The collision avoidance regulations as a regulator of international navigation rights: Underlying principles and their adequacy for the Twenty-first Century

Journal of Navigation

Volumn 49, Issue 3, 1996, Pages 377-389

  Plant, Glen ^a  

^a NONE

Author keywords

Collision avoidance; Freedom of navigation; Law of the sea

Indexed keywords

EID: 0006122011     PISSN: 03734633     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0373463300013606     Document Type: Article

References (110)

1. C. Warbrick, (1973). 'The Regulation of Navigation III' New Directions in the Law of the Sea, 137.
2. What is good seamanship in a given instance is a question of fact to be decided upon a consideration of all the relevant circumstances: The Heranger (1939) A. C. 94, 101; it is illustrated by numerous judicial decisions.
3. As to this view see The Roseline (1981), 2 Lloyd's Rep. 410, 411.
4. That the 1972 COLREGS do so to a high degree is illustrated by mariners' responses to questionnaires sent out by, inter alios, the IMCO Secretariat, US Coast Guard and Royal Institute of Navigation before the IMCO Conference on Revision of the Inteernational Regulations for Preventing Collisions at Sea ('the 1972 diplomatic conference'), which adopted the 1972 COLREGS.
5. By Article 1 of the Convention, Parties 'undertake to give effect to' the COLREGS, but the COLREGS themselves are addressed to vessels, and a flag State's obligation should be read as at most one of due diligence to ensure the existence of the legislative, administrative and judicial conditions requiring and enabling their vessels to comply with them. See also the new Code annexed to the Convention on Standards of Training Certification and Watchkeeping ('STCW Code'). Part A, Chapter 8, paras. 9 and 12, concerning the master's responsibility to ensure that watchkeeping is adequate and the officer of the watch's responsibility to avoid collisions.
6. Cf. Article 11, 1958 Convention on the High Seas, 450 UNIS 11, Article 97, 1982 Law of the Sea Convention ('LOSC'), 21 ILM (1982), 1245.
7. See Articles 21, 27 and 52 (1)LOSC. The measures taken must not have the practical effect of hampering innocent passage. In those straits used for international navigation of such importance that the enhanced right of transit passage is enjoyed by foreign ships, however, the obligation under Article 39(2) (a) LOSC upon ships to obey the international COLREGS is not matched with corresponding provisions permitting a bordering State to prescribe national laws and regulations (except, under Article 42(1) (a), in respect of IMO-adopted traffic separation schemes) nor with specific enforcement provisions. This is equally true of ships in archipelagic sea lanes passage, where a roughly similar regime applies: cf. Article 54.
8. Present English and American law raises a rebuttable presumption of negligence by the person responsible for the breach: The Pennsylvania (1875) 19 Wall 125.
9. Including, where relevant, Protection and Indemnity (P & I) Clubs. Of course, warships and other government-owned vessels are not usually insured.
10. See The Sylvester Hale, 6 Bened. 523.
11. IMCO doc. NAV XXIV/12, 6 March 1980, Annex 4.
12. For a description of the relevant English law, see the author's contribution to Marsden's, Collisions at Sea, London, 12th ed., 1997 forthcoming, chapter 6 ('Marsden '). Concerning American law see Farwell's Rules of the Nautical Road, Annapolis, Maryland, 6th ed., 1982 ('Farwell').
13. For a description of the relevant English law, see the author's contribution to Marsden's, Collisions at Sea, London, 12th ed., 1997 forthcoming, chapter 6 ('Marsden '). Concerning American law see Farwell's Rules of the Nautical Road, Annapolis, Maryland, 6th ed., 1982 ('Farwell').
14. These provided : 'Each vessel shall put her helm to port so as always to pass on the larboard side of the other' and 'A steam vessel passing another in a narrow channel must always leave the vessel she is passing on the larboard side'. They were adopted by the Admiralty Court as guidance in lieu of seeking specific advice from Trinity House and subsequently incorporated into statute law, by the Steam Navigation Act 1846, 9 and 10 Vict. c. 1oo.
15. Adopted by the Merchant Shipping Amendment Act, 25 and 26 Vict. c. 63, and later amended in 1880 and 1884.
16. The USA also issued similar rules in 1864.
17. By the following year these numbered over thirty and included Belgium, Denmark, Germany, Norway and the USA: L. Cuyvers, The Strait of Dover, Dordrecht, 1986, p. 64. This was judicially recognized in The Scotia 14 Wall. 170 (1872), USSC.
18. By the following year these numbered over thirty and included Belgium, Denmark, Germany, Norway and the USA: L. Cuyvers, The Strait of Dover, Dordrecht, 1986, p. 64. This was judicially recognized in The Scotia 14 Wall. 170 (1872), USSC.
