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UK P&I CLUB
ECDIS – Navigational and claims issuesThe mandatory introduction of electronic chart displayand information systems is seen as a major step forward insafe ship operation and protection of the environment
UK P&I CLUBIS MANAGEDBY THOMASMILLER
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IntroductionThis brochure attempts to provide a user friendly guideto the mystery surrounding electronic chart display andinformation systems (ECDIS). It is in three sections.
The first section provides the reader with a generalintroduction to ECDIS and the legislation that governsits operation. The second section focuses on theoperational aspects of ECDIS considering therequirements of generic and type specific training infurther detail.
The final section considers the legal effect of failure tomeet the statutory ECDIS requirements and the effecton claims where levels of operation or knowledge ofECDIS are considered to be a factor or fundamentallink in the chain of causation leading to an incident.
The backgroundWith the amendments to SOLAS Chapter V Regulation19 governing the statutory introduction of ECDIS beingadopted from January 2011, the ‘ticking time bomb’associated with ECDIS mandating process has nowtaken on a level of greater urgency with the shippingfraternity ultimately coming to the end of its breathholding exercise.
As with the introduction of previous mandatoryrequirements to fit equipment such as Radar, VDR orAIS systems onboard commercially operated vessels,many technical managers will now be faced with thetask of acquiring full compliance with the ECDIS
carriage regulations at the lowest possible capitalexpenditure.
Although this approach may undoubtedly resolve theshort term issues it may be prudent on this occasion toadopt a more proactive approach towards theimplementation of ECDIS systems especially whentaking into account that the primary function of ECDISforms in many ways the foundation and cornerstonesupon which safe navigation practices are formed.
With this in mind we consider the legislationsurrounding the mandatory introduction of ECDISequipment and peer under the veil of technical magicand mystery which has enshrouded this subject overthe last decade.
SOLAS Chapter VThe amendments to SOLAS Chapter V Regulation 19 –Carriage Requirements for Shipborne NavigationalSystems and Equipment came into effect on 1 January2011.
The amendments to the SOLAS Convention nowclearly include ECDIS systems within the definition ofnautical charts and publications with section 2.4stating that “An Electronic Chart Display andInformation System (ECDIS) is also accepted asmeeting the chart carriage requirements of thissubparagraph.”
A new paragraph 2.10 further identifies a requirementfor ships engaged on international voyages to be fittedwith an ECDIS system under the implementationschedule shown in the chart below.
JULY JULY JULY JULY JULY JULY JULY JULY JULY JULY2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
NEW PASSENGER SHIPS >500GT
NEW TANKERS >3000GT
NEW CARGO SHIPS >10000GT
NEW CARGO SHIPS >3000GT
EXISTING PASSENGER SHIPS >500GT
EXISTING TANKERS >3000GT
EXISTING CARGO SHIPS >50000GT
EXISTING CARGO SHIPS >20000GT
EXISTING CARGO SHIPS >10000GT
ECDIS system implementation schedule
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ECDIS performance standardsAn area which often leads to confusion is the simplequestion of what makes one system an ECDIS and theother an ECS (electronic chart system). The answer tothis question is simply that one system complies fullywith the IMO ECDIS performance standards and canbe accepted as meeting the requirements of SOLASChapter V regulation 19 and the other does not. Theserequirements are identified as follows:
% The ECDIS equipment must be type approved to theperformance standards as outlined in IMOResolution A. 817 (19) as amended by MSC 64(67)& MSC 86(70) relating to back up arrangements forECDIS systems and operation in RCDS mode
% The system must use official ENC data (vectorisedelectronic navigational charts) to IHO S57 standard,which must be supplied by or authorised by anational hydrographic office. Such ENC data mustbe corrected weekly
% The vessel must have an adequate back-up system.This may be another ECDIS system or paper charts
% IMO has ruled that ECDIS equipment having rasterchart display system (RCDS) capability may operateas a primary aid to navigation in the RCDS mode.Such charts must also be corrected on a weeklybasis
% When ECDIS equipment is used in RCDS mode, itmust be used in conjunction with an appropriatefolio of paper charts. The definition of ‘appropriate’is to be decided by national administrations.
