IS THERE CONFUSION WITH NZ COLLISION REGULATIONS?

With all the modern navigation equipment collisions at sea still occur. In the past few weeks the car carrier BALTIC ACE sank in the North Sea after being in collision with the small container vessel CORVUS J. One is left to ponder whether both vessels were using the same collision rules or were the rules misunderstood by one or both of the vessels.

A collision caused by a misunderstanding of the Collision Regulations, highlights a question being asked in New Zealand. Here we have a unique rule, drafted by Maritime New Zealand and applicable in all New Zealand harbour limits that says all vessels under 500 gross tons must not impede vessels of over 500 gross tons. The “not to impede” directive appears to be taken by some mariners, both afloat and ashore, to mean that if a risk of collision develops the “not to impede” vessel is the give way vessel and the other the stand on vessel, regardless of what Rule 8 (f) (iii), or in NZ Rule 22.8 (6(c) says.

In a recent edition of the NZ Professional Skipper, a regular magazine for small boat skippers, the Editor asked “doesn’t Maritime New Zealand know that power gives way to sail” when referring to a collision between two small boats on Auckland Harbour.

Richard Culleton, a retired NZ harbourmaster sees some merit in the Editor’s question, as on many occasions he has asked numerous seafarers “To comply with the Regulations, Who gives way when a large power vessel and a small sailing vessel meet in a ‘narrow channel’ of a NZ harbour?”

MNZ has advised that the Collision Rules are very clear and that masters who regularly navigate in the narrow channels of NZ’s harbours and anyone involved in teaching, examining for maritime licenses or investigating near misses or collisions in those areas should be fully familiar with all the relevant rules. So surely it is only natural to be able to expect that this required familiarity with the rules will also apply to MNZ officials who give opinions on Collision Regulations. But does it?

The principal MNZ official, who helped draft the 500 ton rule, has advised that “The 500 ton Rule has equal status in law with the Collision Rules in NZ territorial waters and it amplifies and defines Rule 22.9(2) (the Narrow Channel rule)”.

Therefore, if a risk of collision situation develops in a NZ harbour, regardless of which rule is applied, the ‘not to impede’ duty of a small sailing vessel remains the same and both small & large vessels must comply with the Requirements of rule 22.8(6)

The same official also advised he “cannot help thinking that the Collision Rules were drafted for ships, and scant thought has been put into the interaction that occurs between very large vessels and very small vessels. It must be remembered that large vessels are not easily maneuvered”.

Perhaps he and others do not remember that Rule 8(f) i, ii and iii were inserted in the Rules in 1987, to make both small and large vessels aware of their respective responsibilities to each other when navigating in certain areas, one of them being a Narrow Channel.

That is exactly why compliance with the Rules is so important! Now, with the introduction of the 500 ton Rule, if large vessels in NZ’s harbours do not comply closely with all the relevant rules, the lives of crews on small vessels may be at risk. A large vessel not complying with the Rules, may have insufficient time to avoid a collision, if it fails to “give way” when moving at speed

This has already happened in the two collisions, first referred to in Captain John Brown’s article ‘Might is Right’ dated March 2010, and also at subsequent times, on this web site. He says the overriding rule would be that when a risk of collision develops in any NZ harbour, a power driven vessel must keep out of the way of a sailing vessel. So how many seafarers in NZ agree with that interpretation?

Because of the findings in the official reports on those two collisions, Culleton requested MNZ officials for an opinion on the following question:

A vessel over 500 gross tons, navigating in a Narrow Channel, sights a red light fine on her starboard bow. The Master believes it to be the sidelight of a small sailing vessel, a vessel that is required not to impede his vessel. As a risk of collision is seen to be developing, is the vessel that is not to be impeded the ‘stand on’ vessel required to take action to comply with Rule 22.17?

OR

Does the vessel that is not to be impeded become the ‘give way’ vessel required to keep out of the way complying with Rule 22.18 (1) (d)?