19. In the 1972 COLRHGS these exceptions are the meeting, and in extremis situation regulations (Rules 14 and 17(4) (ii) and (b)), as well, arguably, as Rule 19(e), governing certain encounters in or near areas of restricted visibility. As to the possible effect of Rule 8(f) too, see text infra.
20. The 1929 amendments never received sufficient ratifications to come into force, but the 1948 COLREGS came into force in 1954, to be replaced by the 1960 COLREGS in 1965.
21. The Alexandra Doria-Stockholm collision of 1955. which involved major loss of life, was partly the result of inadequate use of radar.
22. 21 Being based on a 'right of way', ther are predicated upon a single stand-on vessel and a single give-way vessel and are difficult to reconcile with a vessel being both give-way vessel vis-á-vis a second vessel and stand-on vessel vis-á-vis a third. See also L. Oudet, In the Wake of the Torrey Cnyon: Reflections on a Disaster, London, 1972, pp. 61-64.
23. The word 'shall', e.g., appeared half as frequently in the 1960 as it does in the 1972 COLREGS. This probably largely arose from the traditional unwillingness to fetter the master's freeoom of choice.
24. E.g., the lack of guidance on the proper use of ship's radar in the COLREGS before SOLAS 1960 came into force, in 1965, and the excessive reliance placed on radar by ships wishing to move at speed in restricted visibility, gave rise to the misleading judicial concept of the 'radar-induced (or assisted) collision' in the early post-War years. The perceived danger of being held negligent because of improper use of radar acted as a disincentive to using or fitting it; one American company even removed radar from its ships during the 1950s.
25. Provisions deserving emphasis are placed early in the order; provisions on radar, which are seven times as frequent as they were in the Annex to the 1960 COLREGS, are incorporated into the main text; and technical matters, not of immediate concern to the mariner, are relegated to annexes: see General Council for British Shipping, The International Regulations for Preventing Collisions at Sea, London, 1972 ('GCBS Pamphlet'), at 3; Warbrick, supra n. 1, at 139; and S. Hartley, 'The Cellision Regulations 1972', LIMCLQ (1977), 178. Most of the regulations are based on draft regulations prepared, by the IMCO Secretariat (in IMCO doc. CR/CONF/3, 28 July 1972), on the basis of the results of its questionnaire to mariners (as to which see supra n. 4), as well as preparatory negotiations and written proposals from States See also Warbrick, ibid.; Hartley, ibid.; GCBS Pamphlet, p. 4; A. Church. 'The New Rules of the Road', 853 U.S. Naval Aotfmw Institute Proceedings (1974), 43.
26. Provisions deserving emphasis are placed early in the order; provisions on radar, which are seven times as frequent as they were in the Annex to the 1960 COLREGS, are incorporated into the main text; and technical matters, not of immediate concern to the mariner, are relegated to annexes: see General Council for British Shipping, The International Regulations for Preventing Collisions at Sea, London, 1972 ('GCBS Pamphlet'), at 3; Warbrick, supra n. 1, at 139; and S. Hartley, 'The Cellision Regulations 1972', LIMCLQ (1977), 178. Most of the regulations are based on draft regulations prepared, by the IMCO Secretariat (in IMCO doc. CR/CONF/3, 28 July 1972), on the basis of the results of its questionnaire to mariners (as to which see supra n. 4), as well as preparatory negotiations and written proposals from States See also Warbrick, ibid.; Hartley, ibid.; GCBS Pamphlet, p. 4; A. Church. 'The New Rules of the Road', 853 U.S. Naval Aotfmw Institute Proceedings (1974), 43.
27. Provisions deserving emphasis are placed early in the order; provisions on radar, which are seven times as frequent as they were in the Annex to the 1960 COLREGS, are incorporated into the main text; and technical matters, not of immediate concern to the mariner, are relegated to annexes: see General Council for British Shipping, The International Regulations for Preventing Collisions at Sea, London, 1972 ('GCBS Pamphlet'), at 3; Warbrick, supra n. 1, at 139; and S. Hartley, 'The Cellision Regulations 1972', LIMCLQ (1977), 178. Most of the regulations are based on draft regulations prepared, by the IMCO Secretariat (in IMCO doc. CR/CONF/3, 28 July 1972), on the basis of the results of its questionnaire to mariners (as to which see supra n. 4), as well as preparatory negotiations and written proposals from States See also Warbrick, ibid.; Hartley, ibid.; GCBS Pamphlet, p. 4; A. Church. 'The New Rules of the Road', 853 U.S. Naval Aotfmw Institute Proceedings (1974), 43.
