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The Collision Avoidance Regulations as a Regulator of International Navigation Rights: Underlying Principles and their Adequacy for the Twenty-first Century

Published online by Cambridge University Press:  21 October 2009

Glen Plant
Glen Plant
Affiliation:
(Barrister)
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Extract

The high seas freedom of navigation, and the lesser rights of transit, archipelagic sea lane and innocent passage applicable in straits used for international navigation, archipelagic sea lanes and the territorial sea respectively, have been said to embrace two notions: ‘one is the right to make progress over the surface of the sea, the other is the duty to make progress only in an orderly way, as to speed, steering, lights and so on – the manner of operation of the right’.

Keywords

1. Collision avoidance.2. Law of the sea.3. Freedom of navigation.
Type
Research Article
Information
The Journal of Navigation , Volume 49 , Issue 3 , September 1996 , pp. 377 - 393
Copyright
Copyright © The Royal Institute of Navigation 1996

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References

NOTES AND REFERENCES

1Warbrick, C., (1973). ‘The Regulation of Navigation III’ New Directions in the Law of the Sea, 137.Google Scholar
2What is good seamanship in a given instance is a question of fact to be decided upon a consideration of all the relevant circumstances: The Heranger (1939) A. C. 94, 101; it is illustrated by numerous judicial decisions.Google Scholar
3 As to this view see The Roseline (1981), 2 Lloyd's Rep. 410, 411.Google Scholar
4 That the 1972 COLREGS do so to a high degree is illustrated by mariners' responses to questionnaires sent out by, inter alios, the IMCO Secretariat, US Coast Guard and Royal Institute of Navigation before the IMCO Conference on Revision of the International Regulations for Preventing Collisions at Sea (‘the 1972 diplomatic conference’), which adopted the 1972 COLREGS.Google Scholar
5 By Article I of the Convention, Parties ‘ undertake to give effect to’ the COLREGS, but the COLREGS themselves are addressed to vessels, and a flag State's obligation should be read as at most one of due diligence to ensure the existence of the legislative, administrative and judicial conditions requiring and enabling their vessels to comply with them. See also the new Code annexed to the Convention on Standards of Training Certification and Watchkeeping (‘STCW Code’), Part A, Chapter 8, paras. 9 and 12, concerning the master's responsibility to ensure that watchkeeping is adequate and the officer of the watch's responsibility to avoid collisions.Google Scholar
6 Cf. Article 11, 1958 Convention on the High Seas, 450 UNTS 11; Article 97, 1982 Law of the Sea Convention (‘LOSC’), 21 ILM (1982), 1245.Google Scholar
7 See Articles 21,27 and 52 (1) LOSC. The measures taken must not have the practical effect of hampering innocent passage. In those straits used for international navigation of such importance that the enhanced right of transit passage is enjoyed by foreign ships, however, the obligation under Article 39(2) (a) LOSC upon ships to obey the international COLREGS is not matched with corresponding provisions permitting a bordering State to prescribe national laws and regulations (except, under Article 42(1) (a), in respect of IMO-adopted traffic separation schemes) nor with specific enforcement provisions. This is equally true of ships in archipelagic sea lanes passage, where a roughly similar regime applies: cf. Article 54.Google Scholar
8Present English and American law raises a rebuttable presumption of negligence by the person responsible for the breach: The Pennsylvania (1875) ‘19 Wall 125.Google Scholar
9 Including, where relevant, Protection and Indemnity (P&I) Clubs. Of course, warships and other government-owned vessels are not usually insured.Google Scholar
10 See The Sylvester Hale, 6 Bened. 523.Google Scholar
11IMCO doc. NAV XXIV/12, 6 March 1980, Annex 4.Google Scholar
12 For a description of the relevant English law, see the author's contribution to Marsden's, Collisions at Sea, London, 12th ed., 1997 forthcoming, chapter 6 (‘Marsden’).Google Scholar
Concerning American law see Farwell's Rules of the Nautical Road, Annapolis, Maryland, 6th ed., 1982 (‘Farwel’).Google Scholar
13 These provided :IMO Res. A. 464(XII), 19 November 1981, A. 626(15), 19 November 1987, A. 678(16), 19 October 1989, and A. 736(18), 4 November 1993.Google Scholar
28 See IMCO doc. NAV XXI/9, 10 August 1978, para. 21.Google Scholar
29 See text accompanying nn. 51–53 infra.Google Scholar
