Collisions: What the Courts Say - Part II

In the second of this series of articles, Harry Hirst of Ince & Co considers how various court cases involving collisions have provided practical guidance to duty officers (OOW) and masters on taking action to avoid collision. A common theme is the use of time by the OOW.

Taking Avoiding Action

Rule 8 of the COLREGS provides – “(a) Any action 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.”

Positive Action

Avoiding action invariably begins with an alteration of course, and as the COLREGS acknowledge – “If there is sufficient searoom, alteration of course alone may be the most effective action to avoid a closequarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.” [Rule 8(c)]

What constitutes a “substantial” alteration of course will depend upon the circumstances, but it needs to “be large enough to be readily apparent to another vessel observing visually or by radar…” [Rule 8(b)].

Reported cases suggest that where a close-quarters situation is developing in conditions of restricted visibility it should be at least 30°, and preferably 40°to 60°: The Roseline [1981] 2 Lloyd’s Rep.411; The Oden [1989] 1 Lloyd’s Rep. 280; The Maloja II [1993] 1 Lloyd’s Rep. 48; The Hakki Deval [2006] EWHC 2809. Smaller alterations might be more readily apparent visually when the two vessels are in sight of one another, and today with the use of ARPA they can be detected more readily on the radar, but OOWs would do well to apply these same criteria.

Taking Action – Timing is Key

Distance is often a criteria that OOWs apply when taking action however avoiding action should always be about timing and not about distance. Avoiding action is frequently taken too late, with OOWs waiting until the other vessel is about 2 or 3 miles away before altering course.

Consider, for example, two container ships both proceeding at 20 knots on broadly reciprocal courses. Their combined speed of approach is 40 knots; and at 40 knots, the OOW who waits until the two vessels are about 2 to 3 miles apart before altering course is leaving himself only 3 to 5 minutes to avoid collision.

Reported cases suggest that “ample time” insofar as the give-way vessel is concerned when the two vessels are in sight of one another, and for both vessels when navigating in restricted visibility, is at least 12 minutes before the two vessels would otherwise collide; that is, by latest C-12.

Action by Stand On Vessel

For example, in The Samco Europe [2011] 2 Lloyd’s Rep.579, a collision in good visibility, the nautical assessors advised Mr Justice Teare that MSC Prestige, as the give-way vessel in a crossing situation, should have altered her course to starboard at about C-12 when Samco Europe was at a range of 8.1 miles.

Furthermore, in the Rickmers Genoa [2010] EWHC 1949, a collision in restricted visibility, Mr Justice Steel was advised by his nautical assessor that both vessels should have altered course substantially to starboard by C-12.

For the stand-on vessel in a crossing situation, the reported cases suggest that the obligation to take action under Rule 17(b) is unlikely to arise before C-5. In The Hanjin Madras [2001] 2 Lloyd’s Rep.419 the Court of Appeal noted it was common ground that Rule 17(b) would not apply “until after C-5 and probably not until C-4 or later”; whilst in The Topaz [2003] 2 Lloyd’s Rep. 18 Mr Justice Gross accepted the advice of his nautical assessors and found that Rule 17(b) required the Topaz to take action at about C-5.

The stand-on vessel may of course, take avoiding action earlier under Rule 17(a) (ii), and will often be required to do so as a matter of good seamanship. Prior to taking action under this Rule however, the OOW should first alert the give-way vessel by sounding the signal prescribed in Rule 34(d), and then allow the give-way vessel a reasonable time in which to respond. A reasonable time would be in the order of 3 minutes or so, which suggests the stand-on vessel should be taking action under Rule 17(a)(ii) some time between C-9 and C-5; and this is consistent with the reported cases.

For example, in The Hanjin Madras [2001] 2 Lloyd’s Rep.419, the Court of Appeal found that the Mineral Dampier should have taken action under Rule 17(a)(ii) sometime after C-9 and at or before C-5; whilst in The Topaz [2003] 2 Lloyd’s Rep. 18 Mr Justice Gross found that the Topaz should have taken action under this Rule by the time when the vessels were about 3 miles apart, at about C-10 to C-8. More recently, in The Samco Europe [2011] 2 Lloyd’s Rep. 579 Mr Justice Teare accepted that the Samco Europe was entitled to take action under this Rule at C-7.5.

Find Out More

For further information on Collisions, please refer to our Loss Prevention Guide: Collisions – How to Avoid Them which provides further guidance on the COLREGS.

The first article discussed the importance of early detection and situation appraisal can be accessed at: www.nepia.com/insights/signalsonline/ships/collisions/collision-atsea-what-the-courts-say