28. Provisions deserving emphasis are placed early in the order; provisions on radar, which are seven times as frequent as they were in the Annex to the 1960 COLREGS, are incorporated into the main text; and technical matters, not of immediate concern to the mariner, are relegated to annexes: see General Council for British Shipping, The International Regulations for Preventing Collisions at Sea, London, 1972 ('GCBS Pamphlet'), at 3; Warbrick, supra n. 1, at 139; and S. Hartley, 'The Cellision Regulations 1972', LIMCLQ (1977), 178. Most of the regulations are based on draft regulations prepared, by the IMCO Secretariat (in IMCO doc. CR/CONF/3, 28 July 1972), on the basis of the results of its questionnaire to mariners (as to which see supra n. 4), as well as preparatory negotiations and written proposals from States See also Warbrick, ibid.; Hartley, ibid.; GCBS Pamphlet, p. 4; A. Church. 'The New Rules of the Road', 853 U.S. Naval Aotfmw Institute Proceedings (1974), 43.
29. Provisions deserving emphasis are placed early in the order; provisions on radar, which are seven times as frequent as they were in the Annex to the 1960 COLREGS, are incorporated into the main text; and technical matters, not of immediate concern to the mariner, are relegated to annexes: see General Council for British Shipping, The International Regulations for Preventing Collisions at Sea, London, 1972 ('GCBS Pamphlet'), at 3; Warbrick, supra n. 1, at 139; and S. Hartley, 'The Cellision Regulations 1972', LIMCLQ (1977), 178. Most of the regulations are based on draft regulations prepared, by the IMCO Secretariat (in IMCO doc. CR/CONF/3, 28 July 1972), on the basis of the results of its questionnaire to mariners (as to which see supra n. 4), as well as preparatory negotiations and written proposals from States See also Warbrick, ibid.; Hartley, ibid.; GCBS Pamphlet, p. 4; A. Church. 'The New Rules of the Road', 853 U.S. Naval Aotfmw Institute Proceedings (1974), 43.
30. Provisions deserving emphasis are placed early in the order; provisions on radar, which are seven times as frequent as they were in the Annex to the 1960 COLREGS, are incorporated into the main text; and technical matters, not of immediate concern to the mariner, are relegated to annexes: see General Council for British Shipping, The International Regulations for Preventing Collisions at Sea, London, 1972 ('GCBS Pamphlet'), at 3; Warbrick, supra n. 1, at 139; and S. Hartley, 'The Cellision Regulations 1972', LIMCLQ (1977), 178. Most of the regulations are based on draft regulations prepared, by the IMCO Secretariat (in IMCO doc. CR/CONF/3, 28 July 1972), on the basis of the results of its questionnaire to mariners (as to which see supra n. 4), as well as preparatory negotiations and written proposals from States See also Warbrick, ibid.; Hartley, ibid.; GCBS Pamphlet, p. 4; A. Church. 'The New Rules of the Road', 853 U.S. Naval Aotfmw Institute Proceedings (1974), 43.
31. Article VI 1972 COLREGS Convention.
32. In 1981, 1987, 1989 and 1993: IMO Res. A. 464 (XII), 19 November 1981, A. 626 (15), 19 November 1987, A. 678 (16), 19 October 1989, and A. 736 (18), 4 November 1993.
33. See IMCO doc. NAV XXl/9, to August 1978, para. 21.
34. 29 See text accompanying nn. 51-53 infra.
35. As of 1 November 1994.
36. Articles 39(2) (a) and 94 (3) (c), when read with 94(4) (c)and (5), LOSC. The former expressly provides that these include the 'International Regulations for Preventing Collisions at Sea' and are to be obeyed.
37. The LOSC enterred into force on 16 November 1994 and is expected to have about 100 Parties, including most important maritime states (though not the USA) by the end of June 1996. In addition, much of it is generally regraded as representative of customary international law. The possible meanings of the various obligations to conform to 'generally accepted' standards are not entirely clear, although the author takes the view that a Party to the LOSC can, by virtue of this language, be bound by the provision of another treaty, if they represent generally accepted standards, e.g. by virtue of majority of most singnificant States being parties to the treaty and their widespread enactment in domestic legislation and implementation, notwithstanding that it has not formally become a Party to that treaty: see further Plant, Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Manchester, 1997 forthcoming, Chapter 6, Section 3.1. Even if a narrower view is taken, that the term incoporates by reference only customary international law standards, it is strongly arguable that the 1972 COLREGS Convention represents such customary law, at least insofar as it requires States to give effect to general safety principles binding upon States that are of a fundamentally norm-creating character: cf. The North Sea Continental Shelf Case (Germany v. Denmark and the Netherlands), ICJ Rep. (1969), 3.
