. 7.
Convention on the International Regulations for Preventing Collisions at Sea, 1972, London, 20 October 1972, Australian Treaty Series 1980 No. 5.
Algoma Central Corporation v. The ship ‘Prestigous’ 1994 AMC 1900.
Elenson v. SS Fortaleza 1992 AMC 1447.
Hay v. Le Neve 2 S 395 (Scot. App 1824).
The Antares II [1996] 2 Lloyds Rep 482.
The Choyang Star [1998] 1 Lloyds Rep 283.
The Contship Success [1998] 2 Lloyds Rep 488.
The Coral I [1982] 1 Lloyds Rep 441.
The Da Ye [1993] 1 Lloyds Rep 30.
The E.R. Wallonia [1987] 2 Lloyds Rep 485.
The ER Wallonia [1987] 2 Lloyds Rep 485.
The Filiatra Legacy [1986] 2 Lloyds Rep 257.
The Glucometer II [1989] 1 Lloyds Rep 54.
The Maloja II [1994] 1 Lloyds Rep 375.
The Maritime Harmony [1982] 2 Lloyds Rep 400.
The Navios Enterprise [1998] 2 Lloyds Rep 16.
The Ouro Fino [1986] 2 Lloyds Rep 466.
The Pulkovo [1989] 1 Lloyds Rep 280.
The Quint Star [1998] 1 Lloyds Rep 265.
The Roseline [1981] 2 Lloyds Rep 410.
The Sanshin Victory [1980] 2 Lloyds Rep 359.
The Skyron [1994] 2 Lloyds Rep 254.
The Tenes [1989] 2 Lloyds Rep 367.
The Woodrup-Sims [1815] EngR 1075; 165 ER 1422, 2 Dod. 83.
Woodford v. Carolina Power & Light Company 1994 AMC 217.
Navigation Act 1912 (Cwlth)
Marine Safety Act 1998 (NSW)
Marine Act (NT)
Marine (Collision) Regulations 1982 (NT)
Marine Act 1936 (SA)
Marine Act 1982 (WA)
Prevention of Collisions at Sea Regulations 1983 (WA)
Transport Operations (Marine Safety) Act 1984 (Qld)
Transport Operations (Marine Safety) Regulations 1995 (Qld)
Marine and Safety Authority Act 1997 (Tas)
Marine Act 1988 (Vic)
Maritime Conventions Act 1911 (UK)
258. (1) The regulations may prescribe measures to be observed for the prevention of collisions and may make provision for or in relation to the provision and use on ships of lights and signals.
(2) Without limiting subsection (1), the regulations may make provision for and in relation to giving effect to the Prevention of Collisions Convention.
(2A) The regulations, so far as they give effect to the Prevention of Collisions Convention, apply, despite section 2, in relation to ships in the areas constituted by:
(a) the high seas; and
(b) the territorial sea of Australia; and
(c) the sea on the landward side of the territorial sea of Australia; and
(d) waters other than waters of the sea; as provided by subsections (2B) to (2E) (inclusive).
(2B) The regulations mentioned in subsection (2A) apply in relation to a ship (other than a ship of a kind referred to in subsection 2 (1)) while the ship is in any of the areas mentioned in subsection (2A).
(2C) Subsection (2B) is not intended to exclude the operation of a State or Territory law, being a law that gives effect to the Prevention of Collisions Convention, in relation to a ship while it is in the area mentioned in paragraph (2A) (b), (c) or (d).
(2D) The regulations mentioned in subsection (2A) apply in relation to a ship of a kind referred to in subsection 2 (1) while the ship is in the area mentioned in paragraph (2A) (a).
(2E) Subsection (2D) is not intended to exclude the operation of a State or Territory law, being a law that gives effect to the Prevention of Collisions Convention, in relation to a ship while it is in the area mentioned in paragraph (2A) (a).
(2F) Where proceedings are instituted against a person for an offence, in relation to a particular matter, against:
(a) a provision of the regulations mentioned in subsection (2A); or
(b) a provision of a law of a State or Territory that gives effect to the Prevention of Collisions Convention; proceedings must not also be instituted against the person for an offence, in relation to the same matter, against:
(c) if paragraph (a) applies – a provision of a kind referred to in paragraph (b); or
(d) if paragraph (b) applies – a provision of a kind referred to in paragraph (a).
(3) The conviction of a person for an offence against the regulations made by virtue of this section or the orders made under subsection 425 (1AA) does not relieve that person from civil liability for damage occasioned by a default of that person.
(5) The Court before which proceedings against a person for an offence against the regulations made by virtue of this section or the orders made under subsection 425 (1AA) are heard shall be assisted by not less than 2 assessors of nautical experience appointed under Part IX who shall advise the Court but shall not adjudicate on the matter before the Court.
