Wednesday, July 15, 2009

Modern electronic navigation systems have the potential to improve vessel navigation safety and reduce accidents.  The potential of these new systems is unlikely to be realized, however, if the officers keeping the navigation watch are not fully trained and properly qualified in their use.  Thus, fully realizing the potential in electronic navigation will require improved training, a wider spectrum of knowledge across the industry and better procedures by vessel owners and managers to assess qualification and proper use.  At the same time, as incidents related to the use of AIS or ECDIS occur, courts are putting owners and managers on notice that such training and monitoring is required to avoid or limit their liability for accidents.
Using AIS For Collision Avoidance
A vessel involved in a collision has the burden of establishing that any failure to properly use its navigation equipment did not contribute to the casualty.  The maritime industry is currently engaged in a debate over whether AIS is one of the navigation systems that must be used for collision avoidance.  The U.S. Coast Guard’s recently proposed rules requiring the AIS to be placed where it can be readily observed by the officer conning the vessel will serve to increase this debate.
Many mariners, however, are apparently not waiting for further regulatory guidance.  Mariners, many of whom have little or no AIS training, are using information obtained from AIS to make VHF calls to negotiate collision avoidance.  There is also evidence that the use of AIS text messaging for collision avoidance situations is also increasing.   
Without formal AIS training and the attendant knowledge of it limitations and without clear regulatory guidelines, such informal practices have the potential to introduce additional risks into the navigation situation.  Such risks are demonstrated in an AIS-assisted collision not long after the adoption of AIS industry-wide:
§  In June 2004, the M/V HYUNDAI DOMINION collided with the M/V SKY HOPE in the South China Sea.  The HYUNDAI DOMINION was the stand-on vessel in a crossing situation.  As the situation developed, it became apparent that the SKY HOPE was not giving way.  Instead of taking proper action to avoid the collision, however, the watch officer on the HYUNDAI DOMINION, who had received minimal training on the use of AIS, wasted valuable time sending AIS text messages to the SKY HOPE, attempting to warn the SKY HOPE to keep out of the way.
ECDIS Related Groundings
The transition from paper charts to electronic charts also poses challenges for the maritime industry that are as great as, or greater than, those encountered in the adoption of AIS.  While many aspects of ECDIS provide benefits in time savings and accuracy, the potential benefits are highly dependent on proper use.  If watch officers are unfamiliar with the systems in use, or are confused by the information presented, ECDIS can become more of a liability than a benefit.  The change in mind-set needed to shift from paper to electronic charts intensifies the risks caused by lack of adequate ECDIS training. 
Inadequate or non-existent training and the resulting unfamiliarity with, or improper use of, ECDIS and other electronic chart systems is demonstrated by several recent casualties:
§  In October 2004, the fishing vessel GULF SHORE allided with an unlighted offshore rig in the Gulf of Mexico.  The vessel was equipped with an electronic chart that had an obstruction warning system.  The vessel owner had not provided the master with training in the use of the electronic chart system and the master had never read the operating manual.
§  In January 2008, the Roll on Roll off Passenger ferry PRIDE OF CANTERBURY grounded on a charted wreck while sheltering from heavy weather off Deal, Kent.  The officer of the watch was unaware that there was a charted wreck on a nearby shoal because he was not trained in the use and limitations of the electronic chart system which had the wrong settings at the time of the accident.
§  In May 2008, the dry cargo vessel CFL PERFORMER ran aground off the east coast of England.  The ensuing investigation concluded that the accident was caused by the improper use of the ECDIS.  Despite those on the bridge not having had adequate ECDIS training, the crew was, in fact, relying heavily on the ECDIS for situational awareness and navigation.
Training
Vessel owners and operators have an obligation to provide a trained and competent crew.  A vessel may be found un-seaworthy and the owner denied the right to limit its liability for a casualty if a court finds that the vessel was manned with an incompetent crew.  Thus, inherent in having mariners fully familiar with the use and limitations of the all the electronic navigation equipment they have on board is providing them with adequate training.
International regulations and training and familiarization with electronic navigation equipment, however, are not currently at the level needed to improve industry-wide safety and minimize the occurrence of the types of incidents discussed above.  Current training also may not be adequate to meet the required legal standards.  For example, although STCW95 considers ECDIS to be included under the term “charts,” there is no mandatory requirement for navigating officers to undertake specific ECDIS training.
Where electronic navigation systems are in use, owners should consider providing both generic and type specific training to all navigating officers to ensure their understanding of its functionality and limitations.  Proposals have been made to incorporate AIS and ECDIS training and proficiency into STCW.  But IMO Model courses already exist for AIS and ECDIS.  Owners should consider using these courses now to the greatest extent possible without waiting for an STCW mandate.  Owners and operators also should consider updating their fleet instructions to include AIS and ECDIS type specific familiarization in their STCW mandated on board training.
As the industry updates training requirements and standardized courses, full use of ECDIS simulation should be included in maritime training institutions as well as in on board training courseware.
Monitoring Performance
The burden of proving seaworthiness and the exercise of due diligence to make the ship seaworthy is upon the vessel owner or operator.  Thus, in the event of a navigation casualty, it will be incumbent on the vessel’s owner and operator to prove that they exercised due diligence.
The ISM Code places a general requirements on ship owners and managers to ensure all personnel are familiar with the equipment they are expected to use and requires owners and managers to establish procedures to ensure that new personnel and personnel transferred to new assignments related to safety and protection of the environment are given proper familiarization with their duties.  Port State Control inspectors have also been tasked to require masters and deck watch-keeping officers to produce appropriate documentation that generic and type specific ECDIS familiarization has been undertaken.
The ISM Code also requires verification of compliance with safety procedures, including safety of navigation.  The Code’s required audits provide one means of satisfying an owner’s due diligence burden as well as avoiding Port State Control detentions.  Internal auditors should be trained, however, to recognize deficiencies in electronic navigation equipment and assess compliance with navigation procedures.  Several major shipowners also routinely conduct underway navigation proficiency evaluations.  The maritime industry should consider a more widespread adoption of this practice.
 
Alan M. Weigel, associate at Blank Rome LLP, concentrates his practice in the area of commercial and insurance litigation and arbitration, with a particular emphasis on the maritime industry, where he represents clients in a wide variety of both domestic and international maritime, commercial, and insurance matters.  Contact Weigel at tel: 212.885.5350; or Email: AWeigel@BlankRome.com