38. -4. Indeed, an Indonesian proposal to add 'offshore operation areas' to the list was rejected: CR/CONF/C.1/SR.2, 10 May 1973, p. 7.
39. E.g. the USA: see COLREGS Boundary Lines, 46 C.F.R. 7.
40. Cf Article 21(1) (a) LOSC with Article 39(2) (a), 42 (1) (a) and 54 LOSC, and see supra n. 7.
41. Article 3 LOSC.
42. Article 24 (1).
43. Indeed, Rule 10 originated as a special extension of Rule 9 to open waters which began to take on the characteristics of narrow channels by virtue of a high incidence of converging traffic. In the Turkish Straits, however, the IMO recently approved a local rule permitting Rule 9 to prevail over Rule 10 in certain circumstances: Rule 1.2 of the Rules and Recommendations on Navigation through the Strait of Istanbul, Strait of Canakkale and the Marmara Sea, IMO doc. MSC 63/23, para. 7. 22.
44. See Plant, 'Traffic Separation Schemes and the New Law of the Sea', 9 Marine Policy (1985), 71.
45. Rule 9(e). See also Rule 34 (c).
46. The overtaking vessel is, indeed, Entitled to this information: The M.P. Howlett (CCA Pa 1932) 58 F (2d) 923.
47. Germany is particularly concerned about 'tide-bound' deep draught vessels in the German Bight. See, e.g., IMO docs. : MSC 51/21, 7 June 1985, para. 5.11; 52/28, 26 February 1986, paras. 8.9 and 8.10; MSC 53/24, 29 September 1986, para. 3.16; MSC 54/23, 19 May 1987, para. 6.2.11; NAV 30/4/3, 1984; NAV 31/12, 24 July 1985, paras. 4.3.5 and 4.3.9; and NAV 34/14, 16 February 1988. The Netherlands pointed out, in 1986, that there are at least five other areas off N.W. Europe where vessels constrained by their draught cannot give way as required by the COLREGS, because they cannot leave a deep water route or reduce their speed: see NAV 33/4/19, 11 November 1986.
48. Rule 3(h).
49. The 1972 diplomatic conference had intended to restrict the regulation to deep-draught vessels (see: IMCO docs. CR/CONF/3, pp. 126, 128, and /Add. 2, 2 October 1972; CR/CONF/C.1/WP. 2, 5 October 1972, pp. 2-5, /SR.11, pp. 4-7, and /SR. 12, pp. 3-6), but on its face it extends to any vessel experiencing manoeuvring difficulties in waters which for her are shallow on either side (or beneath) her: see now IMO Clarifications; also CR/CONF/SR.6, p.8; CR/CONF/C.1/SR.8, p. 5; and CR/CONF/C.2/SR. 11, p. 19.
50. The 'quasi-privilege' should not be created artificially, e.g. by tankers increasing speed so as to alter their trim and so limit their under keel clearance: see, e.g., Rule 6 (a) (vi).
51. See IMCO doc. CR/CONF/C.2/WP. 1, p. 5.
52. Under Rules 9(b), (c) and semble, (d) and 10(i).
53. Under Rule 10(j). The term 'safe' is used here (and in Rule 18(d)) to emphasise the fact that the 'quasi-privilege' of the second vessel is not absolute; where, e.g., she has room to manoeuvre so as to avoid a fishing vessel or the like, she should do so: IMCO doc. CR/CONF/SR.7, 4 May 1973, pp. 8 and 10-11. During the negotiations leading to the adoption of new Rule 8(f), both Japan and the USA insisted that the burden should not be placed entirely on one vessel: IMO docs. NAV 19/4/5, 30 April 1984, and 10/4/5, 16 November 1984.
54. IMO doc. NAV 32/13, 27 March 1986, para. 4.3.2.5. The main reason cited (in NAV 30/WP. 3/Add. 1, 19 December 1984, para. 2.5..4. was that the change would be tantamount to a new regulation rather than a clarification, to which the amendment procedure should be properly restricted.
