New Zealand Company of Master Mariners

Master’s delay voids error of navigation defence

A New Zealand court case has highlighted the unseen consequences of a master’s actions in trying to hide his own navigational error. Details of the legal argument in how they relate directly to decision-makingmay provide a salutary warning

GENERAL cargo vessel Tasman Pioneer (1979-built, 16,748 gt) was en route from Yokohama to Pusan carrying New Zealand cargo to various Asian ports.

The vessel had been running behind schedule and the master tried to make up time by transiting through a restricted passage at night. He was delayed on his voyage from Yokohama to Pusan because of bad weather and he decided that he could save about 14 hours by steaming east of the island of Okino Shima instead of taking the usual route to the west. This new route was a narrow channel between Okino Shima and the small island of Biro Shima.

The master, who was in charge of the bridge, made his decision despite the fact that it would be a night passage with visibility of only two miles and there was a northwesterly gale with wind speeds of 37 knots. Rain squalls occasionally obscured the radar images. During one of these squalls the second mate was asked to adjust the radar to take account of the rain and after doing so he immediately noted that Biro Shima was only 800 yards off the port side.

From a speed of 15 knots the vessel momentarily slowed to six or seven knots and developed a list of three degrees, which increased to 10 degrees after 10 minutes. Holds one and two were taking in water; clearly the vessel had touched bottom.

The law can be quite forgiving in respect of claims made by cargo interests against owners by allowing the owners a complete defence in certain circumstances. One of those circumstances is known as the ‘error of navigation/management defence’.

This defence is sometimes seen as out of date in that it originates from a time when the risks of navigation were perceived to be considerably greater than they are today.

Assuming that no other factor other than the master’s poor decision-making contributed to the grounding of the ship, the owners would avoid paying damages to all the cargo interests for cargo which was damaged by the flooding. However, the master’s subsequent decisions had disastrous consequences in respect of liability.

The vessel continued steaming at full speed into the Inland Sea where the master anchored near the intersection of the original course west of Okino Shima.

The vessel anchored there 2.5 hours after the grounding and only then did the master inform his owner’s agents.

He instructed the crew to falsify the records and to lie to investigators, with a view to persuading them that the vessel had stayed on its original intended course and had hit an unknown floating object.

In addition, the master did not contact the Japanese coastguard to inform them of the condition of the vessel. This was reported by a passing vessel to the coastguard, whose patrol boat managed to locate and inspect the vessel some six hours after the incident; at that time it had a 5 m-6 m trim by the head. The poor weather conditions had not abated. A no-cure no-pay salvage agreement was not concluded until some seven hours after the grounding.

Instead of proceeding at full speed towards the Inland Sea, the master could have reduced speed and made for the nearest sheltered anchorage, which was only eight miles away. There were salvage tugs in that area on 24-hour standby and it appears that salvors could have been in attendance some five to six hours earlier than they were.

During that additional five to six hours, a considerable amount of deck cargo was damaged or lost.

Understandably, the owners of the deck cargo were reluctant to accept an ‘error of navigation/management defence’. Nevertheless, they did so in respect of that cargo damaged immediately following the grounding, ie within the flooded holds. They did not do so in respect of the damaged and lost deck cargo.

Cargo owners argued that the master’s decision to proceed to the Inland Sea and not to call for salvage assistance immediately should not be allowed as an ‘error of navigation’ defence because it was made in bad faith. The cargoes mainly originated from New Zealand and the New Zealand court agreed with the cargo owners.

The shipowners appealed, arguing that the defence was available for any navigational act, be it negligent, reckless or otherwise.

After much complex analysis, the Court of Appeal simply decided that the actions of the master in delaying the notification to salvors and local authorities had been motivated not by his paramount duty to the safety of the ship, crew and cargo, but by his intention to avoid blame.

Such behaviour was carried out for purely selfish purposes and was completely against the carrier’s obligations to cargo interests under the relevant legal regime and was not conduct in the navigation or the management of the ship.

To support its conclusion, the court pointed to a previous French case where the master of a damaged ship, instead of beaching it, spent valuable hours trying to avoid salvage costs. That decision was held not to be conduct in the management of the ship. As a result, the owners were obliged to pay the cargo interests’ claims.

This article was originally published inBritannia Risk Watch, March 2010 .

Harbourmasters in some of the country’s busiest stretches of water are calling for more power to investigate incidents where boats narrowly avoid colliding. They say it is only a matter of time before someone else is killed in a collision, and want to be able to try to stop any future accidents. ‘Sometimes it’s a daily basis, sometimes it’s multiple times a day,” says Marlborough Sounds harbourmaster Alex van Wijngaarden, who fears that too few of these close calls are actually being investigated. Port of Whangarei harbourmaster Ian Niblock agrees, saying that the near misses are of concern because they are an indication that there could potentially be fatal accidents. Officially called close quarter incidents, all near misses on the water are reported to Maritime New Zealand. However, they say they cannot look into every incident, and that investigations are decided on a case-by-case basis. Harbourmasters themselves can only ask for a person’s name and address after a close quarter incident, but they cannot investigate beyond that. They are calling for the power to conduct investigations in their own stretches of water.  However, Associate Minister of Transport Nathan Guy is unaware of any issues raised by harbourmasters. “We think the current legislation is working pretty well.” says Guy. 

Some would say that at some ports the Harbourmaster would be the last person to investigate a near miss.  Some Harbourmasters have no experience nor qualifications and at one major NZ port the position of Harbourmaster is (or was) filled on a roster basis from senior executive staff.