30 As of 1 November 1994.Google Scholar
31 They represent 95·88 per cent of world tonnage.Google Scholar
32 Article 21(4) LOSC.Google Scholar
33 Articles 39(2) (a) and 94(3) (c), when read with 94(4) (c) and (5), LOSC. The former expressly provides that these include the ‘International Regulations for Preventing Collisions at Sea’ and are to be obeyed.Google Scholar
34 The LOSC entered into force on 16 November 1994 and is expected to have about 100 Parties, including most important maritime States (though not the USA) by the end of June 1996. In addition, much of it is generally regarded as representative of customary international law. The possible meanings of the various obligations to conform to ‘generally accepted’ standards are not entirely clear, although the author takes the view that a Party to the LOSC can, by virtue of this language, be bound by the provisions of another treaty, if they represent generally accepted standards, e.g. by virtue of a majority of the most significant States being parties to the treaty and their widespread enactment in domestic legislation and implementation, notwithstanding that it has not formally become a Party to that treaty: see further Plant, Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Manchester, 1997 forthcoming, Chapter 6, Section 3.1. Even if a narrower view is taken, that the term incorporates by reference only customary international law standards, it is strongly arguable that the 1972 COLREGS Convention represents such customary law, at least insofar as it requires States to give effect to general safety principles binding upon States that are of a fundamentally norm-creating character: of. The North Sea Continental Shelf Case (Germany v. Denmark and the Netherlands), ICJ Rep. (1969), 3.Google Scholar
35 Rule 1 (b) varies from earlier equivalents by adding roadsteads to the places where local rules may apply. It follows that they can in principle apply beyond twelve nautical miles from the coastal State's normal baselines in the area of roadsteads which, by virtue of Article 12 LOSC, lie within territorial waters although they would otherwise be situated wholly or partly beyond their outer limit. The addition was, on the other hand, not intended to permit coastal States to apply local rules to structures far from their coasts: IMCO doc. CR/CONF/C. 1/SR.3, 10 November 1973, pp. 3–4. Indeed, an Indonesian proposal to add ‘offshore operation areas’ to the list was rejected: CR/CONF/C. 1/SR.2, 10 May 1973, p. 7.Google Scholar
36 E.g. the USA: see COLREGS Boundary Lines, 46 C.F.R. 7.Google Scholar
37 Cf Article 21(1) (a) LOSC with Articles 39(2) (a), 42(1) (a) and 54 LOSC, and see supra n. 7.Google Scholar
38 Article 3 LOSC.Google Scholar
39 Article 24(1).Google Scholar
40 Indeed, Rule 10 originated as a special extension of Rule 9 to open waters which began to take on the characteristics of narrow channels by virtue of a high incidence of converging traffic. In the Turkish Straits, however, the IMO recently approved a local rule permitting Rule 9 to prevail over Rule 10 in certain circumstances: Rule 1.2 of the Rules and Recommendations on Navigation through the Strait of Istanbul, Strait of Canakkale and the Marmara Sea, IMO doc. MSC 63/23, para. 7.22.Google Scholar
41 See Plant, ‘Traffic Separation Schemes and the New Law of the Sea’, 9 Marine Policy (1985), 71.Google Scholar
42 Rule 9(e). See also Rule 34 (c).Google Scholar
43 The overtaking vessel is, indeed, Entitled to this information: The M.P. Howlett (CCA Pa) 1932. 58 F (2d) 923.Google Scholar
44 Germany is particularly concerned about ‘tide-bound’ deep draught vessels in the German Bight. See, e.g., IMO docs. : MSC 51/21, 7 June 1985, para. 5. 11; 52/28, 26 February 1986, paras. 8.9 and 8.10; MSC 53/24, 29 September 1986, para. 3.16; MSC 54/23, 19 May 1987, para. 6.2.11; NAV 30/4/3, 1984. NAV 31/12, 24 July 1985, paras. 4.3.5 and 4.3.9; and NAV 34/14, 16 February 1988. The Netherlands pointed out, in 1986, that there are at least five other areas off N.W. Europe where vessels constrained by their draught cannot give way as required by the COLREGS, because they cannot leave a deep water route or reduce their speed: see NAV 33/4/19, 11 November 1986.Google Scholar
45 Rule 3(h).Google Scholar
46 The 1972 diplomatic conference had intended to restrict the regulation to deep-draught vessels (see: IMCO docs. CR/CONF/3, pp. 126, 128, and /Add. 2, 2 October 1972. CR/CONF/C. 1/WP.2, 5 October 1972, pp. 2–5, /SR.11, pp. 4–7, and /SR.12, pp. 3–6), but on its face it extends to any vessel experiencing manoeuvring difficulties in waters which for her are shallow on either side (or beneath) her: see now IMO Clarifications; also CR/CONF/SR.6, p.8; CR/CONF/C. 1/SR.8, p. 5; and CR/CONF/C.2/SR. 11, p. 19.Google Scholar
