By Jim Austin
A collision discussed here previously has seen its (presumably) final Court of Appeals finding rendered. It and the finding are reviewed with a focus on ColReg 2(b) — the rule that, in good part, formed the centerpiece of the courts’ actions.
ColReg 2(b) — In construing and complying with these rules, due regard shall be had to all dangers of navigation and collision, and to any special circumstances, including the limitations of the vessels involved, which may make a departure from the above rules necessary to avoid immediate danger.”
The General Prudential Rule has remained virtually unchanged within the body of the International Navigation Rules for well over a century, initially as Rule 24 (1864); then as Article 27 (1897), Rule 27 (1954); and currently as Rule 2(b) of the ’72 ColRegs. While the rule provides a threatened vessel with an escape clause of last resort, the judiciary (as well as mariners themselves) continue to wrestle with not only its intent, but its compass.
ColReg 2(b) has two legs: for a vessel to justify a departure from the rules in a specific instance, not only must (a) the circumstance be special but (b) the danger be immediate. It’s occasionally referred to as the “special circumstance rule,” but this can be misleading because the existence of a special circumstance represents only one leg. Numerous court cases have foundered when one was present, but the other lacking. (The circumstance was special, but the danger not immediate — or vice versa). This collision and the court actions that followed bring focus to a possible new variant of that problem.
Maneuvering according to a prearranged plan, a collision between a tanker and one of the two escorting tugs occurred in 2002. Six years and two visits each to a U.S. District Court and a Court of Appeals later, the responsibilities among vessels sailing in concert and maneuvering according to a prearranged agreement remains in limbo — practically, if not legally. (The ColRegs applied in the area of concern.)
In the waterway under consideration, federal law requires that a tanker proceeding beyond a certain point be escorted by two tugs. Radio agreement as to the joint maneuver was reached between tanker and tugs; all had exercised similar escort tactics in the past, including agreement that during the evolution the tugs would adjust their movements to conform to those of the tanker.
As the tugs proceeded from a position ahead in the 1,000-yard-wide inbound lane of the traffic separation scheme (TSS), the tanker would overtake and pass between them at a relative speed of about 2 knots — the tug to starboard falling in astern, while the other took position on the tanker’s port bow. All three had autopilots set to 058 T, the direction of the TSS lane. The tanker and tug that would eventually assume her position astern periodically adjusted headings to compensate for wind and current, the tug to port reportedly did not.
Because the lateral separation between tanker and the tug to port continued to narrow, the tanker’s pilot radioed the tug to see if things were all right — the latter replied that they were. Shortly (10 seconds or so) later, collision occurred, with the tug being pushed ahead and then to the tanker’s starboard side, nearly capsizing as she heeled to port. There were no casualties but considerable damage. The case was heard by a U.S. District Court. The tug argued that the tanker had struck her from virtually astern, thus the tanker’s violations were failure: (a) to maintain a proper lookout — Rule 5, (b) to act to avoid collision — Rule 8, (c) to remain clear as the overtaking vessel — Rule 13, (d) to sound maneuvering signals — Rule 34.
Claiming that the tug had veered suddenly across her bow, the tanker alleged (a) inadequate lookout on the tug and that (b) loss of situational awareness on the part of the tug operator were ultimately responsible. Additionally, the tanker claimed that since the group was maneuvering in accordance with prearranged agreement, this was a “special circumstance” falling under ColReg Rule 2(b); thus ColRegs 8 and 13 didn’t apply. One thrust of that argument (and accepted by the District Court) was that “no court had applied the overtaking rule to vessels that were operating in concert pursuant to maneuvers conducted under an agreed upon plan.”
For those keeping count, the court did not find that the tanker violated Rules 5 or 34, as there was no essential lack of a lookout function (the bridge was well aware of the situation) and the course adjustments to compensate for set/drift within the TSS did not require maneuvering (“rudder”) signals..
The District Court stated that, although the plain language of Rule 2(b) does not expressly provide for vessels to invoke the special circumstances exception if maneuvering under pre-arranged agreement, the courts have “either expanded the scope of 2(b) or have created a wholly separate category of special circumstances involving vessels operating in concert and pursuant to agreed maneuvers” (emphasis added). Nevertheless, the court held that the tanker was not completely blameless in her “failing to take more decisive action once the proximity of (the tug) exceeded (the pilot’s) comfort zone” and apportioned the fault 75/25 percent for the tug and tanker respectively. The case went to the U.S. Court of Appeals for the Ninth Circuit (its first appeal).
As for Rule 8, the Court of Appeals noted that although “it might well be that the tanker’s violation of Rule 8 contributed relatively little to the eventual collision” (considering the tug’s failure to adjust course and apparent loss of situational awareness), it was concerned with the other extreme, that “such considerations bypass the ColRegs completely”.
Although the Court of Appeals agreed with the District Court’s observation that “jurisprudence regarding the scope of the special circumstances exception has done little to clarify murky waters,” it held that the plain language of the ColRegs precluded such a broad exception and remanded the case to the District Court “to reconsider the relative liability of the parties consistent with this opinion,” adding that since the tanker was in fact overtaking, nothing in the text of Rule 13 negated the tanker’s obligation to avoid.
On the remand, the District Court found that the tug had violated ColReg 5 (failure to maintain a proper lookout) and 17(b). Interestingly, whereas the tug had claimed that, as the overtaken vessel, it was her duty under ColReg 17(a) to maintain course and speed, the court pointed out the mandate under the very next paragraph, 17(b), that a vessel finding herself in such a situation, “shall” take such action as will best aid to avoid collision. As for the tanker — it was determined that while the tug carried the greater seriousness of blameworthy faults, the tanker was less than aggressive in taking action when becoming increasingly uncomfortable with the tug’s closing, and therefore violated ColRegs 8(e) and 13(a).
Accordingly, the District Court revised its initial fault allocation and found the tug 70 percent at fault and the tanker 30 percent. The tug appealed again — challenging the District Court’s comparative fault assessment, and although a number of factors formed the basis of the appeal (admissible evidence, etc), the interest here is the ColReg limbo, in which vessels maneuvering in accordance with a prearranged plan apparently remain. In early July, the Court of Appeals affirmed the findings of the trial court, likely putting an end to it.
The same week that the (presumably) final Court of Appeals decision came down, an unrelated news item appeared — delivery of Mozah, the world’s largest LNG tanker. Maritime technology advances have outpaced the Navigation Rules in the past, radar being one example. The number of deep-draft vessels carrying vulnerable cargoes and maneuvering with multiple escorts in restricted waters is increasing. That fact should invite a second look at the question of multiple vessels maneuvering according to previous agreement.
The foresight of the District Court — that cases suggest that the “courts have created a wholly separate category of special circumstances involving vessels operating in concert and pursuant to agreed maneuvers” — seems to recognize the need for such a category unrelated to those envisioned by framers of the General Prudential Rule intended to address vessels unrelated in intent or agreement, proceeding independently in various directions and on various routes.
But for those vessels proceeding on a common mission toward an objective, exercising agreed-upon maneuvers to be done in concert in confining waters, ColReg 2(b) is the square peg in a round hole. As efforts continue to employ 2(b) in situations for which it was not intended, the courts will likely continue to reject its broadening. Is it time for a new paragraph to be added to Rule 2 for vessels operating under a common intent, utilizing mutually agreed-upon maneuvers while proceeding together as a unit?