MR JULY2007 #4 (25-32).qxd
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Shipboard Electronics and the Law
Electronic equipment aboard ship is
used for four basic functions; communications, navigation, collision avoidance,
and casualty analysis. For decades the
ship's radio was virtually the only piece
of electronic equipment aboard ship. It
served almost solely as a communications device. It was a significant
advance in its time, for the first time
uniting ship to shore (and occasionally
to other ships) to a degree not previously thought possible. Yet without additional equipment it could not assist with
any of the other functions noted above
(navigation, collision avoidance and
casualty analysis), except to the degree a
party on the other end of the communication provided useful information. For
many years that information consisted
almost entirely of only weather reports
and the occasional marine traffic report.
However, it was a simple ship's radio
that gave rise to one of the leading cases
in the field of maritime law - The T.J.
HOOPER, 60 F.2d 737 (2d Cir. 1932),
well known to both maritime and nonmaritime lawyers alike. The T.J.
HOOPER involved a tug that set sail in
1928, eventually pulling its coal barge
tow into predicted heavy weather that
ultimately caused the loss of the coal
barge. The incident gave rise to a suit in
negligence against the T.J. HOOPER
and her owners. Had the T.J. HOOPER
known of the predicted weather it might
have sought shelter, but it was ignorant
of the predicted weather because it
lacked a radio to receive weather
reports. There was no established rule
or regulation at the time mandating
radios aboard vessels such as the T. J.
HOOPER. In fact, it could be said that
it was not the norm at that time for vessels such as the T. J. HOOPER to have
radios aboard. Judge Learned Hand
nonetheless found the owners liable,
and in oft-quoted language articulated
the following principle:
Courts must in the end say what is
required; there are precautions so
imperative that even their universal disregard will not excuse their omission.
The role of courts in establishing standards of duty in the field of negligence
law has become a familiar and oftentimes highly disputed aspect of
American jurisprudence during much of
the ensuing period. In rapidly developing areas of technology, such as marine
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electronics, the issue is far from academic. Unlike circumstances where
improved technology becomes mandatory over a stated period pursuant to
international convention, IMO regulations or the like, or pursuant to the
domestic legislation of a major trading
nation such that it cannot be ignored, the
incremental entry of new technology
into the world's commercial fleet lays a
heavy penalty on those falling behind
the curve.
While the last few decades have produced a number of navigational and
anti-collision electronic improvements,
a Court in the United States said as
recently as last year regarding a collision in 2002 in the English Channel:
At first the Court was surprised that
none of the ships contacted one another
via VHF radio to enquire which one was
to take evasive action, but the testimony
indicated that the use of the VHF radio
is discouraged here, it being too difficult
to identify which vessel is which
because of there being so many ships
present in the TSS.
Similarly, nearly 35 years ago, in the
wake of the enactment in the United
States of the Bridge-To-Bridge Radio
Telephone Act, 33 U.S.C. §§ 12011208, the author published an article for
the Italian Maritime Law Journal, Il
Diritto Marittimo, stating:
Perhaps, however, the act should have
required, and should be amended in the
future to require, the use of a recorder in
conjunction with the radiotelephone to
assist in determining after the fact, what
went wrong, as is now done in the case
of commercial aircraft.
There has been a similar time lag in
the development of Voyage Data
Recorders (VDRs). VDRs have only
recently become shipboard equipment
pursuant to IMO regulation, with the
first phase being implemented regarding
passenger vessels as from July 2002.
The advent of VDRs is one more step in
the journey toward more precise casualty assessment after the fact, even in the
absence of direct bridge-to-bridge communication.
Several points of potential legal consequence arise from the foregoing:
1. It is above all necessary that mariners
be completely familiar with the full
capabilities of all the electronic equip-
ment they do have on board. Placing
more and more sophisticated equipment
on board that mariners are either unable
or unwilling to use only compounds the
likelihood that their vessels will be held
liable in the event of a casualty based on
a failure to use all the resources and
equipment available to them.
2. Regarding the use of ARPA, for
example, courts have yet to resolve
which of the various features available
on modern ARPA equipment will be
considered to be a required resource for
a mariner. While it is now amusing to
recount, when ARPA first came into use,
at least one minor collision occurred
when the ship's watch officer, annoyed
at the alarm that went off with the CPA
range set at five miles, reset it to three
miles and then to one mile, erroneously
assuming, apparently, that by resetting
the range on the alarm the collision
itself would somehow be avoided.
Knowledge of how to use ARPA's basic
features will now be assumed. It
remains to be seen which of the additional ARPA features courts will also
mandate as being essential in order to
avoid a finding of fault following a
casualty, and which of the available features can still be regarded as optional.
3. Another aspect of collision avoidance, as well as post-casualty assessment, turns on the development of the
Automatic Identification System (AIS).
As indicated in the legal decision quoted above, the primary restriction on
bridge-to-bridge communications during developing collision situations in
crowded waterways has been the inability to properly identify the party on the
receiving end of the communication.
For some years the British Chamber of
Shipping recommended against bridgeto-bridge communications for exactly
that reason. Now, however, with the
development of AIS, those concerns no
longer apply. Not only is it possible to
quickly and accurately identify virtually
any major commercial vessel posing a
threat to the mariner's own vessel, the
other vessel's course and speed can be
automatically and immediately available on one's own ship's ARPA, in
exactly the magnitude inputted by the
other vessel rather than as calculated by
own-ship's ARPA.
John Koster, Of Counsel at Blank Rome LLP, concentrates his practice in the area of litigation, with
particular emphasis on the maritime industry. He
can be reached at 212.885.5296 or
JKoster@BlankRome.com
4. Finally, the number of resources
available for post-casualty analysis will
permit a better determination of whether
the mariners involved in the decisionmaking process on both vessels used all
the resources available to them. The
results will become more and more certain and less and less subject to speculation. The downloading and preservation
of printouts from a vessel's GPS,
ECDIS, ARPA and/or VDR will enable
investigators and civil authorities to
reconstruct the event to a high degree of
accuracy, not only regarding when and
where maneuvers were undertaken, but,
with a minimum of inferences, it may
also provide the reasons those maneuvers were undertaken at the time they
were undertaken.
New and increasingly sophisticated
shipboard electronics should make for
safer navigation. However, navigation
will remain on a course toward greater
safety only to the extent mariners utilize
shipboard electronic capabilities to the
fullest, know how to correctly energize
available back-up systems if needed,
and, perhaps, retain skills achieved in
the use of more "primitive" methods of
navigation and collision avoidance in
the event of even back-up failures.
There is always a danger when courts
and the law fall behind technological
advances in any given field. But the
greater danger to shipowners' pocketbooks rests in those areas where the
industry lags behind in either the acquisition or the skilled usage of new equipment, and courts (á la the T.J. HOOPER) leap ahead of the industry.
Maritime Reporter & Engineering News