55. NAV 32/13, ibid., para. 4.3.6; NAV 34/14, para. 4. (i) The FRG has adopted a series of local rules for 'tide-bound' deep draught vessels in port approaches in the inner German Bight. By its Sixth Ordinance to Amend the Traffic Regulations for Navigable Waters (Bundesgesetzblatt ('BGBr') I. S. 38. 9 January 1985; in English translation in LOS Bulltetin, No. 7, April 1986, at 9-22), it enacted a local rule (S. 24(a)) to apply in newly extended territorial waters there, where several IMO-adopted routeing measures had already been prescribed. This rule, as set out in FRG Notice to Marinen NFS-HFFT 4/1985 (appearing in English translation in IMO doc. SN/Circ. 124, 6 March 1985). read as follows: In derogation of the provisions of Rule 18(d) of the Collision Regulations any vessel, other than a vessel not under command, navigating in the area of extension of the territorial sea in the German Bight shall, irrespective of the circumstances of the case, avoid impeding the safe passage of a vessel constrained by her draught, and shall take avoiding action in ample time. This provision shall apply, in particular, to any vessel approaching a vessel constrained by her draught so as to involve risk of collision... This means that no vessel constrained by her draught will be deemed a give-way vessel. This local rule was controversial and regarded by the majority of the IMO's NAV Subcommittee as a substantial departure from the 1972 COLREGS, and so contrary to Rule 1(b): NAV 31/12, para. 4.3.8. Two objections to it could then be made: (i) it appeared to remove the 'privilege' (vis-à-vis vessels constrained by their draught) of vessels restricted in their ability to manoeuvre; and (ii) it interpreted the duty 'not to impede' as reversing the normal steering and sailing rules applicable in situations where there was risk of Collision. The then-existent IMO Clarifications (since largely superseded by Rule 8 (f), as to which see text infra), on the contrary, made it clear that the duty 'not to impede', in the 1972 COLREGS, applied only at long renge and that, if a risk of collision nevertheless arose, the nirmal steering and sailing rules should apply. For an assertion, however, that no State opposed the operation of the local rule in practice'see R. Platzöder, 'The Regime of the Territorial Sea of the Federal Republic of Germany and the German Democratic Republic', in van Dyke et al. (eds.), International Navigation: Rocks and Shoals Ahead:, Honolulu, 1988, 106. Germny, made it clear that it was prepared to modify the local rule, if an international solution could be found instead, and replaced it, by a further amendment to the Traffic Regulations, dated 19 April 1991. Under this, (deep draught) vessels that are constrained by their draught in the relevant waters are now classified, where they are obliged to sail 'tide-bound in the waterways ahead of them', as'vessels restricted in their ability to manoeuvre' (and so 'Priviledge' under ahead of them', as 'vessels restricted in their ability to manoeuvre' (and so 'privileged' under 1972 COLREGS Rule 18 (a)): NAV 37/25, 4 October 1991, para. 4.17. As this accords with IMO's recognition of the problem, described supra, this would appear to conform to Rule 1(b). For an English translation of the 1991 version of the Regulations see SN/Circ. 149, 11 November 1991. (ii) A second possible example of such a local rule will be the designation by the USA of areas where oil tankers over 1600 g.r.t. (40 000 g.r.t. in the Puget Sound area) may navigate only if two licensed offiers are on the bridge : Oil Pollution Act 1990, Pub. Law 101-380, 18 August 1990, 104 Stat. 484 (1990), 33 U.S.C. Ss. 2701-61 ('OPA 90'), Ss. 4116 (b) and 3005.
56. NAV 32/13, ibid., para. 4.3.6; NAV 34/14, para. 4. (i) The FRG has adopted a series of local rules for 'tide-bound' deep draught vessels in port approaches in the inner German Bight. By its Sixth Ordinance to Amend the Traffic Regulations for Navigable Waters (Bundesgesetzblatt ('BGBr') I. S. 38. 9 January 1985; in English translation in LOS Bulltetin, No. 7, April 1986, at 9-22), it enacted a local rule (S. 24(a)) to apply in newly extended territorial waters there, where several IMO-adopted routeing measures had already been prescribed. This rule, as set out in FRG Notice to Marinen NFS-HFFT 4/1985 (appearing in English translation in IMO doc. SN/Circ. 124, 6 March 1985). read as follows: In derogation of the provisions of Rule 18(d) of the Collision Regulations any vessel, other than a vessel not under command, navigating in the area of extension of the territorial sea in the German Bight shall, irrespective of the circumstances of the case, avoid impeding the safe passage of a vessel constrained by her draught, and shall take avoiding action in ample time. This provision shall apply, in particular, to any vessel approaching a vessel constrained by her draught so as to involve risk of collision... This means that no vessel constrained by her draught will be deemed a give-way vessel. This local rule was controversial and regarded by the majority of the IMO's NAV Subcommittee as a substantial departure