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modern navigators are familiar with radar navigation and, since the Andrea Doria-Stockholm collision, have been required to complete a radar course before qualifying as a watchkeeping officer. Although radar is a relatively new device, a whole generation of navigators now at sea has never sailed without it, and probably regard radar as the biggest advance in navigation since Harrison’s chronometer. Today, the vast majority of ships arrive at their destinations safely and on time, despite having to thread their way through crowded areas such as the English Channel and Nantucket in fog. Traffic is getting thicker and faster; it is still converging on old trade routes and arrival points that have not changed since our grandfathers’ day. The fact that there are so few collisions says a lot for radar and radar operators.
In a sense, I am a beneficiary of the Andrea Doria collision; I was a midshipman when she sank, and I was hustled through a good radar school in Liverpool even before I was examined for my second mate’s ticket. When the public understood that there were not enough radar schools, public money was spent to remedy the situation. By the time I got my second mate’s ticket, not only was I well trained in radar navigation but, more significant, so was everyone else. Most countries with ocean-going fleets required radar training for their officers, so the radar schools did a booming business. They appear to have done a good job, too. Most of the navigators that I sailed with really knew their way around radar. They were at home with it and were confident. One had the impression that they enjoyed using radar and were jealous of their abilities; expertise was the mark of a good officer. Radar was of genuine interest and constructive use was made of it.
During the years that I was at sea, most of which were spent on the fog-bound routes of the North Atlantic, I never saw a collision. I personally relied heavily on radar and am of the opinion that a modern navigator should feel free to do so without repercussions. However, as a result of some court decisions in which navigators lost their licenses for speeding in fog, and because of senior officers’ reluctance to rely on radar, there is some unease about not stopping in fog. There is, I feel, some confusion about radar navigation caused largely by the 1948 Safety of Life at Sea (SOLAS)
■4 Incredibly, no one was injured when the bow of the merchant vessel C. E. Dant was imbedded in the Liberian vessel Agaean Sea in fog-shrouded Juan de Fuca Strait on 4 September 1972. This relatively minor accident poses anew the old question: What constitutes ",moderate speed" in fog?
UPI PHOTO
Conference and the restrictive rules that grew out of it, and the confusion in the courts was reflected throughout the industry. In fact, at least one shipping company removed all radar sets from its ships. Some of the older captains that I sailed with heartily agreed with this decision, and at least one would not allow the officer of the watch to switch on the radar unless he was first informed. Since I personally used the radar quite a lot, I spent a lot of time on watch sharing the bridge with a captain who had decided that since the radar was on, he had better come up and take over.
Most junior officers have had to defend their reliance on radar, usually against senior officers who don’t like you to forget that they had to do without it. The most common objection to radar that I heard was something to the effect that I and my generation wouldn’t know what to do if it broke down. In all fairness, I was uncomfortable when it did break down, but this objection ignores the fact that I sure as hell knew how to use it when it was working, which was most of the time. This objection to reliance on radar, shared by many, reflects a gap between generations that still exists today. Assuming that radar really is an important advance, then the officer who received his formative training as a navigator before radar is going to be very different from the younger man who grew up after radar. Generally, the cadets who went to sea during the forties and early fifties probably didn’t grow up with radar, and the cadets who followed probably did. The cadets of the 1940s and 1950s are still with us; they are now captains, senior officers, marine superintendents, and the like, and are the ones who shape policies. This generation includes the present judges in the federal district courts who sit in admiralty. It is about these men and their decisions that I am writing.
The federal district courts have original jurisdiction over admiralty matters, and a fair size body of law has developed concerning radar collisions. The jurisprudence is still evolving, and it is being shaped by judges who are not seamen, by advisory officers who were pre-radar cadets, and by legal commentators who are none of the above. It comes as no surprise, then, that there is some confusion in this field. Quite often, judges have come to expect certain standards of behavior from navigators which are not quite realistic. To expect judges to do anything else would be unrealistic, too, and the navigators are going to have to live with an imperfect appreciation of their skills for as long as judges remain judges, and not seamen.