STCW – Statutory trainingUnder the provisions of the STCW 95 Code, generaltraining obligations relating to the use of ECDIS exist.This is indicated by Table A-II-1 of the Code where it isstated “ECDIS systems are considered to be includedin the word charts.”
The degree of knowledge and competency concerningthe use of charts is explicitly defined within Table A-II-1as requiring the navigational officer to posses “athorough knowledge of and ability to use navigationalcharts and publications”. He must additionally show“evidence of skill and ability to prepare for and conducta passage, including interpretation and applyinginformation from charts”.
The IMO Model Course 1.27 The Operational Use ofElectronic Chart Display and Information System(ECDIS) is regarded as setting minimum requirementsa candidate should have gone through to receive anECDIS certificate and covers all relevant safety aspectsand overall system knowledge expected under ageneric ECDIS training course.
An element of confusion has however developedrelating to the need for training where an ECDIS systemhas been fitted but is to be operated as an aid tonavigation only. Under the forthcoming Manilaamendments to the STCW Code which are scheduledto enter into force on the 1 January 2012, generic andtype specific training will be required even if the ECDISequipment is to be used as an aid to navigation only.
ISM CodeIn addition to the generic training identified under theprovisions of IMO model course 1.27 type specifictraining is required where the equipment used duringthe generic training course differs from that to beactually used onboard.
This requirement is identified under the provisions ofsection 6.3 & 6.5 of the ISM Code which requires notonly effective training but familiarisation of newequipment and regulations with respect to safety andemergency related duties.
Although this requirement may be viewed as a relativelysimple task, the wide range of equipmentmanufacturers in the market may present a dauntingproposition for the ship operator with a diverse fleetequipped with several models of ECDIS systemsoperating varying generations of system software.
The position of effective type specific training is furthercomplicated by the various views adopted by differentIll
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flag states. An example of this is with reference tocomputer based training systems (CBT) which requiresflag state approval on a case by case basis. Additionallya CBT system approved by one flag state may berejected by another.
Port State ControlWith marine casualty investigators continuing to identifyineffective ECDIS operation and substandard levels oftraining as a key link in the chain of causation leading tomarine incidents, an increased focus on ECDIS hasbeen observed during routine inspections completedby Port State Control officers. The following listhighlights key inspection areas which are the subject ofparticular focus:
% Documentation indicating that the ship’s navigationsystem complies with IMO Performance Standardsfor ECDIS
% Written procedures on board the vessel for usingthe ECDIS system
% The master and watch-keeping officers are able toproduce appropriate documentation that genericand type-specific ECDIS familiarisation has beenundertaken
% The ship is equipped with the latest updates andnew editions of ENCs
% The ship is equipped with additional nauticalpublications, as defined by the national carriagerequirements
% There is agreement between sensor data and itspresentation on the ECDIS system.
% The ship is equipped with an approved back-uparrangement to ensure safe navigation for the entirevoyage, in the event of an ECDIS failure
% The ship is equipped with an appropriate updatedcollection of paper charts, if the ECDIS system isbeing used in RCDS mode.
ECDIS acronymsThe use of acronyms in the shipping industry hasalways been present and part of shipping’s fast pacephilosophy. However this system of abbreviation doescause great confusion especially between similaracronyms. Examples of these are where care inapplication and interpretation is needed are:
ECDIS Electronic chart display and informationsystem
ECS Electronic chart system
ENC Electronic navigational chart
RNC Raster navigational chart
RCDS Raster chart display system
IBS Integrated bridge system
NACOS Navigation and control system.
OperationalaspectsThis section considers the operational aspects ofECDIS and the intrinsic function that electronic chartand navigation systems have to play in the commerciallyoperated ship of the future.
The mandatory requirement and introduction of ECDISis seen by the regulatory bodies guiding the shippingindustry as a major step forward in safe ship operationand protection of the environment. The transition toelectronic navigation and the operation of a paperlessbridge is however initially viewed differently by theshipping community with increased operational costs ofnew equipment and additional training requirements.
It is also becoming increasingly evident that far fromreducing risk, ineffective operation of complex ECDISsystems resulting from poor management practices ortraining can actually increase the risk of incidents suchas collision and grounding with the interface betweencomputers extenuating the so called ‘human element’reported as causative in almost every marine casualty.