from the 1972 COLREGS, and so contrary to Rule 1(b): NAV 31/12, para. 4.3.8. Two objections to it could then be made: (i) it appeared to remove the 'privilege' (vis-à-vis vessels constrained by their draught) of vessels restricted in their ability to manoeuvre; and (ii) it interpreted the duty 'not to impede' as reversing the normal steering and sailing rules applicable in situations where there was risk of Collision. The then-existent IMO Clarifications (since largely superseded by Rule 8 (f), as to which see text infra), on the contrary, made it clear that the duty 'not to impede', in the 1972 COLREGS, applied only at long renge and that, if a risk of collision nevertheless arose, the nirmal steering and sailing rules should apply. For an assertion, however, that no State opposed the operation of the local rule in practice'see R. Platzöder, 'The Regime of the Territorial Sea of the Federal Republic of Germany and the German Democratic Republic', in van Dyke et al. (eds.), International Navigation: Rocks and Shoals Ahead:, Honolulu, 1988, 106. Germny, made it clear that it was prepared to modify the local rule, if an international solution could be found instead, and replaced it, by a further amendment to the Traffic Regulations, dated 19 April 1991. Under this, (deep draught) vessels that are constrained by their draught in the relevant waters are now classified, where they are obliged to sail 'tide-bound in the waterways ahead of them', as'vessels restricted in their ability to manoeuvre' (and so 'Priviledge' under ahead of them', as 'vessels restricted in their ability to manoeuvre' (and so 'privileged' under 1972 COLREGS Rule 18 (a)): NAV 37/25, 4 October 1991, para. 4.17. As this accords with IMO's recognition of the problem, described supra, this would appear to conform to Rule 1(b). For an English translation of the 1991 version of the Regulations see SN/Circ. 149, 11 November 1991. (ii) A second possible example of such a local rule will be the designation by the USA of areas where oil tankers over 1600 g.r.t. (40 000 g.r.t. in the Puget Sound area) may navigate only if two licensed offiers are on the bridge : Oil Pollution Act 1990, Pub. Law 101-380, 18 August 1990, 104 Stat. 484 (1990), 33 U.S.C. Ss. 2701-61 ('OPA 90'), Ss. 4116 (b) and 3005.
57. Both the 1985 and 1991 versions of the German Traffic Regulations were thus applied to waters extending beyond twelve nautical miles from the coastal baseline, in a 'box' extending in places up to sixteen nautical miles offshore. This claim was contrary to international law. Germany has now, however, reduced its territorial tea claim to the generally accepted tweleve nautical miles, since the VTS system in the German Bight is now regarded as adequate to ensure safety in those parts of the box extending beyond this.
58. 55 The other, 'quasi-privileged', vessel should, display Rule 28 ('vessel constrained by her draught') lights or shapes, where appropriate, have her engines ready for immediate manoeuver and have special regard to her own manoeuvrability and draught (i.e, to Rules 6(a) (iii) and (vi)) in determining a safe speed: IMO Clarifications, which in this respect do not appear to be superseded by Rule 8 (f).
59. 57 IMO Doc. NAV 34/14, para. 4.7. calls for mariners to be afforded further experience of it before any new amendment is contemplated.
60. Germany argues that, without this, 'vessels on a collision course [might] delay unduly in taking avoiding action and thus increase the possibility that their manoeuvring actions may nullify each other': MSC 53/24, para. 3.16. But this is merely the normal problem surrounding Rule 17. See also C. Young, 'The Evolution of a Proposed New Navigation Rule: the "Duty Not to Impede"', 17 JMLC (1986), 119.
61. It would be difficult to conceive of rules which could apply on three planes.
62. The reasoning for the latter appears to be bated on a combination of the frequent coincidence of shortness with limited engine-capacity to provide power for lights and locomotion and the desire to avoid placing excessive financial burdens on small boat owners : see. e.g.. IMCO doc. CR/CONF/C.2/SR.7, p. 13.
63. It will be recalled that a (failed) attempt was made before 1972 to draft a single set of steering and sailing rules for all visibilities.
64. Captain Syms, letter in Seaways. May 1980, at 2.2.
65. Ibid. This fortifies the principle, discussed above, of uniformity of application.
66. MSC 62/25, 17 June 1993, para. 23-27.
67. Semble per Westbury C.J. in Inman v. Reck, The City of Antwerp and the Friedrich (1868) L.R. 2. P.C. 25, 30, 34: The Concordia and the Esther (1866) L.R. I A. & E. 93.
68. The Sparto [1956] 1 Lloyd's Rep. 400.
69. E.g. in helping to determine when the 1972 COLREGS begin to 'bite' and. later, when a close-quarters or in extremis situation has arisen. In The Nowy Sacz, (1976) 2 Lloyd's Rep. 695; (1977) 2 Lloyd's Rep. 95 (C.A.), the two vessels in collision had converged so slowly and over such a long distance that it was difficult to determine when the overtaking vessel was ' coming up with ' the vessel to be overtaken for the purposes of Rule 13.