47 The ‘quasi-privilege’ should not be created artificially, e.g. by tankers increasing speed so as to alter their trim and so limit their underkeel clearance: see, e.g., Rule 6(a) (vi).Google Scholar
48 See IMCO doc. CR/CONF/C.2/WP.1, p. 5.Google Scholar
49 Under Rules 9(b), (c) and semble, (d) and 10(i).Google Scholar
50 Under Rule 10(j). The term ‘safe’ is used here (and in Rule 18(d)) to emphasise the fact that the ‘quasi-privilege’ of the second vessel is not absolute; where, e.g., she has room to manoeuvre so as to avoid a fishing vessel or the like, she should do so: IMCO doc. CR/C0NF/SR.7, 4 May 1973, pp. 8 and 10–11. During the negotiations leading to the adoption of new Rule 8 (f), both Japan and the USA insisted that the burden should not be placed entirely on one vessel: IMO docs. NAV 29/4/5, 30 April 1984, and 30/4/5, 16 November 1984.Google Scholar
51IMO doc. NAV 32/13, 27 March 1986, para. 4.3.2-.5. The main reason cited (in NAV 30/WP.3/Add. 1, 19 December 1984, para. 2.5.4.) was that the change would be tantamount to a new regulation rather than a clarification, to which the amendment procedure should be properly restricted.Google Scholar
52NAV 32/13, IMO doc. NAV 32/13, 27 March 1986, para. 4.3.6; NAV 34/14, para. 4. (i) The FRG has adopted a series of local rules for ‘tide-bound’ deep draught vessels in port approaches in the inner German Bight. By its Sixth Ordinance to Amend the Traffic Regulations for Navigable Waters (Bundesgesetzblatt (‘BGB ’) I, S. 38, 9 January 1985; in English translation in LOS Bulletin, No. 7, April 1986, at 9—22), it enacted a local rule (S. 24(a)) to apply in newly extended territorial waters there, where several IMO-adopted routeing measures had already been prescribed. This rule, as set out in FRG Notice to Mariners NFS-HEFT 4/1985 (appearing in English translation in IMO doc. SN/Circ. 124, 6 March 1985), read as follows:Google Scholar
53 Both the 1985 and 1991 versions of the German Traffic Regulations were thus applied to waters extending beyond twelve nautical miles from the coastal baselines, in a ‘box’ extending in places up to sixteen nautical miles offshore. This claim was contrary to international law. Germany has now, however, reduced its territorial sea claim to the generally accepted twelve nautical miles, since the VTS system in the German Bight is now regarded as adequate to ensure safety in those parts of the box extending beyond this.Google Scholar
54NAV 27/WP.9/Add.2, 15 October 1982.Google Scholar
55 The other, ‘ quasi-privileged’, vessel should, it seems, display Rule 28 (‘ vessel constrained by her draught’) lights or shapes, where appropriate, have her engines ready for immediate manoeuvre and have special regard to her own manoeuvrability and draught (i.e. to Rules 6(a) (iii) and (vi)) in determining a safe speed : IMO Clarifications, which in this respect do not appear to be superseded by Rule 8(f).Google Scholar
56 It has led Germany, e.g. to suggest that it reverses the normal requirements as to give-way and stand-on vessel: see supra n. 52.Google Scholar
57IMO Doc. NAV 34/14, para. 4.7, calls for mariners to be afforded further experience of it before any new amendment is contemplated.Google Scholar
58 Germany argues that, without this, ‘vessels on a collision course [might] delay unduly in taking avoiding action and thus increase the possibility that their manoeuvring actions may nullify each other’: MSC 53/24, para. 3.16. But this is merely the normal problem surrounding Rule 17. See also C. Young, ‘The Evolution of a Proposed New Navigation Rule: the “Duty Not to Impede” ‘, 17 JMLC (1986), 119.Google Scholar
59 It would be difficult to conceive of rules which could apply on three planes.Google Scholar
60 The reasoning for the latter appears to be based on a combination of the frequent coincidence of shortness with limited engine-capacity to provide power for lights and locomotion and the desire to avoid placing excessive financial burdens on small boat owners: see, e.g., IMCO doc. CR/CONF/C.2/SR.7, p. 13.Google Scholar
61 It will be recalled that a (failed) attempt was made before 1972 to draft a single set of steering and sailing rules for all visibilities.Google Scholar
62 Captain Syms, letter in Seaways, May 1980, at 22.Google Scholar
63 seaways,. This fortifies the principle, discussed above, of uniformity of application.Google Scholar
64IMO docs. MSC 62/23/3, 26 February 1993 (Friends of the Earth International), and 62/23/13, 22 March 1993 (Netherlands).Google Scholar