Automation of traditional manual navigational tasks hasbeen observed as delaying the opportunity for error
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detection and recovery allowing a navigational singlepoint failure to develop undetected into a single pointcatastrophic failure ultimately resulting in an incident.
With the key to reducing management costs andnavigational risk intrinsically linked with effective ECDISpractices and procedures we now consider ECDIS andits fundamental operational requirements.
The modern ECDIS systemElectronic chart display and information systems in theirsimplest forms are single ‘stand alone’ units with basicsensor inputs such as course and speed displaying theship’s ‘real time’ position on an electronic navigationalchart (ENC) that complies with the performancestandards outlined under the provisions of IMOResolution A.817(19).
The ENC chart must further comply with the IHO chartdata transfer standard S-57 (S-100 in the future) issuedby an authorised hydrographic office. The system musthave an adequate back up arrangement comprising of asecond independent ECDIS or an adequate up to datefolio of paper charts before the system can beconsidered as meeting the SOLAS Chapter VRegulation 19 chart carriage requirements.
Although the basic ECDIS system may be theequipment introduced during the ‘retro fit’ period forvessels presently in operation, the ship of the future willundoubtedly incorporate the electronic chart displayand information system into the heart of the integratedbridge system (IBS) combining navigational equipmentsuch as radar, differential global positioning systems,automated information systems, propulsion control andsystem alarms into a single monitoring station ornavigation control module.
Although this combination of navigational systems intoa single control panel is undoubtedly the way forward,the change in navigational methodology does present
new challenges in relation to the requirements of safenavigation of the modern vessel.
Electronic chartsThe subject of electronic charts in relation to ECDISoperation is probably an area which generates anelement of confusion. This is primarily due to the factthat ECDIS can operate under the amendments tothe IMO ECDIS performance standards in what isreferred to as RCDS (raster chart display systems)mode utilising raster charts when vector chart coverageof the navigational area is not available. In order to fullyanalyse this provision and mode of operation a cleardistinction between raster and vector charts must bemade.
ENCs or vector charts are compiled from a database ofindividual items (objects) of digitised chart data anddisplayed as a seamless chart. When used in anelectronic navigation system, the data can then bere-assembled to display either the entire chart image ora user selected combination of data. ENCs areintelligent in that systems using them can beprogrammed to give warning of impending danger inrelation to the vessel’s position and movement.
RNCs or raster charts on the other hand are producedby digitally scanning a paper chart image. The resultingdigital file may then be displayed in an electronicnavigation system where the vessel’s position can beshown.
Since the raster chart display is merely a digitalphotocopy of the original paper chart, the image has nointelligence and other than visually, cannot beinterrogated. The fundamental differences betweenvector and raster charts are identified below:
% Vector charts have no defined boundaries andprovide a seamless visual display where rastercharts operate similar to paper charts
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% Raster chart data cannot itself trigger automaticalarms although some alarms may be entered
manually by the user
% Horizontal datum and chart projection may differbetween raster charts
% Chart features cannot be simplified or removed tosuit particular navigational circumstances
% Without selecting different scale charts the ‘lookahead’ capability of raster charts may be somewhatrestricted
% Orientation of the raster display to other than chartup display may affect the readability of the chart
% Display of a ship specific safety contour or safetydepth cannot be highlighted on a raster chart unlessmanually entered by the user during passageplanning
% Excessive zooming in or out from the natural scale ofthe raster chart can seriously degrade capability.
Under the present IMO legislation, navigational areasnot covered by ENC charts must be identified at theplanning stage with an ‘appropriate’ portfolio of up-to-date paper charts available onboard to be used inconjunction with the ECDIS equipment when operatedin RCDS mode.
Although the wording ‘appropriate’ used under theprovisions of the IMO Resolution has been defineddifferently by the various authorities of sovereign states,specific guidance can be now be found on the IHOwebsite www.iho-ohi.net/english/encs-ecdis/enc-available/backup-paper-charts.html.
With only a brief review of the requirements ofelectronic charts and their mode of operation inconjunction with ECDIS systems it is apparent that thisis an area which requires careful review by competentwell-trained and familiarised officers at all stages of thenavigational passage.