(6) An assessor who assists a Court shall be paid such remuneration and allowances as are paid to an assessor engaged in attendance on a Court of Marine Inquiry.
(7) A person who is guilty of an offence against the regulations made by virtue of this section is punishable on conviction:
(a) if the offender is a natural person – by a fine not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both; or
(b) if the offender is a body corporate – by a fine not exceeding $20,000.
Action to avoid collision
(a) Any action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.
(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.
(c) If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that is made in good time, is substantial and does not result in another close-quarters situation.
(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.
(e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.
SECTION II – CONDUCT OF VESSELS IN SIGHT OF ONE ANOTHER
Rule 17
Action by stand-on vessel
(a) (i) Where by any of these Rules one of two vessels is to keep out of the way the other shall keep her course and speed.
(ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.
(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.
(c) A power-driven vessel which takes action in a crossing situation in accordance with sub-paragraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.
(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.
SECTION III – CONDUCT OF VESSELS IN RESTRICTED VISIBILITY
Rule 19
Conduct of vessels in restricted visibility
(a) This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility.
(b) Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate manoeuvre.
(c) Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with the Rules of Section I of this Part. [including Rule 6]
(d) A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing and/or risk of collision exists. If so, she shall take avoiding action in ample time, provided that when such action consists of an alteration of course, so far as possible the following shall be avoided:
(i) an alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken;
(ii) an alteration of course towards a vessel abeam or abaft the beam.
(e) Except where it has been determined that a risk of collision does not exist, every vessel which hears apparently forward of her beam the fog signal of another vessel, or which cannot avoid a close-quarters situation with another vessel forward of her beam, shall reduce her speed to the minimum at which she can be kept on her course. She shall if necessary take all her way off and in any event navigate with extreme caution until danger of collision is over. [Emphasis added.]
NSW – The collision regulations are given effect by s.10 of the Marine Safety Act 1998 No. 121, and the text is annexed to the act in Part 2 of Schedule 2;
NT – The collision regulations apply through the Marine (Collision) Regulations 1982, made under the authority of the Marine Act, s.110.
Qld – The Transport Operations (Marine Safety) Act 1984 authorizes the making of the Transport Operations (Marine Safety) Regulations 1995. Section 93 of the Regulations provides that the collision regulations apply as if they were part of the Regulations.
SA – Section 59 of the Marine Act 1936 provides that the collision regulations apply and they are attached to the act at Schedule 2.
Tas – The Marine and Safety Authority Act 1997, at s.40(g), provides that the Governor has power to make regulations to prevent collisions at sea.
Vic.– Section 58 of the Marine Act 1988 incorporates the collision regulations. The full text of the collision regulations is attached as Schedule 1 to the act.
WA – The collision regulations are enacted by s. 79 of the Marine Act 1982 and the text is attached at Schedule 1. The detail is spelt out in the Prevention of Collisions at Sea Regulations 1983.
[1] DAppSc(Nautical Science) AMC, LLB(Hons) Deakin. John is a former mariner who served with BHP Transport in bulk carriers and tankers throughout the Pacific Rim. John is now a trainee solicitor with the Queensland law firm McCullough Robertson in their Admiralty and Maritime Group.
[2] A brief note on the terminology that I use. If referring to a particular version of the collision regulations, then I will refer to it explicitly, such as the ‘1972 Rules’. If I am referring to the rules for preventing collisions generally, then I will refer to them as the ‘collision regulations’. When used generally, the actual content of the ‘collision regulations’ will depend upon the particular version that was in force at any particular time.
[3] Convention on the International Regulations for Preventing Collisions at Sea, 1972, Australian Treaty Series 1980, No. 5.
[4] London, 17 June 1960, Australian Treaty Series 1967 No. 7.
[5] Rule 16(a) has continued largely unamended in the 1972 Rules as Rule 19(b).
[6] Sturt, R.H.B., 1991, The Collision Regulations, Lloyd’s of London Press, London, p. 7.
[7] id. at p. 9.
[8] 19 November 1981, UNTS 1323, p. 353.
[9] 19 November 1987, UNTS 1558, p. 436.
[10] 19 October 1989, UKTS 1996, No. 8 (Cm 3140).
[11] 4 November 1993, UKTS 1996, No. 9 (Cm 3141).
[12] International Convention for the Unification of certain Rules of Law respecting: (1) Collisions between Vessels; and (2) Assistance and Salvage at Sea, Brussels, 23 September 1910, Australian Treaty Series 1930, No. 14.
[13] id. at Article 6.
