Admiralty Law Part 9

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of Admiralty Law will be explored.

Seamanship and the Collision Regulations (COLREGS)

1. The COLREGS

   The COLREGS are a code of good practice endorsed by law. There are 38 Rules and four annexes. The Rules are divided in parts:

   1. Part A: General
   2. Part B: Steering and Sailing
   3. Part C: Lights and Shapes
   4. Part D: Sound and Light Signals
   5. Part E: Exemptions.

   There is extensive case-law for the various COLREGS, some of which are more frequently infringed than others. There are no more serious or less serious infringements, but the courts, when they apportion liability, do look at the degree each infringement contributed to the collision and the damage within the factual matrix of each incident.

   The COLREGS included in Part B apply in any condition of visibility. Rule 5 of Part B requires ‘proper look-out’ by sight and hearing as well as by all available means appropriate in the prevailing circumstances.

   This is to identify any risk of collision early in order to avoid it. In The Maritime Harmony such an infringement was evident as in heavy fog there was no proper radar watch. The lack of a proper look-out is one of the most frequently occurring contributors to collisions (The Mineral Dampier).

   Rule 6 of Part B requires that ‘safe speed’ is observed. What is safe speed depends on the ship and the conditions it encounters. The COLREGS require that in determining safe speed various factors have to be taken into account, such as visibility, traffic, night time, wind and current direction as well as the draught in relation to the available depth of water; plus the situational awareness obtained through a
   proper look-out.

   One example is The Roseline, where the ship’s speed was twice as much as required in the circumstances of dense fog and the close proximity between the two colliding ships. However, slow speed may by itself be unsafe speed.
   Rule 7 provides how navigation officers are to determine whether a risk of collision exists. In determining the risk of collision the following considerations should be taken into account:

   1. a risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change
   2. a risk may exist even when an appreciable bearing change is evident when approaching a very large vessel, or approaching a vessel at close range.

   For an example of a situation of danger see The Bow Spring.

   Notably, Rule 7(1) states that if there is doubt whether a collision risk exists then it must be presumed that such a risk exists. Thus, a precautionary approach is taken and this requires that the ship must take action even if its officers are not certain whether there is a risk of collision.

   Rule 8 of Part B outlines general principles for reacting to a risk of collision. Such actions must be in accordance with the principle of good seamanship. If course is altered then this must be obvious enough to be observable by the other ship. Slowing down or even reversing the engines is also permissible.

   Rule 9 regulates the conduct of ships in narrow channels. Ships should keep as near to the outer limit of the channel which lies on their starboard side as is safe and practicable. For an example of infringement see The Konigen Juliana.

   Rule 10 regulates the conduct of vessels within traffic separation schemes. Such schemes are designated, for example, in straits or in the approaches of ports, and operate by declaring two lanes along the strait. Ships are required to cross the strait following the lane that goes in their direction of travel. Ships are discouraged from crossing the separation scheme but when they have to do so they must cross at right angles from the direction of flow (The Siboeva v The Vitastar).

   The second section of Part B of the COLREGS applies to ships in sight of each other (Rule 11). Rule 12 is about the conduct of sailing vessels when in sight of each other.

   Rule 13 deals with overtaking. This can be done on either side of the vessel being overtaken. However, an overtaking vessel should keep out of the way of the vessel being overtaken. (The Nowy Sacz).

   Rule 14 deals with a head-on situation. In such a case both vessels should alter their course to starboard (The Argo Hope).

   Rule 15 deals with a crossing situation. The vessel which has the other on its starboard should keep out of the way and avoid crossing ahead of the vessel (The Toni).

   Rule 16 provides that the action by the ‘give way’ vessel should be to keep well clear of the other and the ‘stand on’ vessel should keep its course and speed. However, Rule 17 of the COLREGS requires the ‘stand on’ vessel to act in order to avoid the collision if it becomes apparent that the ‘give way’ vessel does not act according to the
   requirements of the COLREGS.

   Rule 18 defines which is the ‘give way’ vessel when different types of vessel become in sight of each other. For example, a sailing vessel, a fishing boat engaged in fishing, a vessel restricted in its ability to manoeuvre or a vessel not under command must be avoided by a power-driven vessel.

   Rule 19 deals with restricted visibility and provides that in such a situation all means of observation should be used and caution should be taken. See, for example, The Ercole in which both ships took the wrong actions (Owners of the ship ‘Bulk Atlanta’ v Owners of the ship ‘Forest Pioneer’).

   Part C of the COLREGS concerns the lights (during the night) and the shapes (during the day) that each vessel must display in order to notify the other users of the sea of its presence and its particular situation.

   Part D of the COLREGS concerns light and sound signals used for the communication between ships.

   Part E provides for exemptions in the various technical requirements. The application of the collision regulations is not always clear cut. In the The Alexandra I and Ever Smart where it was held that the crossing rule did not apply when a ship navigates out of a narrow channel and another navigates towards that channel with a view to entering it.

   See also the Dream Star a case of the Singapore High Court [2017 where the operation of COLREGS 13 and 15 are seen.

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This article is written by our Principal Associate, Chakaravarthi