Their interpretation of the radar provisions of the International Rules of the Road needs examining, and it is well to know how a court would judge a navigator who gets into a collision. The statutory guidelines that
Radar Collisions and the Courts 79
the courts turn to are those contained in the preliminary instructions appearing before Rule 15, also the radar annex, Rule 16, and anything else that happens to be relevant in the Rules of the Road. Since these rules are necessarily rather broad in their application, their interpretation in the body of case law that has already been decided is also used.
The judges follow prior decisions intelligently, not slavishly, and are free to create new law when the situation demands. The tendency is not to create new law if the old law will do; judges are by necessity rather conservative, interested in preserving continuity of the law. It is fashionable today to regard conservatism as something reprehensible, to be done away with as soon as possible, as if it represented laziness of mind. This ignores one of the basic functions of the law, whose job it is to make sure that laws that exist now will exist in the future. We make plans today for wills that will not become active for 20 years or more; we plan corporations that will be in existence for the next 50 years. The writers of these wills and the planners of these corporations expect that today’s laws will not be substantially different from those of the future. In other words, they expect the courts to behave conservatively. These courts, in their turn, reflect this wish. So, bearing in mind that the law of admiralty is not going to change overnight, merely because of the introduction of true-motion radar, let us see what it says.
Before looking at the effects of radar collisions, it is necessary to examine two of the rules of liability in admiralty law. First, damages under admiralty law in the United States are not apportioned on a comparative negligence theory as they are in most other nations. If only one vessel in a collision is at fault, that vessel is liable for all of the damages resulting from the collision. If both of the vessels in the collision are at fault, each vessel is liable for one half of the damages, regardless of the degree of fault of each vessel. Courts have tried to get around this result and have formulated the so-called "major-minor fault” rule. This rule is sometimes used to mitigate the harshness of the equally divided damages rule by exonerating the comparatively innocent vessel from liability in collision cases where one vessel was at fault in only a technical or "minor” sense, while the other vessel was grossly negligent. Second, the owner of a vessel involved in a collision may limit his liability under the limitation act to the value of his interest in the vessel after the collision, plus the vessel’s pending freight, if the act or thing causing the collision was committed or happened without the "privity or knowledge” of the owner. The vessel can, therefore, be found to have no fault, in which case no liability attaches; some fault, in which half of the damages resulting from the collision will
be assessed against her; or entire responsibility for the collision in which case she is liable for all of the resulting damages. Should the vessel at fault be found to be unseaworthy, which unseaworthiness can be traced to the owners’ "knowledge,” the owner would not be entitled to limit his liability under the act. Knowledge is not limited to what the owner actually knows, but includes what he is charged with finding out.
An interesting question which requires a brief discussion at this point is whether a vessel without radar may be held to be unseaworthy. Totally divorced from concepts of fault and negligence, the doctrine of unseaworthiness is a species of liability without fault. The owner of a vessel has an absolute and non-delegable duty to furnish his crew with a seaworthy vessel, and he is liable for any damage ultimately caused by a breach of that duty. The claim that a vessel without radar is "unseaworthy” was rejected in a fairly recent stranding case, the court saying that the carrying of radar had not yet become so generally accepted in the shipping industry and was not so essential to navigation that a vessel should be held unseaworthy for failing to have radar aboard.1 The court in this case admitted that the standard of seaworthiness changes with scientific advancement, and that someday a vessel may be unseaworthy if she is not carrying radar. The courts are diffident about laying down the rule which states that a vessel is unseaworthy through lack of radar; this is the job of the legislature and not the courts, but the courts have been edging toward this question for some time now.