Generic trainingEffective training and familiarisation of the master andofficers in relation to ECDIS operation has beenidentified by the International Maritime Organization(IMO) as an area of increased concern prompting arevision of the training requirements at the STCW 95conference held in Manila on 21 June 2010.
Under the revised STCW 95 training requirementsentering into force on 1 January 2012 under the tacitacceptance procedure, the master and those in charge P
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of a navigational watch are required to complete ageneric ECDIS training course which meets the newstandards laid down under the Manila amendments.This requirement pertains to all vessels fitted withECDIS equipment irrespective of the fact that theprimary form of navigation identified under theprovisions of the company management system may bepaper.
In the UK the present situation has recently beenclarified to some extent by Marine Information Notice(MIN) 405 entitled “Training for ECDIS as PrimaryMeans of Navigation” which was published January2011.The notice clarifies what training is acceptable formasters and deck officers of UK-flagged vessels whichhave ECDIS as their primary means of navigation.
MIN 405 presently does not however make anyreference to training requirements for vessels fitted withECDIS systems identified under the companyoperating procedures to be used as an ‘aid tonavigation only’ with paper charts still identified as theprimary means of navigation. As MIN 405 expires on 31December 2011 it is assumed that a further instructionwill be issued reflecting the Manila amendments prior tothe 1 January 2012.
Type specific trainingIn general terms the requirement for type specifictraining for ECDIS has been identified under Section 6of the ISM Code which establishes a clear requirementfor not only effective training but familiarisation withrespect to safety and emergency related duties.
In addition to the ISM Code requirements, MarineInformation Notice (MIN) 405 paragraph 3 nowidentifies a clear requirement for ship specific ECDIStraining relating to the make and model of theequipment fitted on the ship on which the master ornavigation officer is expected to operate. Marine
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Information Notice 405 further clarifies that this trainingshould build on the MCA approved generic trainingformat and be delivered by the manufacturer; themanufacturer’s approved agent or a trainer who hasattended such a programme.
The present requirement relating to type specifictraining for UK-flagged vessel is now partially clarifiedunder the provisions of MIN 405. The use of the words‘and be delivered’ does however suggest that thepresent solution adopted by many leadingmanufacturers providing computer based trainingprograms may not on their own merits be consideredsuitable under the new guidelines.
With the dilemma relating to type-specific training nowclearly identified, many shipping operators may befaced with the logistical headache of either training alltheir operational staff in every ECDIS system within thefleet or be required to provide an onboard certified‘trainer’ having previously completed a suitable ‘trainthe trainer’ course.
With many shipping operators encountering difficultiesfinding a solution to their type specific trainingrequirements two alternatives have been identifiedbelow.
At the centre for training excellence at CSMARTAlmeria, Amsterdam (www.csmartalmere.com)developed in conjunction with a market leading cruiseship operator, ECDIS equipment has beenstandardised throughout the fleet with the bridge layoutreplicated at the training centre. This standardisationeffectively circumventing the additional requirement fortype specific training as all the systems operated withinthe fleet is the same.
This training has been further advanced by theintroduction of a revolutionary bridge teammanagement approach moving away from thetraditional rank structure adopting a function basedairline style ‘navigator / co-navigator’ system which hasbeen proven to effectively reduce the risk ofnavigational hazards.
An alternative solution to the issue of the trainingrequirements of a multi functional and diverse shippingorganisation operating many different ECDIS systemsof various generations has been developed by ECDISLtd Southampton (www.ecdis.org) .
Focusing on the needs of the modern ship manager andtheir respective requirements, ECDIS Ltd hasdeveloped a centre of learning excellence providinggeneric training course utilising many different types of
ECDIS system in a single training location. Thisprovides increased system knowledge of ECDISsystem operation, as well as complying with UKregulations and issuing MCA / STCW ECDIScertification.
Passage planningEffective passage planning completed by paper chartor by electronic systems is essentially the process ofdefining the safest navigational route in conjunctionwith established safety margins under which the voyagewill be executed.
The passage plan should be comprehensive, detailedand easy to interpret and effectively reduce navigationalrisks and aid the ship and its officers to safely navigatingfrom berth to berth. Electronic navigational planningconsists of three stages namely Appraisal, Planningand Control. Although this section does not attempt tooffer a guide to electronic planning the key elements willbe discussed.
