Whatever became of the change to COLREGS Rule 8?

With little fanfare or noticeable training effort, the nations party to the 1972 COLREGS Convention amended Rule 8(a) in November 2003 in order to reduce the number of collisions attributable to “conflicting action” by two approaching vessels. Yet over three years later, it is difficult to find a mariner who can identify or explain the 2003 change, or a “conflicting action” collision for that matter.

The 2003 change added a single clause to the existing rule (the added words are in bold):

8(a): Any action to avoid collision shall be taken in accordance with the rules of this Part and, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.

So, just what was this change supposed to accomplish? You might never guess it from reading the language of the new rule, but the IMO Subcommittee on Navigation Safety was hoping that the change would reduce the incidence of “conflicting action” that leads to collisions. Conflicting action refers to the situation in which one vessel makes a small turn to port, to “open CPA a bit,” while the other vessel turns to starboard. The avoiding actions nullify each other, resulting in collision.

The amendment’s goal was to guard against the practice by some vessels of meeting and fine-crossing situations (where, according to a Massachusetts Institute of Technology study, 50 percent or more of the collisions occur) to make a preemptive turn to port in violation of the Steering and Sailing Rules. For example, a vessel in a meeting situation in which the approaching vessel is slightly to starboard might make a preemptive turn to port and argue later (after colliding with the other vessel, which followed the rules and turned to starboard) that the port turn was authorized by — even required by — Rule 8(d), which says that any action taken to avoid collision must result in the vessels passing at a safe distance.

An analogous argument might be made in defense of a port turn in restricted visibility to avoid a vessel ahead, in contravention of Rule 19(d). The amended rule now specifies that if risk of collision exists and Rule 8 is thereby triggered, action to avoid collision must comply with the other Steering and Sailing Rules, such as Rule 14, the head-on situation; Rule 15, crossing situations; or Rule 19, in conditions of restricted visibility when vessels are not in sight. (Note, however, Rule 19(d) provides greater flexibility.) The mariner will therefore find no refuge in Rule 8(d) and an accompanying argument that the port turn was merely intended to ensure the vessels passed at a “safe distance.”

Of course the change does not make it any clearer when risk of collision arises, thereby triggering Rule 8. Some might argue, however, that the mere fact that a vessel turned to “open CPA” is a tacit admission that risk of collision existed, thereby barring the turning vessel from later denying that a risk existed.

The problem is a recurring one for high-speed craft (HSC), which may find themselves in the stand-on vessel position as the approach develops, but nevertheless may want to take preemptive action early on. Indeed, in the accident report on the collision between Diamant and Northern Merchant on Jan. 6, 2002, the U.K. Marine Accident Investigation Branch referred to (but did not endorse) the “unwritten rule” that HSC keep out of the way of all other craft.

COLREGS experts throughout the world apparently acknowledge that many of the national maritime authorities have been slow to follow through on the implementation and training necessary to ensure mariners understand their obligations under revised Rule 8(a). Writing in the January 2005 issue of Seaways, the journal of the Nautical Institute, a leading British expert, Capt. Norman Cockcroft, suggests that the International Maritime Organization might need to take steps to improve implementation. An Australian expert, Capt. Roger Syms, seizes on Rule 8(a) implementation problems to suggest a more fundamental problem with the IMO and how it handles COLREGS amendments. Readers can assess for themselves how effective the United States has been in ensuring that mariners and maritime training establishments are aware of and understand the purpose behind the COLREGS Rule 8(a) amendment.

The fact that the new rule only expressly requires that actions taken to avoid collision be carried out in accordance with “this Part” of the COLREGS, a reference to Part B of the rules (i.e., Rules 4-19) led some to question what happened to Rule 2, which is in Part A. Did the 2003 amendment suggest that collision avoidance maneuvers did not need to comply with Rule 2(a) and 2(b), which require mariners to adhere to the standards of good seamanship and to exercise prudence in the face of special circumstances?

Most certainly not: The new language admonishes that collision avoidance action “shall be taken in accordance with the Rules of this Part” (meaning Part B); it does not say that avoiding action shall be taken only in accordance with the rules in Part B. Nevertheless, the frequency of questions on the matter among professional mariners demonstrates the need for a clear affirmation of the continuing applicability of Rule 2 by the IMO and national authorities charged with implementing and enforcing the COLREGS.

Craig H. Allen is a retired Coast Guard officer, and a Fellow in the Nautical Institute and the Royal Institute of Navigation. He currently holds the Charles H. Stockton Chair in International Law at the U.S. Naval War College.

By Professional Mariner Staff