70. What constitutes a vessel's ' safe speed ' in any given circumstance depends upon a host of factors concerning her capabilities, visibility, wind, tide, etc., which must in the first instance be judged by the person in command of her.
71. Over 40% of collisions in the Dover Strait between 1950 and 1971 were so caused: 1. Brown and ]. Wbeatley, ' Circumstances of Collisions and Strandings in the Dover Strait Area 1968-1971', National Physical Laboratories (NPL) Rep. MAR Sci. R101, October 1972.
72. These latter restrictions are limited to particular Rules. Under the 1960 COLREGS they were of more general application. The changes were probably made, because modern fast vessels using radar are now more prevalent and can safely carry out manoeuvres unsafe if carried out by a slower one without radar.
73. E.g., Rule 12 is designed to follow closely the basic principles contained in the International Yacht Racing Rules; and recreational diving is catered for by rules on vessels restricted in their ability to manoeuvre and by special lights and shapes.
74. These have some ' privileges ' under Rule 18, and are generally permitted by Rule 10 to fish anywhere in a traffic separation scheme. In fairways and the lanes of traffic separation schemes, however, they are under additional duties (Rules 9(c) and 10 (i)), which limit to some degree their right to fish there.
75. See Plant, Security and the International Law of Maritime Navigation, Manchester forthcoming Chapter 5.
76. Vessels restricted in their ability to manoeuvre are given their 'privileges' precisely because they engage in activities additional to navigation, and because those activities affect their manoeuvrability. These 'privileges' must not be abused, however. An aircraft carrier engaged in launching and landing operations, for example, ' may not be justified in proceeding at high speed in congested waters or when approaching yachts, vessels engaged in fishing or other low speed vessels': A. Cockcroft and J. Lameijer. Guide to the Collision Avoidance Rules, 4th ed., London, 1990, p. 136.
77. Special rules for nuclear-powered vessels proposed at the SOLAS 1960 Conference were not adopted.
78. The dangers posed by collision are particularly great for passengers on large passenger ships and to third parties and the environment following incidental releases of nuclear or other hazardous and noxious substances. Warbrick (supra n. 1, at 140) argues that it may become necessary to give 'privileges' to passenger and high pollution-risk ships. Following the Mont Louis incident of 1984, when a vessel carrying a nuclear cargo sank in waters off Belgium, Belgium and the FRG made proposals, not accepted, for a ' keep away ' automatic sound signal or warning signal for vessels carrying very dangerous cargoes: NAV 31/4, 25 April 1985.
79. Notably special trafic lanes in traffic separation schemes and deep water routes.
80. Padfield, An Agony of Collissions, at 168-69.
81. The St. Cyran and the Henry (1864) 12 W.R. 1014.
82. Even where a vessel is permitted under the 'general prudential' rule to depart from the strict requirements of the COLREGS, uncertainty persists ; Rule 2(b) does not itself provide specific guidance as to what a ship falling within it should do.
83. Plant, Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Chapter 9.
84. See further: Plant, Security and the International Law of Maritime Navigation, Chapter 5.
85. Conventional vessel speeds have grown with improved hull and screw designs and new means of propulsion; light naval vessels and aircraft carriers can operate at 35-45 knots; and even modern container and other merchantships at 25-30 knots. Non-displacement craft operating in the non-displacement mode are capable of speeds of up to 65 knots in the Dover Strait and even more in calmer waters.
86. Captain Syms, paper to Practical Navigation in the Dover Strdit, Dover Branch, Nautical Institute, 18 May 1979, p. 43 also 'High Speed at Sea in the 'Sos', Seaways, November 1980.
87. Captain Syms, paper to Practical Navigation in the Dover Strdit, Dover Branch, Nautical Institute, 18 May 1979, p. 43 also 'High Speed at Sea in the 'Sos', Seaways, November 1980.
88. Of course, there has been some degree of discrimination on the bsis of speed since 4 November 1995. with the entry into force of new Section 13 of Annex 1 to the 1972 COLREGS, and a new International Code of Safety for High-Speed Craft applies to ships built on or after 1 January 1996. under new Chapter X of SOLAS 1974: IMO Rrs. MSC. 36(63), 20 May 1994.
89. See, e.g. IMCO docs. CR/CONF/C.2/SR.4, PP. 11-12, and /SR.9, 25 May 1973, pp. 10-19. Many large vessels try to navigate so as to keep a 'domain' free of other vessels aroond themselves; according to N. Mostert (in Supership, New York. 1975, at 286), large tankers often turn full circle in open waters in order to avoid other ships coming within two to two and one half miles.