Lurking in the background of all of these cases is the celebrated case of the T. J. Hooper, Second Circuit (1932) 60 F.2d 737, cert, denied, Eastern Transportation Company v. Northern Barge Corporation (1932) 287 U. S. 662, 53 S.Ct. 220, where in 1932, despite the absence of statutes, regulations, or even customs as to radio receiving sets, Judge Learned Hand found a vessel unseaworthy for lack of one. Judge Hand was establishing a standard of "proper diligence” in this case; he regarded radio as a device so imperative that even universal disregard would not excuse its omission, regardless of the fact that it was not the custom in those days to carry radio. However, no one has yet taken this step in regard to radar. The best we can say at present is that noncompliance with the custom of carrying radar would be strong evidence of the lack of due care, but would not be conclusive. While a modern navigator would regard a sea-going vessel as "unseaworthy” for lack of a radar, the courts as yet
1President of India v. IVest Coast Steamship Co., 213 Fed. Supp. 352 D.C. Or. (1962) affirmed 327 F.2d 638, 9th Circuit (1964), Cert, denied 377 U.S. 924 (1964).
will not. The legal concept of unseaworthiness is rather different from that of the practical navigator, and the two concepts should not be confused.
The rules that navigators have the most trouble with are 15 and 16, and the problems revolve around the old question of moderate speed. A vessel navigating in fog shall "go at a moderate speed having careful regard to the existing circumstances and conditions.” Various interpretations have been put on this rule by the courts. Perhaps the most common interpretation is the sight rule: "moderate speed is that speed at which a vessel will be able to stop in time to avoid a collision after another vessel comes into sight.” The sight rule dates from the Chattahoochee, \Tb U. S. 540 (1899) and the Umbria, 166 U. S. 404 (1897). Regardless of their antiquity, these rules are still in use today.
The courts are not in agreement as to which of the various interpretations of the statutory moderate speed requirement should be applied, and one court has recently attempted to overcome some of the confusion by insisting that what is a moderate speed actually depends upon the peculiar circumstances of each case, thus throwing the burden back onto the navigators’ shoulders.[1]
Must a vessel reduce speed to a point where she loses steerageway? An early case answers this in the affirmative. In the Saganore, 247 Fed. 743 (1st Cir. 1917), the court recognized the conflict between the half-visual- distance rule and the rule that the vessel should be entitled to maintain her steerageway, and merely stated that since rules were somewhat inconsistent, both should be applied so far as possible. This was little help to the man on the bridge.
Since the "half-distance” rule is so important, it is worthwhile to examine it in detail. Its application is largely confined to inland waters, estuaries and the like, where most collisions occur. It does not seem to apply to ocean passages, but has been applied to a vessel leaving inland waters and heading out to sea. Exactly where this imaginary boundary lies is uncertain, and it is extremely unlikely that any court will lay down a 10 or 20 mile boundary line beyond which the "halfdistance” rule will be deemed to be non-operative. However, it is used in crowded waters, along with other judicial speed tests, and it is not inconceivable that a court might seize on it in deciding a collision case in crowded waters on the high seas. The area off the Nantucket Light Ship springs to mind, also the Strait of Gibraltar. To see how this rule is applied, we need to look at some inland water collision cases.
Article 16 of the Inland Rules provides in part that
every vessel navigating in restricted visibility shall "go at moderate speed, having careful regard to the existing circumstances and conditions.” In The Martello, the Supreme Court, after noting that the vessel was emerging from a busy harbor and traveling in a major sea lane, stated that moderate speed required a reduction of speed to the lowest point consistent with good steerageway.[2] Three years later, however, the Court applied a somewhat different rule. In The Umbria, the Court held that sufficient precautions must be taken to enable the vessel to stop in time to avoid collision after sighting an approaching vessel, assuming that it also was proceeding at moderate speed. The Court amplified this approach to some degree in The Chattahoochee, commenting that it was impossible to say what should be considered moderate speed under all circumstances because so much depends on the density of the fog and the chances of meeting other vessels.