Maritime NZ’s considered opinion was:

“In a Narrow Channel where a sailing vessel and a power vessel meet, the sailing vessel must keep out of the way of the power vessel, if the power vessel is unable to leave the channel. The power vessel must maintain course and speed”

MNZ’s clarification of the above was: “If the vessel who should keep out of the way fails to do so, in this case the sailing vessel, when it becomes apparent to the master of the stand on vessel that the sailing vessel is so close that collision is imminent, the master must take whatever action is best to avoid a collision (rule 22.17.3). He may take action when he believes that the give way vessel has not taken sufficient action to avoid collision. However none of this reduces the responsibility of the sailing vessel to keep out of the way”.

MNZ also advised “Rule 22.18 cannot apply because the scenario involves a Narrow Channel (note the exceptions at the beginning of the rule)”.

Rule 22.18 places an obligation on powered vessels to keep out of the way of sailing vessels, ‘except where rules 22.9, 22.10 and 22.13 otherwise require’.                                 Some seafarers misinterpret this phrase and believe it to mean that those rules override or supersede rule 22.18, but many others say that this is clearly not the case. Rather, the phrase means that unless anything contained in those rules otherwise require the powered vessel to act in accordance with rules 22.9, 22.10 and 22.13, then the powered vessel must follow the instructions in Rule 18. Thus, when a risk of collision begins to develop in a narrow channel (NZ harbour), the powered vessel must comply with Rule 22.18 (1) (d) and ‘keep out of the way of the sailing vessel’.

Because MNZ’s opinion was so different from that of Culleton’s and others, he contacted a number of experienced mariners both in NZ and overseas, and asked them the same question he had put to MNZ. By also researching a number of overseas maritime websites, he obtained a number of opinions, virtually all of which were contrary to that of Maritime New Zealand. They came from a number of seafarers afloat, Collision Rules tutors in Nautical Colleges in NZ and overseas, the US Coastguard, UK Collision Avoidance Rules expert Captain AN Cockcroft and the American Journal of maritime law & commerce.

On not to impede, Cockcroft’s & Lameijer’s “A Guide to the Collision Avoidance Rules” states “When a power driven vessel and a sailing vessel are approaching each other the power driven vessel is required by Rule 18 (a) (iv) to keep out of the way when a risk of collision begins to apply, although she may be proceeding along a Narrow Channel”.

An American viewpoint worth reading is stated in the US Journal of Maritime Law & Commerce (see especially pages 20/21) Click on the link 

On page 21 of this site the following is stated: “If a situation develops so as to involve a risk of collision the vessel whose passage was not to be impeded must comply with the Steering and Sailing Rules applicable to the particular approach situation”.

Thus it is quite clear that both of the above interpretations mean that when a risk of collision begins to develop the power driven vessel immediately becomes a give way vessel that must keep out of the way of the sailing vessel. It is not allowed to keep both her course and speed, as by Rule 22.16 the give way vessel is required to take early and substantial action to keep well clear of a small sailing vessel.

As that was not the findings of the official investigators into the collisions mentioned in Brown’s “Might is Right”, it obviously raises some doubt as to whether those findings were correct? Some mariners now wonder, if the investigators took the advice that Captain Tony Legge, a retired MNZ Chief Investigator, gave in  September‘s “On Deck” magazine, and had their findings on the Collision Regulations checked out by someone else suitably qualified to do so? In both collisions mentioned above, the large vessels kept on at full speed until just seconds before each of those collisions, although confronted by an impeding sailing vessel.

On 18 May 2011, after seeing the article, “Maritime NZ Give Way rules challenged “, by Phil Kitchin in the Dominion Post newspaper, Tony Legge, in an exchange of  emails with Brown, wrote in part:  “Rule 8 (f) of the International Collision Regulations uses the words not to impede to mean not to get in the way of”.

In February 2007, the same official who drafted the 500 ton Rule was asked “What is MNZ’s official interpretation of the meaning of the term not to impede”? He replied “the difference in the meaning of the terms ‘give way’ and ‘not to impede’ is subtle in the interaction between small craft and larger vessels. The terms are taken in NZ to be synonymous for all practical purposes”.                                                                                                                                                                                                            But Culleton and others ask if the above is correct, why was ‘not impede’ inserted in the Rules in the first place? They believe that the above meaning of ‘not to impede’ is totally contrary to the content of rule 8(f) and other Steering & Sailing Rules, and  it should mean ‘not get in the way of so as to cause even a possibility of risk of collision developing’!.