90. J. Hardwick, 'Hovercraft and the COLREGS', 15 Journal of the Institute of Navigation (1963), 383, 384.
91. The IMCO Secretariat's draft Rule 9 ('Action at long range') was rejected in the face of opposition from, inter olios the USA and USSR (CR/CONF.3, pp. 59 and 61), on the ground that it was potentially confusing. Cockcroft (in 860 US Naval Institute Proceedings (October 1974), 84) suggests, however, that these ttwo States really had the continued validity of naval shadowing operations in mind: see further Plant, Security and the International Law of Maritime Navigation, Chapter 5.
92. 91 They normally operate with heavy reliance on radar such that they can miantain their speed in all conditions of visibility. They also have: short stopping distances at high speed; limited turning ability, hovercraft tending to sideslip hydrofoils genrally having only small rudders; and high minimum, speeds, control of a moving hovercraft becoming more difficult if it drops below 12 knots, and hydrofoils coming off the foils below 16 knots: G. Draysey, 'High-Speed Vessels and the Collision Regulations', 25 Journal of Navigation (1972), 263, 265. But see IMCO doc. CR/CONF/C.2.SR. 111, pp. 12-14, esp. the UK delegate's comments.
93. The IMCO Secretariat's draft Rule 23 to his effect (CR/CONF/ 3, p. 111) was rejected at the 1972 diplomatic conference, despite overwhelming support for it in the Royal Institute of Navigation's questionnaire exercise and existing UK practice.
94. 93 See, e.g., Warbrick, supra n. 1, at 138-39.
95. Hinsch, 33 Journal of Navigation (1980), 403.
96. 'The Stand-on vessel canot know the state of awareness prevailing in the give-way vessel: the stand-on vessel also may not know the manoeuvring capabilities of the give-way vessel and, consequently, may stand on until a dangerous situation has arisen': GCBS Pamphlet at 27.
97. E.G. Lott's Collision Prevention Rules, taught at US Fleet training posts since 1957; and E. Calvert's and S. Hollingdale's mathematical sets of manoeuvre rules: see 'Manoeuvres to Ensure the Avoidance of Collision', 13 Journal of the Institute of Navigation (1960), 127, and 'The Mathematics of Collision Avoidance in Two Dimensions', 14 ibid, (1961), 243, respectively. See, e.g., Padfield, An Agony of Collisions, at 168-69 and 210-15,
98. E.G. Lott's Collision Prevention Rules, taught at US Fleet training posts since 1957; and E. Calvert's and S. Hollingdale's mathematical sets of manoeuvre rules: see 'Manoeuvres to Ensure the Avoidance of Collision', 13 Journal of the Institute of Navigation (1960), 127, and 'The Mathematics of Collision Avoidance in Two Dimensions', 14 ibid, (1961), 243, respectively. See, e.g., Padfield, An Agony of Collisions, at 168-69 and 210-15,
99. E.G. Lott's Collision Prevention Rules, taught at US Fleet training posts since 1957; and E. Calvert's and S. Hollingdale's mathematical sets of manoeuvre rules: see 'Manoeuvres to Ensure the Avoidance of Collision', 13 Journal of the Institute of Navigation (1960), 127, and 'The Mathematics of Collision Avoidance in Two Dimensions', 14 ibid, (1961), 243, respectively. See, e.g., Padfield, An Agony of Collisions, at 168-69 and 210-15,
100. and Wylie, 'Mathematics and the Collision Regulation (Forum),' 18 Journal of the Institute of Navigation (1965) 104-10;
101. also now Syms, 'Rules for the Twenty-First Century', Seaways, September and October 1994,
102. and D. Thomas, 'Dual Action v. the Rules', ibid., November 1994.
103. Contra Cockcroft, 'COLREGS - the Case Against Major Change', in Seaways, December 1994, at 3-5.
104. Bilateral solutions to this have been sought in Incidents at Sea Agreements between the USSR on the one band and the USA. UK. Netherlands and France on the other : see Plant. Security and the International Law of Maritime Navigation, Chapter 5.
105. As to which see Plant, Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Chapter 12.
106. Deep sea pilotage and tug escort are alternative possibilities.
107. Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, esp. Chapters 9 to 11.
108. IMO Res. MSC. 31(63) and MSC.46(65).
109. Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, in IMO Res. A. 720(17), Annex.
110. It called upon Member States to 'recognise the need for effective protection of the Great Barrier Reef region and inform ships flying their flag that they should act in accordance with Australia's system of pilotage for merchant ship' : IMO Doc. MEPC 45/30, 16 November 1990.