Largely on the basis of these early Supreme Court decisions, the lower federal courts have developed three basic tests as to what constitutes moderate speed in restricted visibility. One, the "half-distance rule” or "rule of sight,” requires that a vessel proceed at such a speed as to enable it to come to a complete stop in one-half the distance of the prevailing visibility. The case most often cited in support of this test is The Silver Palm.* In that case, the naval cruiser Chicago collided with a British motorship in international waters. Relying on the half-distance rule, the court calculated that the Chicago was cruising at 19 times the rate of moderate speed, and consequently, she was held equally at fault. Computation of moderate speed by this formula has been used occasionally by various courts, but consistent use of the half-distance rule seems only to have been applied in the Ninth and, until recently, the Fifth Circuits.
Another rule which the courts have often discussed is that of "bare steerageway.” Under this test, a vessel would be required to slow to the lowest speed at which her rudder would still be effective as a means of control. Although at least two courts have noted that most cases appear to agree that in dense fog, speed should be reduced to the lowest point consistent with good steerageway, a condition of close to zero visibility would produce an inconsistency between this test and the half-distance rule. As a result, the steerageway rule seems to be qualified somewhat by the generally recognized judicial limitation that if a dense fog necessitates a speed so slow that a vessel cannot maintain steerageway, she must stop her engines or anchor. Possibly because of this conceptual difficulty, use of the bare
315} U.S. 64 (1894).
494 F.2d 754 (9th Gr. 1937), cert. den. 304 U.S. 576 (1938).
Radar Collisions and the Courts 81
steerageway test has been infrequent. When applied, it has often been combined with the rule of sight and stated as that speed slow enough to stop upon sighting an approaching vessel also going at moderate speed but fast enough to remain under command.
The final method sometimes employed by courts to determine what constitutes moderate speed is to define it as a relative term which is dependent upon the circumstances of each case. This approach apparently has developed as a means of avoiding the inflexibility of the half-distance rule. One court has cautioned that the half-distance or visible distance test is not "a universal one to be applied blindly,” and another has commented that the steerageway and half-distance rules are "but glosses upon the basic rule requiring operation at a moderate speed, and, like it, they must be applied according to the particular circumstances of each case.” Recently, the Fifth Circuit also refused to be bound by any fixed test.
Actually, the "half-distance” rule as applied in inland collision cases is both rigid and faulty. Strict application of this rule fails to take into account the time necessary for actually reversing the engines after the presence of another vessel is detected. Even if the necessary information concerning maneuverability and backing power of the vessel while carrying various loads is available to the pilot, the time factor is still largely immeasurable because of the inherent differences among vessels in their responses to a full astern command. It also may take an inestimable period of time for the pilot to conclude that an emergency situation exists. Moreover, all these factors are dependent upon the often difficult problem of correctly estimating the range of visibility. This determination is further compounded because the density of the fog could increase or decrease as the vessel proceeds along her course. If carried to it's logical extreme, the half-distance rule would require minute changes in speed whenever any change in visibility occurred. It appears, therefore, .that as a matter of practical usage, the half-distance rule fails to provide for a number of important factors that are essential to its proper application.
The effect of the half-distance rule as a deterrent is also questionable. First, the only time when a question of what constitutes moderate speed arises is after there has been a collision. Until that happens, any vessel is free to proceed at its own determination of moderate speed. Clearly, the judgment of a commercial navigator will be more liberal than that of a court which is able to enjoy the full benefit of hindsight. Second, there does not seem to have been any appreciable increase in the number of collisions occurring in circuits which have chosen to examine the circumstances of each case and thereby ignore the "half-distance” rule.
A lot of these problems, as I mentioned earlier, date back to the 1948 SOLAS Convention. In this convention, all governments in attendance were asked to call to the attention of masters and officers the following opinion of the conference:
"The conference, while recognizing that the recent advances in radar and electronic navigational aids are of great service to shipping, is of the opinion that the possession of any such device in no way relieves the master of a ship from his obligations strictly to observe the requirements laid down in the international regulations for preventing collisions at sea, and in particular, the obligations contained in Articles Fifteen and Sixteen of those regulations.”
