It would be fair to say that the decision of the High Court in 2019 (upheld by the Court of Appeal in 2020) in the "CMA CGM LIBRA" divided opinion across the shipping industry in relation to the central issues as to whether the vessel should be considered unseaworthy by virtue of a defect in the passage plan and whether owners had exercised due diligence in that regard. The industry now eagerly awaits the decision of the Supreme Court, which we may see in the latter part of 2021.
Whichever side of the "CMA CGM LIBRA" divide you sit on, there are broader and equally significant issues relating to passage planning which presently lie, like the proverbial iceberg, just below the surface. Within the last decade the Marine Accident Investigation Branch (MAIB) has investigated a number of groundings in circumstances where the use of ECDIS was at least a contributory factor. That led the MAIB to team up with its counterparts in Denmark and conduct a joint investigation into these trends. It is understood that their report is expected to be published in late spring / early summer 2021. In the meantime, in November 2020, with exactly the same trends in mind, the Oil Companies International Marine Forum (OCIMF) produced the first edition of its own guide entitled Recommendations on Usage of ECDIS and Preventing Incidents. We reflect on some of the points from that report in the context of our own recent experiences and consider what these trends may mean for the broader industry.
As touched upon in the opening above, the legal context here is the possibility of facing the same arguments as in the "CMA CGM LIBRA" and the string of similar cases which preceded that matter. Whether or not a particular vessel may be said to be unseaworthy is often an emotive subject, perhaps because it conjures up images of something which is literally derelict and on the verge of sinking. One needs to set aside such thoughts, however, because, in English law anyway, the authorities come at the issue in a logical and succinct way, as we discuss below.
It will be recalled that in the "CMA CGM LIBRA" it was held that a vessel could be deemed unseaworthy if the passage plan was defective in such a way as to fall short of the long established test (McFadden -v- Blue Star Line [1905] 1 KB 697) that a prudent owner, had they known about the defect in advance, would have required it to be made good before the vessel sailed. It is equally well established that a vessel can be unseaworthy by virtue of the competency / efficiency of her master and/or crew as much as by the condition of the hull and equipment (The Eurasian Dream [2002] 1 Lloyds Rep 719). Likewise, the authorities are clear that one mistake does not necessarily mean that a particular crew member is lacking in competence but, equally, there is no authority to suggest that the officer in question must have committed a series of similar acts before their competence is deemed to have dropped to a level which justifies a finding of unseaworthiness. In any given case, it will be a question of determining whether the facts lead to the conclusion that the individual concerned suffered from either 'a disabling want of skill' or a 'disabling lack of knowledge'.
In the case of the "EURASIAN DREAM", it was noted that a finding of unseaworthiness due to an officer's competence / efficiency may derive from:
- An inherent lack of ability, or
- A lack of adequate training or instruction, or
- A lack of knowledge of a particular ship type and / or its system, or
- A disinclination to perform the job properly, or
- A physical or mental disability or incapacity (eg drunkenness, illness)
In summary, therefore, one could face a scenario where the allegations are that the vessel is unseaworthy because of defects with the passage plan itself and/or because the relevant officers exhibit one or more of the above characteristics, as highlighted in the "EURASIAN DREAM".
Given the potential significance of passage planning in a legal context, as underlined in the CMA CGM Libra, the recent OCIMF Guide on ECDIS Usage is a document of real importance in terms of defining industry standards. The guide is, as one would expect, lengthy and detailed and so, in this article we highlight just a couple of key features which reflect trends we have identified in our own casualty investigations.
It is worth noting that although the "CMA CGM LIBRA" case only came before the English Court for the first time in 2019, the incident which is the subject of that litigation actually took place almost 10 years ago, in May 2011, before the industry moved fully over to ECDIS. The technology has evolved at a steady pace over the last 10 years, which may go some way to explaining the trends currently being looked at by the MAIB. It is also worth noting that the "CMA CGM LIBRA" centred around the specific issue as to whether a 'no go' area should have been marked on the chart. Of course, 'no go' areas remain very much a part of passage planning but the broader point is that with digital navigation, although the principles of navigation remain the same, the tools have changed and passage planning on ECDIS is a very different process to the purely paper exercise of old and thus gives rise to potential pitfalls for the unwary.
A particular trend which we have identified ourselves in recent times is the use of a standard width of cross-track corridor (XTC). That is to say that the whole route, from berth to berth, is set up on the ECDIS using a XTC of the same width. Given that ECDIS scans the areas falling within the XTC and alerts the officer of the watch to any alarms, cautions or indications that may require attention, the need to select an XTC width appropriate for the section of the voyage is obvious. If the selected XTC is too narrow, the ECDIS will not automatically pick up a relevant danger lying just outside the XTC where the vessel may need to go. If it is too wide, then too many alerts will be generated which will lead to a very time-consuming validation and re-planning process.
