The following is Part 3 of a four-part series on the legacies of the Titanic disaster:
SOLAS, the IMO and International Oversight
The International Convention on Safety of Life at Sea (SOLAS) — in fact, a series of conventions — is the “grandchild” of the TITANIC tragedy. There have been five formal SOLAS Conventions: those of 1914, 1929, 1948, 1960, and 1974. The 1914 Convention was effectively scuppered by World War I. Since 1974, the “tacit acceptance process” has allowed constant updates to be made to the existing Convention, without the need for majority vote by contracting governments. This ensures that the SOLAS Convention remains open to changes reflecting developing maritime technologies and systems. All of the following consolidated additions to SOLAS are therefore referred to as “amendments” to SOLAS 1974. The 1973 and 1978 Protocol to the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) contains a similar tacit acceptance procedure for amending that Convention, and also includes deterministic intact and stability requirements for oil-carrying vessels.
The IMO Search and Rescue Manual has been designed to assist governments in implementing the objectives of the International Convention on Maritime Search and Rescue, 1979. The manual is intended to provide: “guidelines rather than provisions for a common maritime search and rescue policy, encouraging all coastal States to develop their organizations on similar lines and enabling adjacent States to cooperate and provide a mutual assistance.
The IMO also has developed Regulations on Sub-division and Stability of Passenger Ships as an Equivalent to Part B of Chapter II of the International Convention for Safety of Life at Sea, 1960. The historical background of these Regulations is instructive. The provisions of SOLAS 1960 dealing with the sub-division of passenger ships were based on studies conducted prior to and after the first International Safety Conference, 1913-14. These studies were undertaken from 1912 to 1924 and were influenced by the construction of then existing ships. When the 1960 SOLAS Convention was adopted, no account was taken of the evolution of ship design in the many years prior to the adoption of that Convention. Thus, by the time SOLAS 1960 came into being, the method of subdivision had become meaningless because of considerable changes in design. Under the 1960 SOLAS, two different ships were considered to be equally safe if they had the same value of subdivision factor, although these ships may have had quite different actual capabilities to withstand damage. The Regulations, developed by the Sub-Committee on Subdivison and Stability, emerged from extensive studies which involved the collection and analysis of data on collision damages, the subdivision of existing ships and the stability of ships in damaged condition, as well as an evaluation of new methods in dealing with subdivision. More than 25 international meetings were held, and 150 relevant papers were considered. The Regulations adopted were based on the concept of probability of survival. They embodied new and very complex subdivision requirements.
Polar Navigation and the North Atlantic Ice Patrol
The draft SOLAS Convention, completed on Jan. 20, 1914, was a precedent-setting instrument; it provided among other things for ice observation and an ice patrol service, and, although, the Convention never entered into force, thanks to the onset of World War I, the 13 nations that did join as states party agreed to pay a proportionate part of the ice patrol expense. The U.S. was invited to undertake the management of the service, and did so. Although the Convention was eventually superceded, the Ice Patrol Agreement did in fact go into effect on July 1, 1915; in the meantime, patrols began pursuant to a directive of President Wilson, and on Feb. 11, 1914, the Revenue Cutter Seneca sailed for the Grand Banks. In 1922, the International Ice Patrol began to assign an ice observation officer at sea for the entire iceberg season. Although World War II forced the suspension of the International Ice Patrol for the 1942-1945 seasons, the improvement of long-range aircraft made possible the era of aerial ice reconnaissance, which continues to this day. Currently, the IIP Ice Reconnaissance Detachment is based out of St. John’s Newfoundland. Since 1913, no ship that has followed the warnings issued by the International Ice Patrol has struck an iceberg. Today, ice observations are much more sophisticated than they were in the early years of the 20th century, and much observation is undertaken using forward-looking airborne radar (FLAR).
In 2009, IIP began using the HC-130J with the multimode radar for iceberg reconnaissance. The ice patrol uses the radar’s search mode, which scans 360 degrees, for detection and its ISAR mode for identification. The IIP is also in the early stages of testing the Coast Guard’s newest airframe, the Ocean Sentry, equipped with a multimode radar for iceberg reconnaissance.
In a conference on TITANIC and the Arctic, it is obvious that conditions as basic as sea and weather conditions have changed, and some have stayed the same. A few years ago, little thought was given to navigation in Arctic waters, except by a few specialists.