Court decisions reflected this viewpoint, and went even further, finding that the failure to use the functioning radar in restricted visibility, or if radar were used, the failure to use it properly, was a fault, in addition to any violations of Rules 15 and 16. When the P&O passenger vessel Oriana collided with the aircraft carrier Kearsarge, the court held that the Oriana’s failure to make a plot to determine the closest point of approach was not careful and prudent navigation. "Under the circumstances,” the court stated "the Oriana might as well have no radar aboard.”5 Under these interpretations, even the proper use of radar by the officer on the watch was not considered to relieve him of the duty of reducing to a moderate speed or relieve the requirements under Rule 16B that engines be stopped on hearing the fog signal of a vessel with an unknown position, even though 16A referred to "existing circumstances and conditions” which circumstances, one would think, included radar-provided information. The vessel whose owner had equipped her with radar thus had one more responsibility, that of using the radar properly. It is no wonder that some ship owners, i.e., the Calmar Steamship Company, actually removed the radar equipment from their vessels. In those days, a ship following proper radar doctrine was expected to obey all the pre-radar Rules of the Road as though they did not have radar at all. This was not a situation that would promote reliance on proper radar navigation, and it explains why some of the senior officers in those days regarded radar with caution. For example, choice of speed changes to improve the closest point of approach was limited by the half distance of visibility rule, and the avoiding action could be brought to a standstill by the hearing of the fog signal of the other ship, since one was immediately under the duty to stop engines and thereafter take all
5231 Fed.Supp. 469 So.D.Cal. 1964 (at page 474.)
way off and feel one’s way past the other vessel.[3]
The regulations drafted by the I960 SOLAS Conference were slightly different, and relaxed the 1948 recommendations. By then, most officers had been to radar school, and ocean-going vessels then sailing were almost all radar-equipped. Radar itself had been improved. Further, the cost of operating ships was increasing rapidly. The expense of keeping gangs of longshoremen waiting while a ship reduced speed because of fog was becoming a needless part of this cost, and the shipowner didn’t like it. After all, didn’t the vessel have radar and weren’t the officers all qualified observers? The industry felt that it needed a change in the rules.
However, the cautious element was still at work. In an article appearing in Proceedings of The Merchant Marine Council in 1961, the author, Paul A. Reyff, expressed the opinion that under recommendation Number Three, radar-obtained information could never constitute an "ascertainment” of position excusing the failure to stop engines on hearing a fog signal forward of the beam. Issue was taken with this statement by Captain F. J. Wylie, R. N., a prominent member of the British delegation to the I960 SOLAS Conference, and the I960 Rules were altered.
The new Rule 16C, taken together with the radar annex to the rules, provided an alternative to navigating under the pre-existing court interpretations of 16A and 16B. These provisions, now familiar to navigators, envisage "early and substantial action” to avoid a "close quarters” situation. The annex to the rules, along with radar commentators of the time, were recommending large alterations of course, in the order of 50 or 60 degrees, combined with drastic alterations of speed. The British Institute of Navigation suggested that in no circumstances would an alteration of less than 30 degrees be considered appropriate. A master of a vessel could even increase his speed as long as the increase was "substantial.”