The above notice is prominently displayed on the Greater Wellington Regional Council web site and has previously been published in Wellington newspapers. The wording in the above is not the same as in WRC by-law 6.3.1 nor the relevant collision prevention rules  and gives a completely false interpretation of the present international collision rules. The by-law and the rules use the term “must not impede” and not “must give way”. There appears to be a culture which has developed in New Zealand where large ships think that they are the stand on vessels and all small vessels must keep out of their way at all times with no rights what so ever.

This culture probably comes from Maritime New Zealand and its advisors and is demonstrated in the findings of investigations into collisions.

Two collisions come to mind. Both occurred at night with little wind and both vessels in each case could see each other well before the collision. The larger ship in each case only saw sidelights of the other vessel so should have assumed that each smaller vessel was a sailing vessel with limited manoeuvrerability because of the lack of wind. In both cases the larger ships carried on at full speed until just before the collision.

In one case the  non compliance with the “narrow channel”  (Rule 9) was stated as the main contributing cause and in the other case the non compliance with a harbour by-law based on the unique New Zealand 500 ton rule.  The operative words in both rules  are “not to impede” which are accepted internationally as not the same as “keep out of the way”.  In fact both  rules state a vessel that is not to be impeded remains fully obliged to comply with the Steering and Sailing Rules when the two vessels are approaching one another so as to involve a risk of collision and in these two cases the overriding rule would be that a power driven vessel must keep out of the way of a sailing vessel.

This is certainly not the message that the above poster gives –  MIGHT IS RIGHT –  It is a sad day that we have reached this state of affairs in New Zealand

From the booklet “Across the Water”,  biography of Captain A.E. Wilmott, ferry master and later Marine Superintendent/Harbour Master at Heysham for LMS Railway steamers.

“Although modern in every other respect, none of the Fleetwood steamers was fitted with wireless telegraphy until 1921 and instead they carried on the bridge two carrier pigeons for use in an emergency, the basket containing them placed on board immediately before the ship left Fleetwood.”

Time to update GMDSS — but with what?

Lloyds List 9 March 2010 by Peter Blackhurst

WHILE there may be differing opinions on when the Global Maritime Distress and Safety System actually began — its conception in 1979, the GMDSS Conference in 1988 or the full implementation in February 1999 — it is widely accepted that little has changed to the system in the intervening years and that now is the time to look at bringing the GMDSS up to date.

To that end, the request for a review of the GMDSS was placed before the International Maritime Organization’s Maritime Safety Committee at its 86th session. It agreed that Comsar, the sub-committee on radiocommunications and search and rescue, should carry out a scoping exercise over its next two sessions to assess which areas need to be reviewed, amended, and included or excluded.

Several forums have already started fringe discussions to open up the general awareness of the issues. These started at the joint IMO/International Telecommunication Union experts group last summer, where some excellent brainstorming took place. Earlier this month, a joint meeting of various organisations on HQS Wellington in London, organised by the Royal Institute of Navigation, hosted a discussion on electronic GMDSS that covered some pertinent questions: Has GMDSS worked? Can it do better? Which new technologies can be used? What will be its role for future electronic Navigation?

Another area of focus, including the question of its continued relevance, is Chapter IV of Solas, which deals with making a distress alert and call. One idea currently circulating is changing the title of Chapter IV to distress communications; all distress-related communications would be transferred into the chapter, while other communication needs are addressed by other chapters. There is a strong view that distress communications should be clearly separated from other types of communications.

Also for consideration is the demise of Telex and the bleak future of High Frequency; although carriage requirements include the relatively obsolete system, there are concerns over a lack of HF stations. Denmark closed its HF services in October 2009, for instance.

The four areas of carriage requirements (sea areas A1 to A4) might be reduced; this might come about if the MF/HF solution is amended, especially as there is a great deal of discussion regarding vessels in areas outside the coverage of Inmarsat’s geostationary satellites. The work being carried out by the IMO’s Ship Design and Equipment sub-committee may well reach the conclusion, in conjunction with Comsar, that vessels sailing in polar regions should be mandated to make special arrangements with administrations and coastal states for the transmission and reception of distress and safety messaging. These communications systems may well include HF or utilisation of other new technologies as appropriate.

It has been further suggested that the Automatic Identification System can become part of the GMDSS. There are many benefits in the way that AIS information is promulgated between ships, and this has really helped navigational safety, the monitoring of vessels by shore stations and in global information services.

Additionally, satellite detection of AIS signals is providing an additional resource that could be used for landing safety information. It could be that this system can provide a medium for relaying distress and safety information, or certainly in assisting with Search and Rescue activities.

It has also been suggested that Long Range Information and Tracking and Ship Security Alerting System may also have a place within the GMDSS.

Within discussion groups there is a strong feeling that the GMDSS should be maintained as a simple, reliable and responsive system, and not clogged up with unnecessary traffic generated by the misuse of ‘Digital Selective Calling’ facilities, multiple acknowledgments and relays (primarily by HF but also with other systems).

With that, we come full circle. An idea gaining ground is one that was first considered at the conception of the GMDSS: that it should consist of a VHF/satellite solution for distress and safety alerting, and that the need for MF or HF is superfluous to modern needs except in some commercial applications.

Electronic navigation will require much spectrum in its implementation and the release of current MF and HF frequencies may well be acceptable to the user needs. Digitisation of VHF and the use of other systems such as WiMax may also provide the connectivity for this large exchange of data.

We find ourselves at the beginning of the path in the evolutionary process. We have to be mindful of existing equipment that is installed and ensure that compatibility into the future is assured; that any changes in the system will provide cost savings to the operator and will not force the undue installation of new equipment before its time.

Finally, when this process is complete, we need a continuing review to ensure that the GMDSS remains modern and efficient.

Peter Blackhurst is head of maritime safety services at Inmarsat.