65MSC 62/25, 17 June 1993, para. 23–27.Google Scholar
66Semble per Westbury, C.J. in Inman, v.Reck, The City of Antwerp and the Friedrich (1868) L.R. 2 P.C. 25, 30, 34; The Concordia and the Esther (1866) L.R. 1 A. &E. 93.Google Scholar
67The Sparto [1956] 1 Lloyd's Rep. 400.Google Scholar
68 E.g. in helping to determine when the 1972 COLREGS begin to ‘bite’ and, later, when a close-quarters or in extremis situation has arisen. In The Nowy Sacz, (1976) 2 Lloyd's Rep. 695; (1977) 2 Lloyd's Rep. 95 (C.A.), the two vessels in collision had converged so slowly and over such a long distance that it was difficult to determine when the overtaking vessel was ‘ coming up with’ the vessel to be overtaken for the purposes of Rule 13.Google Scholar
69 What constitutes a vessel's ‘safe speed’ in any given circumstance depends upon a host of factors concerning her capabilities, visibility, wind, tide, etc., which must in the first instance be judged by the person in command of her.Google Scholar
70 Over 40% of collisions in the Dover Strait between 1950 and 1971 were so caused: Brown, I. and Wheatley, J., ‘Circumstances of Collisions and Strandings in the Dover Strait Area 1968–1972’, National Physical Laboratories (NPL) Rep. MAR Sci. R101, October 1972.Google Scholar
71 These latter restrictions are limited to particular Rules. Under the 1960 COLREGS they were of more general application. The changes were probably made, because modern fast vessels using radar are now more prevalent and can safely carry out manoeuvres unsafe if carried out by a slower one without radar.Google Scholar
72 E.g., Rule 12 is designed to follow closely the basic principles contained in the International Yacht Racing Rules; and recreational diving is catered for by rules on vessels restricted in their ability to manoeuvre and by special lights and shapes.Google Scholar
73 These have some ‘ privileges’ under Rule 18, and are generally permitted by Rule 10 to fish anywhere in a traffic separation scheme. In fairways and the lanes of traffic separation schemes, however, they are under additional duties (Rules 9(c) and 10(i)), which limit to some degree their right to fish there.Google Scholar
74 See Plant, Security and the International Law of Maritime Navigation, Manchester forthcoming Chapter 5.Google Scholar
75 Vessels restricted in their ability to manoeuvre are given their ‘ privileges’ precisely because they engage in activities additional to navigation, and because those activities affect their manoeuvrability. These ‘privileges’ must not be abused, however. An aircraft carrier engaged in launching and landing operations, for example, ‘may not be justified in proceeding at high speed in congested waters or when approaching yachts, vessels engaged in fishing or other low speed vessels’: Cockcroft, A. and Lameijer, J., Guide to the Collision Avoidance Rules, 4th ed., London, 1990, p. 136.Google Scholar
76 Special rules for nuclear-powered vessels proposed at the SOLAS 1960 Conference were not adopted.Google Scholar
77 The dangers posed by collision are particularly great for passengers on large passenger ships and to third parties and the environment following incidental releases of nuclear or other hazardous and noxious substances. Warbrick (supra n. 1, at 140) argues that it may become necessary to give ‘privileges’ to passenger and high pollution-risk ships. Following the Mont Louis incident of 1984, when a vessel carrying a nuclear cargo sank in waters off Belgium, Belgium and the FRG made proposals, not accepted, for a ‘keep away’ automatic sound signal or warning signal for vessels carrying very dangerous cargoes: NAV 31/4, 25 April 1985.Google Scholar
78 Notably special traffic lanes in traffic separation schemes and deep water routes.Google Scholar
79 Padfield, An Agony of Collisions, at 168–69.Google Scholar
80The St. Cyran and the Henry (1864) 12 W.R. –.Google Scholar
81 Even where a vessel is permitted under the ‘general prudential’ rule to depart from the strict requirements of the COLREGS, uncertainty persists; Rule 2 (b) does not itself provide specific guidance as to what a ship falling within it should do.Google Scholar
82 Plant, Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Chapter 9.Google Scholar
83 See further: Plant, Security and the International Law of Maritime Navigation, Chapter 5.Google Scholar
84 Conventional vessel speeds have grown with improved hull and screw designs and new means of propulsion; light naval vessels and aircraft carriers can operate at 35—45 knots; and even modern container and other merchant ships at 25—30 knots. Non-displacement craft operating in the non-displacement mode are capable of speeds of up to 65 knots in the Dover Strait and even more in calmer waters.Google Scholar