Legge continued “I see the 500 ton rule (or the Narrow Channel rule) as operating in two different phases. Phase 1 begins when a risk of collision has been determined and at that point the smaller vessel must give way (not impede). Phase 2 kicks in when the smaller vessel fails to give way and at that point it is incumbent on both vessels to comply with the rules i.e. they must both take action that best aids to avert collision.                                                                                                                                            I agree with you that Rule 8(f) (iii) of the International Regulations and NZ rule 22.8.6 (c) make it clear that the ‘not to be impeded vessel’ remains fully obliged to comply with the Rules when risk of collision exists”.

Culleton and others believe that there are 3 phases in the scenario of a small sailing vessel impeding a vessel over 500 gross tons:

Ÿ  Phase 1- 8 f (i) begins when the sailing vessel is made aware of or sees the approach of the large vessel. It must take early action to keep well clear of it, so that no risk of collision can ever develop in the future.

Ÿ  Phase 2- 8 f (ii) Begins if for some reason a risk of collision does develop. The rule clearly establishes that a vessel that is required ‘not to impede’ never loses that duty, even though the vessel over 500 tons may become the give way vessel.

Ÿ  Phase 3 – 8 (f) (iii) (22.8. (6)(c) Begins when the vessel over 500 tons that is ‘not to be impeded’ sees that a risk of collision is developing. At that time it immediately becomes a vessel that must comply with all the ‘steering and sailing Rules’ and in particular 22.18 (1) (d) and 22.16. As a give way vessel, it must take early and substantial action to keep well clear of the small sailing vessel. (i.e. as in the scenario sent to MNZ)

Legge continued “However, if I understand you (Brown) correctly, your main concern is not that ‘impede’ hasn’t’t been defined but that Local Authorities have interpreted the rule as giving carte blanche to any vessel over 500 tons to press on regardless and to expect smaller vessels to keep clear. Certainly wrong but probably not unreasonable given that small boat owners need simple rules and their boats are more manoeuvrable“.

 It is not just some local authorities but MNZ as well that advises that all small boats (both power & sail) must ‘keep out of the way’ of large vessels in NZ harbours. As that is the case, does Tony Legge believe that it is correct that large vessels should always be classed by seafarers as ‘stand on vessels’ when a risk of collision is seen to be developing with a small vessel in a NZ harbour, even though it appears that interpretation is clearly contrary to the international meaning of the content of the Rules?  If so, it seems strange considering his background as a past Chief Investigator of Maritime Accidents and Examiner of Masters and Mates.

But Legge is not alone in his opinion that the large vessel is the ‘stand on’ vessel, as it appears that there are a number of other seafarers in NZ that do not share Culleton’s and others opinion that power gives way to sail when the two vessels meet in a narrow channel (NZ harbour).These include the officials who supplied MNZ’s considered opinion on the question put to them, and the MSA, MNZ & TAIC investigators who investigated the two, collisions mentioned by Brown. They believe that the vessel seen as an impeding sailing vessel was the ‘give way vessel’, with the larger powered vessel being the ‘stand on’ vessel which must comply with Rule 22.17.                                                                                                                               It also appears, that perhaps the masters of the large powered vessels involved in those two collisions thought at the time, that power does not give way to sail in a Narrow Channel, as they respectively kept on at full speed until just seconds before each of those collisions, although they both saw the lights of an impeding sailing vessel ahead of them.                                                                                                Is it also possible that some masters and pilots, having seen advice or findings put out by MNZ and some NZ Regional Councils, may be of the opinion that small vessels under power or sail must now give way to vessels over 500 gross tons?

So whilst all the various people or groups of people mentioned above are entitled to their own opinions (interpretations), Culleton and other mariners do not believe that their opinions are in compliance with the relevant Steering & Sailing Rules for the large powered vessels and small sailing vessels navigating in NZ‘s harbours and the Narrow Channels that are contained in them. They believe it is most important that Maritime NZ clarify, or as a last resort even change, the ‘give way’ Rules. Not only just for Narrow Channels, but also for NZ Harbours in general, so that all seafarers using NZ waters have the same and correct understanding of them.