Appraisal – This stage of the plan should identify thatthe required electronic charts are available andcorrected up-to-date. Areas where ECDIS would beoperated in RCDS mode should be identified withappropriate paper charts available. The requirements ofsovereign states during periods of coastal passagemust be considered (IHO website) with all relevantpublications and sailing directions reviewed. Safetycontours should be established and information relatingto weather, current, tides, chart datum, draft, speed,environmental limits, air draft, squat and generalhazards such as high traffic concentrations should beprepared and made available.
The concept of safety contours is a key functionspecific to electronic charts and further outlined in thediagram below.
Shallow contour
Chart zeroDisplay
Safety contour (input value)Safety contour (value existing in the
vector chart)
Blue
Light blue
Grey-white
White
Non-navigable area Navigable area
Safety depth
Deep contour
Planning– After the appraisal stage, the planningofficer now begins the track planning. The planningstage can be divided into three different sub-stages or‘cuts’.
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During the cuts, the planning officer will move through aquality control process from a general plan to therefined final track which will be used for navigation andapproved by the master.
It is essential that the built in automatic check function isused throughout the planning stages however it mustbe remembered that the effectiveness of the automaticcheck system relies on the accuracy of the safetyparameters set by the user.
The final track is then often displayed with associatedwaypoint information and navigational notes at thecentral conning station or chart table for reference bythe navigational officer during the control stage of thepassage planning process.
In fact new pathways to failure seem to have developedcentered on an initial miscommunication between manand machinery resulting in a misalignment in the realityof where the navigator thinks he is and where theautomated system has actually taken him.
Research has shown that humans are poor monitors ofautomated systems and tend to rely more on systemalarms than manual checks especially in relation tothose systems which have proven themselves as highlyreliable.
In several casualty investigations it has beendetermined that automation has resulted in thenavigator developing an ‘operational bias’ relying on theautomated systems rather than the salient cuesprovided visually through the bridge window.
In this respect an extensive risk assessment of ECDISoperation combined with a clear requirement of manualsystem checks of critical automated operations must beestablished within the company safety managementsystem effectively identifying operational risk andintroducing control measures to reduce the effect ofsingle point failures.
Before we consider the assessment process, the termrisk must be defined. Risk in relation to ECDISoperation can be considered as a hazard or source ofnavigational error with the potential to cause loss orharm to personnel, the environment or the ship (or otherships) itself.
The main areas of risk when considering ECDISoperation can be identified under three maincategories:
1 The equipment itself may suffer from failure (bothhardware and software) including power outagessensor input failure and potential virus infection.
2 The charts are operated under permit which mayexpire, charts in use not corrected up-to-date,updates not correctly applied, ENC chart coverageunavailable requiring the system to be used inRCDS mode without the appropriate paper chartfolio being available.
3 The operation of the ECDIS system onboardcarried out by poorly trained crew following poornavigational practices and operational proceduressuch as excessive zooming or operating the chart fornavigation with base information only displayed.
Effective risk assessment as a critical function ofimplementation of electronic navigation is rarely
Control – The control stage of the plan establisheshow the vessel’s progress and the navigational systemswill be monitored throughout the passage. This willinclude an effective analysis identifying all risks ofoperation. When official ENC (vector charts) are used,systems of automatic and manual checks must beestablished if the danger of over reliance on automatedsystems is to be avoided.
Traditional track monitoring methods such as parallelindex and visual bearings should be included at thecontrol stage in addition to modern techniques such asradar overlay of the electronic chart. This shouldhowever not obscure the radar picture to the levelwhere acquired targets may be lost or the navigationofficer may be affected by information overload.
Risk analysisOn review of the increased technology available tothe modern navigator one of the conundrums must bewhy increased computerisation and automation hasnot removed, and perhaps not even reduced thepotential for failure in the systems in which they wereintroduced.
Guard sector movesalong with the shipand its direction isalways the same asthe ship’s direction ofmovement (the guardsector is not displayedon the screen)
Ahead sector width,set in the ChartAlarms menu
Length was input inthe Safety Contourframe in the AlarmSettings > ChartAlarms menu
Safety contour
Ship’s positionwhen the SAFETYCONTOUR alarm
occurs
Safety contour
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Legal implicationsThis section considers the legal effect of failure to meetthe statutory ECDIS requirements and the effect onclaims where levels of operation or knowledge ofECDIS are considered to be a factor or fundamentallink in the chain of causation leading to an incident.
emphasised when the transfer from paper to digitalnavigation is considered.