85 Captain Syms, paper to Practical Navigation in the Dover Strait, Dover Branch, Nautical Institute, 18 May 1979, p. 43; also ‘High Speed at Sea in the ‘80s’, Seaways, November 1980.Google Scholar
86 Of course, there has been some degree of discrimination on the basis of speed since 4 November 1995, with the entry into force of new Section 13 of Annex 1 to the 1972 COLREGS, and a new International Code of Safety for High-Speed Craft applies to ships built on or after 1 January 1996, under new Chapter X of SOLAS 1974: IMO Res. MSC.36(63), 20 May 1994.Google Scholar
87 See, e.g. IMCO docs. CR/CONF/C.2/SR.4, pp. 11–12, and /SR.9, 25 May 1973, pp. 10–19. Many large vessels try to navigate so as to keep a ‘domain’ free of other vessels around themselves; according to Mostert, N. (in Supership, New York, 1975, at 286), large tankers often turn full circle in open waters in order to avoid other ships coming within two to two and one half miles.Google Scholar
88Hardwick, J., ‘ Hovercraft and the COLREGS’, 15 Journal of the Institute of Navigation (1963), 383–384.Google Scholar
89 The IMCO Secretariat's draft Rule 9 (‘ Action at long range’) was rejected in the face of opposition from, inter alios, the USA and USSR (CR/CONF/3, pp. 59 and 61), on the ground that it was potentially confusing. Cockcroft (in 860 US Naval Institute Proceedings (October 1974), 84) suggests, however, that these two States really had the continued validity of naval shadowing operations in mind: see further Plant, Security and the International Law of Maritime Navigation, Chapter 5.Google Scholar
90 The all-round, amber flashing light used at present is not intended to indicate a fast vessel but one unusually prone to side-slipping in windy conditions.Google Scholar
91 They normally operate with heavy reliance on radar such that they can maintain their speed in all conditions of visibility. They also have: short stopping distances at high speed; limited turning ability, hovercraft tending to sideslip and hydrofoils generally having only small rudders; and high minimum speeds, control of a moving hovercraft becoming more difficult if it drops below 12 knots, and hydrofoils coming off the foils below 16 knots: Draysey, G., ‘High-Speed Vessels and the Collision Regulations’, 25 Journal of Navigation (1972), 263, 265. But see IMCO doc. CR/CONF/C.2.SR.111, pp. 12–14, esp. the UK delegate's comments.Google Scholar
92 The IMCO Secretariat's draft Rule 23 to this effect (CR/CONF/3, p. 111) was rejected at the 1972 diplomatic conference, despite overwhelming support for it in the Royal Institute of Navigation's questionnaire exercise and existing UK practice.Google Scholar
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94Hinsch, 33 Journal of Navigation (1980), 403.Google Scholar
95 ‘The stand-on vessel cannot know the state of awareness prevailing in the give-way vessel; the stand-on vessel also may not know the manoeuvring capabilities of the give-way vessel and, consequently, may stand on until a dangerous situation has arisen’: GCBS Pamphlet, at 27.Google Scholar
96Lott's, E.g. Collision Prevention Rules, taught at US Fleet training posts since 1957;Google Scholar
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97 See, e.g., Padfield, An Agony of Collisions, at 168–69 and 210–15Google Scholar
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98 Contra Cockcroft, ‘ COLREGS – the Case Against Major Change’, in Seaways, December 1994, at 3–5.Google Scholar
99 Bilateral solutions to this have been sought in Incidents at Sea Agreements between the USSR on the one hand and the USA, UK, Netherlands and France on the other: see Plant, Security and the International Law of Maritime Navigation, Chapter 5.Google Scholar
100 As to which see Plant, Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Chapter 12.Google Scholar
101 Deep sea pilotage and tug escort are alternative possibilities.Google Scholar
102Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, esp. Chapters 9 to 11.Google Scholar
103IMO Res. MSC.31 (63) and MSC.46(65).Google Scholar
104 Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, in IMO Res. A. 720(17), Annex.Google Scholar
105 It called upon Member States to ‘ recognise the need for effective protection of the Great Barrier Reef region and inform ships flying their flag that they should act in accordance with Australia's system of pilotage for merchant ship’: IMO Doc. MEPC 45/30, 16 November 1990.Google Scholar