Radar commentators were by that time acknowledging the fact that in ocean passages, where there is little traffic, full speed could be maintained as long as the radar was working correctly, the engine was on standby, and the officer of the watch was a qualified observer. Must a vessel still stop when she hears the fog signal of another vessel? Rule 16C considers that hearing the fog signal of another vessel is an indication
that close quarters has already been reached, in which case the engines are to be stopped and the vessel "navigated with caution until danger of collision is over.” It must be remembered that the I960 SOLAS Convention still repeats the 1948 warning that "the possession of information obtained from radar does not relieve any vessel of the obligation of conforming strictly with the rules, and in particular, the obligations contained in Rules 15 and 16.” When I was sailing on the Queen Mary and Queen Elizabeth, the range of the whistle was about ten miles. There are plenty of vessels at sea today much bigger than those two vessels, and their sound signals are probably as powerful. Is ten miles to be considered a close quarters situation? And, if so, should one reduce speed and thereby rob the vessel of its maneuverability just at the point when it is needed most? What about the new supertankers? At full speed these vessels are barely maneuverable anyway. This, of course, is an area of value judgment, and the navigator who gets out of a close quarter situation by maintaining full speed does so at his own risk.
When I took my master’s certificate, the oral examiner, having finished with me, gave me a white slip of paper that indicated that I had passed. Just as I left the room, the examiner stopped me. He made me turn around to face him, presumably so that the full effect of his warning would be reinforced by an eyeball confrontation. He warned me that if I was ever caught speeding in fog, my Master Mariner’s certificate would be taken away from me forever. This, I might say, was in 1966, and by the end of that year I was navigator aboard the Queen Elizabeth crossing the Atlantic on F track in fog. The only time we reduced below 30 knots was to pick up the pilot at Sandy Hook. Had we reduced, as my examiner demanded, we would have been out of business years ago.
Every navigator who has ever been on a scheduled run has faced this problem, and I think it is as yet unresolved. Rule 16C states that the engine shall be stopped if close quarters can not be avoided "so far as the circumstances of the case admit.” If, by stopping the engines, one allows a slower vessel to collide with one, then the exculpatory clause "so far as the circumstances of the case admit” will not excuse a navigator because he followed the rules and stopped. In a recent case, a naval vessel that did stop and thus allowed herself to come into the range of an approaching vessel, thus getting involved in a collision, was found 60 per cent at fault for permitting herself to be in a position that she was at the time of the collision.[4] So, if you navigate within the letter of the law, and you don’t use good sense, the letter of the law will not protect
7£7.5. v. Motor Ship Hoyanger, 265 Fcd.Supp. 730 (W.D.Wash. 1967).
Radar Collisions and the Courts 83
you. As the court stated in the Flying A Washington:
"It is apparent that the drafters of this rule 16(B) had no desire to take the command, in every sense, of the vessel out of the hands of the navigator. There can appear to be no other reason for the insertion of the exception to the general rule 'so far as the circumstances of the case admit’.”8
What constitutes "ascertainment of the position of the other vessel?” Ascertainment, according to one prominent commentator, would seem to involve knowledge of at least the direction of the other vessel’s movement, if any, or, if stopped, the direction of heading and therefore the probable initial movement. Just how Captain Wylie, from whom this recommendation comes, can tell the aspect of the vessel that is laying dead in the water is not explained. However, it would seem that anything less than a complete plot will not satisfy the court. A lot of navigators simply put the range and bearing cursor over the target and wander off for a couple of minutes to see if it will go away. When the screen is cluttered, it is sometimes impractical to construct a series of plots for each of the targets as they appear; a wax crayon dot with the time in minutes against it is quite often the only treatment that an approaching target receives. With the new true-motion radar, this is perhaps all that is needed, since vector analysis is done internally and the resulting relative motion in the form of an arrow is quite sufficient to a trained observer. Whether this is enough of a plot to satisfy a court remains to be seen.
As pointed out above, the cases under the 1948 Rules made a fault of the failure to plot, even though the Rules themselves did not require it. The I960 Rules did not require plotting, although, as already discussed, they did provide that certain action could be taken based on proper plotting. Whether or not plotting will still continue to be a mandatory court-imposed requirement in all cases is not clear, for the I960 Rules set up two alternative courses of conduct. Rule 16C, which is expressly made discretionary, sets up a guide complete all the way from the commencing of the engines and/or helm maneuvers to avoid close quarters situations right through to the point where the vessels are passed and clear, and includes situations where, because of the action of the other vessel or inadequate response by the subject vessel, they come into close quarters. In other words, an early alteration which is substantial must be made; then in the close quarters situation, stop engines and, if the circumstances admit, navigate with caution until the danger of collision is past.