As our short review of this subject has hopefullyhighlighted a full and comprehensive risk assessmentclearly identifying the hazards relating to the operationof ECDIS systems should not only assist thoseassociated with the task of transfer between the twomethods of navigation but also accelerated themigration process and the positive aspects ofelectronic chart operation relating to increased crewefficiency whilst reducing operational costs.
SummaryFrom this short review of ECDIS operation and thefunctions to consider when transferring navigationalpractices from paper to electronic format, it is clear thatthe process, although complex, can if effectivelycompleted, reduce operational cost whilst increasinglevels of safety.
The effect of poor management and training in relationto ECDIS operation can however result in increasednavigational risk and operational costs includingdetention during port state inspections and increasednavigational related incidents.
This review into the legal implications will commencewith a closer look at the legislation relating to ECDISoperation and the effect on the vessel’s ability tooperate in the event of a failure to comply withprovisions of SOLAS, STCW 95 or indeed ISM Codestatutory legislation.
The consequences of claims in tort, and undercontracts of carriage will also be considered with theconsequent change relating to how casualties of thefuture will be approached from a marine inspector’sviewpoint also considered.
Statutory complianceAs previously discussed the international legislationgoverning ECDIS and its operation is provided under:
●●●●● SOLAS Chapter V Regulation 19, which identifiesthe chart carriage requirements.
●●●●● IMO Resolution A.817 (19), which establishesECDIS performance standards.
●●●●● STCW 95 (shortly to be amended by the Manilaamendments) that identifies the trainingrequirements relating to ECDIS operation.
●●●●● MIN 405 training for ECDIS as a primary means ofnavigation for UK flagged vessels that further clarifythe familiarisation requirements relating to ECDISoperation.
●●●●● ISM Code Section 6, which identifies clearrequirements for training and familiarisation withrespect to safety and emergency, related duties.
With Port State Control inspectors operating under theParis and Tokyo MOUs now becoming more familiarwith ECDIS related compliance and operational issues,an increased focus during random port state inspectionis now evident. The effect of failing to meet theestablished legislation governing ECDIS operation canhave severe ramifications including:
●●●●● Detention of the vessel under the provisions of PortState Control conventions
●●●●● Suspension of Class
●●●●● Evidence leading to the issue of a major non-conformance under the ISM Code resulting insuspension of the ISM DOC / SMC
●●●●● Automatic termination or alternatively excluding theinsurer for liability for any breach associated with thefailure to comply with the requirements under hulland machinery insurances.P
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Admiralty damage claimsClaims arise in many forms resulting from loss during amarine adventure. Incidents such as collision,grounding, machinery failure, heavy weather andcontact damage to docks and jetties are all matterswhere the advent of sophisticated electronic aids tonavigation and permanent recording facilities availableto investigators, will inevitably lead to closer scrutinyand the identification of fault.
Collision
Regulations relating to collision avoidance arecontained in the provisions of S.I 1996 No. 0075 (TheMerchant Shipping Distress Signals and Prevention ofCollisions Regulations 1996). Non-compliance withthese regulations is potentially a criminal offence andwill be evidence of potential negligence in a civil case fordamages.
Electronic record keeping will make it easier toprosecute (or defend) cases where breach of theCollision Regulations is alleged.
Grounding / Stranding
The introduction of ECDIS equipment operated inconjunction with approved ENC charts should make theaccidental grounding of competently operated vessels athing of the past. Automatic route checking, monitoringand alarm systems effectively operated in conjunctionwith electronic chart safety contours should not onlyavoid human errors during planning stages but alsoeffectively monitor the ship’s position whilst on passage.
Safeguards against accidental changes to the approvedpassage plan, position inputs, speed inputs, positionmonitoring and cross reference should be establishedunder the company SMS. However, in the event ofgrounding incident the effective operation of the ECDISsystem will be carefully examined.
With ECDIS systems having many complex features ofoperation, a failure by the operator to navigate in thecorrect format with only base chart information selectedfor example could result in critical information containedin the chart database being missed or undetected.