This year, the amount of sea ice in the Arctic has fallen to the lowest level on record. By late August, satellite tracking of Arctic sea ice disclosed that it covered about 1.58 million square miles, or less than 30 percent of the Arctic Ocean’s surface. This information comes with weeks still remaining in the summer melting season. The U.S. National Snow and Ice Data Center, a government research facility in Colorado, further announced that the amount of sea ice has declined more than 40 percent since satellite tracking began in the late 1970s.
Scientific forecasts, based on computer models, suggest that a time will come when the Arctic will be completely free of ice in the summer. It is now considered, in light of the latest figures, that that moment may come much earlier, possibly by the end of the present decade. While sea ice conditions tend to vary, and only a 33-year record of satellite observations exists, the rapidly progressing pattern of melting indicates that new Arctic shipping routes will open up, together with easier access to oil and other minerals, and of course to cruise shipping. It is also likely that the calving of icebergs from Greenland and its environs may raise the risk of encounters or collisions, and not just from increased Arctic vessel traffic. In the short run, the number of bergs entering Atlantic sea lanes is also likely to grow.
Exposure to liability
In the century since 1912, shipowners, and others, have recognized that exposure to claims for death or personal injury can be devastating. For Canadians, comparisons might be drawn with the sinking of EMPRESS OF IRELAND in the Gulf of St. Lawrence, in 1914, with loss of life that was as great as that of TITANIC. In both countries, there has been a great change in the fields of civil and criminal liability. In the United States, in 1912, there was no Death on the High Seas Act. In 1912, the concept of tort liability for vessel owners was subject to well-defined principles of limitation of liability, based on the Limitation Act of 1851, currently set forth in 46 U.S.C. sections 30505, as amended. In addition, the assets of a shipowner or operator could be sheltered in accordance with the concept of incorporation, built around corporate enterprise limitation. Then, as now, insurance protected the owner from ruin in cases of major liability.
Opinions in the United States and Canada are different today, as expressed in the dissenting opinion of an American judge, Alex Kozinski in Delta Country Ventures, Inc. v. Magana, 986 F.2d 1260, 1266-67 (9th Cir. 1993) “The Limitation of Liability Act is an anachronism, a holdover from the days when encouraging commerce by sea was considered more important than providing full redress to victims of maritime accidents. As I have said before, such a law no longer makes sense…One of the many unfortunate consequences of the Limitation of Liability Act is that it leads courts to contort the law to avoid unjust results: ‘Misshapen from the start, the subject of later incrustations, arthritic with age, the Limitation Act has provided the setting for judicial lawmaking seldom equaled.’” (citation omitted).
In 1914, the TITANIC claims, and the owner’s petition for limitation of liability under the United States Limitation Act, came to trial and, in due course, made their way to the Supreme Court. Justice Holmes promptly applied the U.S. Limitation Act to claims from the sinking of the ship, at least as to any claim made in the United States, even though the ship flew a foreign flag and sank on the high seas, Oceanic Steam Nav. Co. v. Mellor, 233 U.S. 718 (1914). Coverage of foreign vessels is now codified by U.S. law.
In 1913, the claims for death and personal injury did not include, as they would today, those for trauma and other forms of injury not thought of in those long-ago days. Moreover, most of the claims were settled out of court, and for a fraction of what would be recovered in 2012. It should be remembered, however, that tort claims like other damages, are a private but very real part of the safety enforcement machine.
Since 1913, a number of conventions have been adopted, culminating in the 1976 International Convention on Limitation of Liability for Maritime Claims (“the London Limitation Convention”). The limits set under this convention have been amended upward over time, but it is important to recognize the now-accepted standard for defeating the shipowner’s right to limit thereunder:
“A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act of omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.”
Considerable effort has been made to bring Canadian and United States law, and that of other nations, into an internationally coherent regime of limitation of maritime liability, taking into account domestic laws on claims for death and personal injury on the high seas. These efforts have not been entirely successful, certainly not in the United States — there, courts have decided that, for privity or knowledge sufficient to defeat limitation, it is enough to prove (under the 1851 U.S. Act) that the shipowner “should have known.” Under this standard, it is likely that the owner of TITANIC would be unable to limit liability at all, were the sinking to occur today.
Coming soon: Lessons Learned: Causation; Deja Vu, All Over Again
Clay Maitland is a maritime industry leader who is Managing Partner of International Registries Inc. and Founding Chairman of the North America Marine Environment Protection Association. He can be reached at firstname.lastname@example.org or through his website/blog at www.claymaitland.com.