[14] Tetley, W., ‘Division of Collision Damages: Common Law, Civil Law, Maritime Law and Conflicts of Law’, 16 Mar. Law. 263 at 266.
[15] See for example The Woodrup-Sims [1815] EngR 1075; 165 Eng. Rep. 1422, 2 Dod. 83 (H. Ct. Adm. 1815) and Hay v. le Neve 2 S. 395 (Scot. App. 1824).
[16] 1 & 2 Geo. 5, ch. 57 (UK).
[17] Article 8, International Convention for the Unification of certain Rules of Law respecting: (1) Collisions between Vessels; and (2) Assistance and Salvage at Sea, Brussels, 23 September 1910, Australian Treaty Series 1930, No. 14.
[18] Australian Treaty Series 1983, No. 22, 17 November 1983.
[19] Australian Treaty Series 1984, No. 7, 7 November 1983.
[20] Australian Treaty Series 1988, No. 29, 1 January 1988.
[21] Convention on the International Regulations for Preventing Collisions at Sea, 1972, Australian Treaty Series 1980, No. 5.
[22] The full text of section 258 Navigation Act 1912 (Cwlth) is provided at section 8.1.
[23] Section 6 of the Navigation Act 1912 (Cwlth) defines ‘Prevention of Collisions Convention’ as ‘the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (a copy of the English Text of the articles of which is set out in Schedule 3), together with the International Regulations for Preventing Collisions at Sea, 1972, constituted by the rules and other annexes attached to that convention, as corrected by the procès verbal of Rectification dated 1 December 1973 (a copy of the English text of which rules and other annexes, as so corrected, is also set forth in Schedule 3), as affected by any amendment, other than an amendment objected to by Australia, made under Article VI of that Convention.
[24] Section 258(7) Navigation Act 1912 (Cwlth).
[25] Convention on the International Regulations for Preventing Collisions at Sea, 1972, Australian Treaty Series 1980, No. 5.
[26] International Regulations for Preventing Collisions at Sea, London, 17 June 1960, Australian Treaty Series 1967, No. 7.
[27] Restricted Visibility is defined in the 1972 Rules as ‘any condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorms, sandstorms or any other similar causes’.
[28] School of Nautical Studies, June 1992, Command Navigation II: Collision Avoidance at Sea, Australian Maritime College, Launceston, p. 12.
[30] Rule 6(a)(i) of the Convention on the International Regulations for Preventing Collisions at Sea, 1972, Australian Treaty Series 1980, No. 5.
[31] id. at Rule 6(a)(v).
[32] id. at Rule 6(a)(iv).
[35] ibid.
[37] ibid.
[38] ibid.
[40] ibid.
[42] ibid.
[43] Woodford v. Carolina Power and Light Company 1994 AMC 217.
[45] ibid.
[47] The Owners of the Ship ‘Skyron’ v. The Owners of the Ship ‘Hel’ (Unreported, 3 May 1994, Queens Bench Division (Admiralty Court), Clarke J).
[48] ibid.
[49] The ‘Sanshin Victory’ [1980] 2 Lloyds Rep 359.
[50] ibid.
[51] ‘Antares II’ and the ‘Victory’ [1996] 2 Lloyds Rep 482.
[53] ibid.
[55] The Third and Chief Officer’s evidence was to the effect that only one radar was operating before the collision.
[56] The ‘Maloja II’ [1994] 1 Lloyds Rep 375.
[57] The ‘Navios Enterprise’ and the ‘Puritan’ [1998] 2 Lloyds Rep 16.
[58] The ‘Roseline’ [1981] 2 Lloyds Rep 410.
[60] The Owners of the Ship ‘Skyron’ v. The Owners of the Ship ‘Hel’ (Unreported, 3 May 1994, Queens Bench Division (Admiralty Court), Clarke J).
[61] ibid.
[62] It was said in Elenson v. SS Fortaleza 1992 AMC 1447, that:
‘Rule 2 of the COLREGS provides a general framework for examining the responsibility of the vessels under the COLREGS. Rule 2(a), which is commonly known as the ‘Rule of Good Seamanship,’ see B. Farnsworth, Nautical Rules of the Road (2d ed. 1983).’
[64] ibid.
[65] Algoma Central Corporation v. The Ship ‘Prestigous’ 1994 AMC 1900.
[66] ibid.
[69] The Owners of the Ship ‘Skyron’ v. The Owners of the Ship ‘Hel’ (Unreported, 3 May 1994, Queens Bench Division (Admiralty Court), Clarke J).
[70] Very Large Crude Carrier.
[71] The Owners of the Ship ‘Skyron’ v. The Owners of the Ship ‘Hel’ (Unreported, 3 May 1994, Queens Bench Division (Admiralty Court), Clarke J).
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