Where a failure of the requirements relating to trainingor familiarisation in ECDIS operation is established,claims arising from the alleged unseaworthiness of theship are likely to arise and will be of major concern toowners, H&M and P&I insurers.
Limitation of liability
Section 185 of the Merchant Shipping Act 1995
incorporates the Convention on Limitation of Liabilityfor Maritime Claims 1976 into English Law. Article 4 ofthe convention states that “A person liable shall not beentitled to limit his liability if it is proven the lossresulted from his personal act or omission, committedwith the intent to cause such loss or recklessly andwith the knowledge that such loss would probablyresult.”
Although this test imposes a significant burden on theparty attempting to break the right to limitation it willenable creative claimants the opportunity to probe newareas of investigation where clear breaches in trainingand operation of electronic aids to navigation can beestablished.
Claims under contracts of carriageThe provisions of the Hague-Visby Rules are enactedwithin English Law by the Carriage of Goods by SeaAct 1971 (COGSA 1971), Article III identifies arequirement for the carrier to exercise due diligencebefore and at the beginning of the voyage to make thevessel seaworthy and to properly man, equip andsupply the ship.
Article IV of COGSA 1971 subsequently allows thecarrier to be indemnified against cargo claims providingthat; “the carrier nor the ship shall be liable for loss ordamage arising or resulting from unseaworthinessunless caused by want of due diligence on the part ofthe carrier to make the vessel seaworthy, and to securethat the ship is properly manned, equipped andsupplied.”
With the competence and ability of the master andcrew to effectively operate electronic navigationalsystems established as a critical element in thevessel’s ability to encounter the ‘ordinary perils of the
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sea’, the cause of cargo damage will now be closelyreviewed in relation to ECDIS certification andoperation.
Where the carrier attempts to rely on the provisions ofarticle IV of COGSA 1971 to avoid claims relating tocargo damage, the burden of proof rests firmly with thecarrier to prove that he exercised due diligence.
In this respect if it is proven that there was a failure tocomply with the statutory requirements of ECDISoperation or installation and this failure was consideredcausative in relation to the incident, the presumption ofa lack of due diligence on the part of the carrier may beunavoidable.
Marine insurance claimsThe effect of increasing levels of technology on boardmodern ships and the ability to electronically documentthe events leading to a marine casualty have created atendency within the insurance sector to investigateclaims against perils insured against with defencessuch as seaworthiness and lack of due diligence on thepart of the assured featuring more often.
Insurance policies covering H&M, and P&I may now bereviewed closely by the insurer especially with theprovisions of the ISM Code now linking operationalaspects onboard to the ‘highest level of management’through the designated person.
The lack or efficiency of equipment, navigational aids orcharts has been clearly established as affecting thevessel’s seaworthiness both in relation to contracts ofcarriage and under insurance policies. Additionally,sufficiency and competency of crew and their levels oftraining with regard to on board technology can alsoimpinge upon the vessel’s seaworthiness.
With the continuing advancements in technologymaking the question of the dynamics of an incident
resulting in loss an item of fact rather than speculation,combined with the link established between the actionsof those on board to the ‘highest level of management’through the ISM Code, defences to claims relying ontraditional navigational perils insured against andnegligence of the master and crew may become moredifficult to sustain.
Casualty investigationCasualties and incidents of one kind or another arebound to occur from time to time during the navigationand operation of ships. When they do, legal disputesare likely to arise especially when large sums areinvolved.
The principle aim of the commercially mindedshipowner, charterer and cargo owner is of course tosettle any disputes quickly and cheaply. If however adispute cannot be resolved between the parties thenthe matter may refer to arbitration or the courts fordetermination.
In hearing disputes between two parties, arbitratorsand judges rely upon the evidence presented to them toestablish the facts of the case. This evidencetraditionally presented by the parties in the form of bothoral and written statements of witnesses andcontemporary log entries and documentation has in thepast provided the basis on which to decisions havebeen made.
This evidence sometimes required the courts todetermine conflicting statements on a particular issue indispute. In such situations the judge or arbitrator toestablish the facts of the case has heavily relied oncontemporaneous evidence such as photographic,video or electronic information.