As recommended in the OCIMF Guide and the Bridge Procedures Guide, route validation on ECDIS should be done both visually and using the automatic route scan of the area within the XTC. The point here, especially in confined coastal waters, is that if the navigating officer sets the XTC too narrowly at this stage then a thorough visual check of the areas just beyond the limits of the XTC is all they have to rely on to ensure the passage plan is safe. In such a scenario where the XTC might be said to have been too narrow and the visual check has missed a charted obstruction and the vessel grounds on that obstruction, the outcomes could include a finding that the vessel was unseaworthy on the basis that:
- the passage plan itself was defective (ie a "CMA CGM LIBRA" scenario), and/or
- the master and/or navigating officer were lacking in competence on the basis of lack of training or knowledge of the ECDIS system and / or a disinclination to do the job properly
Of course, our scenario above is too brief to draw firm conclusions, every case always has many evidential strands that have to be considered. The point is that those are the possible avenues down which the case would go and certainly any investigation would have to explore those as possible outcomes.
In its recent report, OCIMF summarises the findings of the ECDIS related incidents and SIRE reports which form the research base of its report. It highlights some 22 specific examples of human factors that have contributed to ECDIS related casualties in its investigations, including over-reliance on ECDIS as one of the causative human factors. With that in mind, it is not hard to imagine that over-reliance on the auto scan function within the ECDIS as a potential cause of incomplete route validation. Such over-reliance might be indicative of a 'disinclination to perform the job properly' although previous cases (The Makedonia [1962] 1 Lloyds Rep 316) suggest that one would probably need to demonstrate what would be described as 'a litany of errors' to demonstrate such a characteristic was present in the officers concerned. One can see, however, how the door is opened to such a line of enquiry.
Before moving on to another specific function of ECDIS, the above discussion prompts a pause for observation of a particularly pertinent passage from one of the recent MAIB reports on these grounding cases. It was noted by the MAIB that although the officers on the vessel in question had all attended generic ECDIS training and completed on board ECDIS familiarisation, it was evident to the MAIB investigators that they were unable to safely and confidently operate the ECDIS as they were unaware of the importance of critical safety settings and associated alarms. In picking up on this particular example from a real life and recent case there is no judgment to be made, the point is simply that it is possible for navigating officers to get through generic training and on board familiarisation and yet be found to still not sufficiently understand the safety features of a particular ECDIS. This presents a real challenge to all vessel operators in the context of exercising due diligence to make sure the bridge team have had adequate training and thus have sufficient knowledge of the ECDIS operating features - see the "EURASIAN DREAM" case referred to above.
Another feature of ECDIS use that one encounters all too frequently during casualty investigations is the 'Look Ahead Zone' or 'Anti-Grounding Cone'. OCIMF's recommendation is that the Look Ahead Zone should be part of the passage planning process so as to be of a size suitable for each stage of the voyage and taking into account the vessel's speed, manoeuvrability, proximity to navigational hazards and so on. The reasons for this are obvious in terms of pre-planning suitable settings to ensure potential navigational dangers are highlighted with sufficient time during the monitoring phase of navigation for the bridge team to react accordingly - it is the last chance saloon of the ECDIS safety features. In our recent investigative experience, we have found that these characteristics are often not taken into account. We see passage plans for coastal passages where the passage plan is based on a certain speed, say 6 knots, with an appropriate-sized Look Ahead Zone but then the passage is performed at say a full ahead speed of 12 knots which, of course, reduces the effectiveness of the Look Ahead Zone if it is set at a fixed distance rather than speed. Issues like these may or may not turn out to be causative of an incident, but one can see how they could lead to lines of enquiry similar to the above in relation to the planning and execution of a voyage, especially in confined coastal waters.
Stepping away from the detailed operational aspects of ECDIS, it is also worth noting that the recent OCIMF report recommends that ECDIS navigational procedures should be 'effectively embedded into the Company's SMS and adopted by the Masters and navigating officers'. The report itself also highlights specific points which OCIMF consider warrant specific provision within an SMS. It would be fair to say that the OCIMF report is more specific in this respect than the corresponding section of the Bridge Procedures Guide. A concern we have heard expressed many times is that there is a balance to be struck between making the SMS sufficiently detailed to function as intended and, on the other hand, not making it so detailed as to become unwieldy. Different individuals and organisations may have their own views of the details pertaining to this point but OCIMF's status in the industry no doubt speaks for itself in terms of the weight which their recommendation might carry.
To sum up, as things presently stand, the position in English law is that a vessel can be unseaworthy by virtue of a defect in the passage plan which is causative of an incident. Whether that remains the position after the Supreme Court's expected decision in the "CMA CGM LIBRA" remains to be seen. However, whatever happens on that particular point, the possibility of a similar outcome based on the human performance angle, see the "EURASIAN DREAM" above, will remain very much in play. With that in mind, given the findings published already by OCIMF and those expected from the MAIB shortly, it is anticipated that we shall see further developments both on the operational and legal fronts. Certainly, there are potential pitfalls out there for the unwary - as the cartographers of old would have said: "Hic sunt dracones" - "Here be Dragons".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