In this respect electronic equipment designed with arecording facility such as ECDIS, voyage datarecorders, AIS data and even GPS have become acrucial part of legal proceedings often used todetermine disputed facts.
With literally hundreds of different types of electronicsystems with recording facilities operating differentgenerations of software, the recovery of this informationcan however be a difficult task in itself.
As this critical and at times complex procedure ofelectronic data recovery has been clearly identified itmay be questioned why many ship managers, ownersand operators have failed to provide clear instructionsrelating to the preservation of such data in the event ofan incident.
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Additionally, critical information may be lost due to lackof knowledge in relation to the storage space or memoryof the equipment in question or by the data being simplyoverwritten if action has not been taken for itspreservation.
With this in mind it seems sensible for the ship manageror owner to establish not only what electronic equipmentinstalled on board each vessel has recording facilities,but also provide clear instructions to the master, whichidentifies the actions to download the data and safeguardthis critical evidence. Failure to preserve evidence maybe viewed with suspicion and adverse inferences drawn.
The design of a simple checklist (see next page) couldbe used to establish the equipment onboard withrecording facilities and identify the process to befollowed in the case of an incident.
It is important to understand that ECDIS systems arecapable of recording not only the log of events but theparameters of operation set up by the operator at thetime of the incident.
This electronic data may play a crucial part in thelitigation process especially during the transition periodfrom paper to electronic navigation where questionsrelating to the effective operation of ECDIS systemsmay be raised.
This will mean that in the case of a collision for examplewhere vector charts are selected and overlaid on radarshaving a primary collision avoidance designation, it maybe possible for the officer charged with the navigationduties to reach information overload especially if layersin excess of chart base levels are selected.
If this ineffective mode of ECDIS operation resulted in atarget going undetected, ultimately resulting in acollision, the failure of the navigator to act in accordancewith the Collision Regulations in this mode of operationmay not only result in criminal charges and civilnegligence actions, but may render the vesselunseaworthy with questions as to the exercise of duediligence on the part of those responsible for themanagement of the ship raised by cargo interests orinsurers.
This new technological age also places a greaterresponsibility on the casualty investigator who is taskedto attend incidents and collect evidence. The nextgeneration of casualty investigators now undoubtedlyrequire and extensive understanding in relation to theoperation of equipment such as ECDIS and a practicalknowledge relating to the principles of electronicnavigation.
ConclusionThe ECDIS revolution and the rapid introduction ofcomplex computerised systems and automation onboard ocean going vessels is perceived by the industryas a positive change and an improvement in generalstandards of operation, levels of safety and protectionof the environment.
The technological age has also brought with it newlegislation and operational guidance requiring strictcompliance. The additional introduction of voyage datarecorders (VDR) and ECDIS recording systems noweffectively provide the suitably qualified marineinvestigator with a clear picture of events leading to amarine casualty. Combine this with the requirements ofdocumentation under the provisions of the ISM Codeand the preamble and conclusion to a marine casualtyinvestigation is complete.
With the requirement for effective training,familiarisation and operation now receiving increasedfocus, with traditional damage defences of navigationalerror, heavy weather and crew negligence now beingsubjected to additional scrutiny, the ECDIS revolutionmay be the catalyst which sparks a new cycle in theclaims sector and one which may be even more costlythan the introduction of the technology itself…
Acknowledgement: Justin Lawes, C Solutions Limited.Email: [email protected]
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Equipment ECDIS/ECS
Type
Recording facility
Storage capacity
Storage medium
Download method
Equipment GPS
Type
Recording facility
Storage capacity
Storage medium
Download method
Equipment AIS
Type
Recording facility
Storage capacity
Storage medium
Download method
Equipment Voyage data recorder
Type
Recording facility
Storage capacity
Storage medium
Download method
Equipment CCTV
Type
Recording facility
Storage capacity
Storage medium
Download method
Equipment System alarm equipment
Type
Recording facility
Storage capacity
Storage medium
Download method
Bridge data recording equipment checklist
Ship
Flag
Date
15
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UK P&I CLUBIS MANAGEDBY THOMASMILLER
For further information please contact:Loss Prevention Department, Thomas Miller P&I LtdTel: +44 20 7204 2307. Fax +44 20 7283 6517Email: [email protected]