*1962 AMC 2146 (Coast Guard License Hearing)
Did the drafters of the I960 Rules intend to alter the previous case law which required plotting? In a recent survey of the radar annex of Rule 16, two courses of action were considered to be available under the rules. One was to plot properly, and still maintain maneuvering speed to avoid collision; the alternative suggested for untrained radar observers was to proceed instead under the old fog rules and not be faulted for failure to plot.
As to maintaining a full speed in open waters, radar has its limitations here, too. North Atlantic navigators, passing through the ice fields that seasonally push south from Newfoundland, have noted that under certain conditions, icebergs that are clearly substantial in size and that should present large echos failed to show up on radar screens. There has never been a complete explanation offered for this phenomenon, but some radar experts feel that it can be explained by wind direction relative to the iceberg and the observing vessel. When the wind is blowing from the direction of the iceberg towards the ship, a cone of cold air collects on the lee side of the iceberg. Owing to the temperature difference between the cone of cold air and the surrounding mild autumn air (the Atlantic icebergs reach Atlantic navigation routes roughly six months after breaking away from the glaciers that cause them), a different refractive index in the atmosphere causes the centimetric radar pulses to be deflected in all directions, so that a ship that is directly downwind of an iceberg sees no returning signal. This is important, not only when a vessel has an iceberg in its path, but also when an iceberg is blanked out from this vessel’s own radar screen, and another vessel is approaching from an opposite direction. The second vessel, which has both the observer vessel and the iceberg on her radar, has to make what appears to the other vessel to be an unpredictable and irrational alteration to avoid the iceberg and the approaching vessel.
Radar responders perched atop the iceberg do not provide an answer. Recently, Canadian Coast Guard researchers have been experimenting with this problem and have been landing on the icebergs and placing radar-reflecting materials on the surface of the bergs. It was thought at first that spraying metallic paint on the icebergs would give a better return signal, but it was found that icebergs roll over continually while melting and present a different surface all the time. Mooring a radar responder close to the iceberg on a buoy in such a way that it would be attached to the iceberg in whatever position the iceberg assumed sounds great; but what happens to them once the iceberg has melted? Since the New York passenger trade has declined in the last ten years, there are less and less fast passenger ships up around Cape Pace
during this time of the year, and therefore, the chance of another Titanic situation is declining also. Would it be worth the Coast Guard’s while to chase these iceberg markers all over the North Atlantic once the iceberg had melted? Would radar responders of the type used in IFF equipment be of use to surface navigators? Technologically, it is quite possible to make transponders that can, on request, transmit printed information on another vessel’s screen. A navigator could, by transmitting an interrogatory signal, have the course and speed of any approaching vessel displayed on his radar screen for a short period next to the target, and thus avoid having to take time out to plot. An alternative to this would be the computer type radar already in existence in military aircraft. The radars used to solve the interception problem presented to a fighter pilot who wants to arrive at an exact point behind an enemy aircraft, so that his heat detecting missiles can "acquire” the target by its exhaust, might be the answer. For many years, Navy pilots have had access to a radar system that computes the exact time when the fighter has to execute a left or right bank that will roll out nearly one mile astern of the target aircraft. A radar system like this could easily be modified to do the less sophisticated job of avoiding slow-moving traffic and, since the already existing radar is robust enough to withstand vibrations of a transonic aircraft, it is obviously reliable enough for day-to-day use at sea.
The trouble with all of these recommendations, even if accepted, is that Congress has little control over the bulk of the American merchant fleet. Nearly 75 percent of all American-owned merchant ships are registered under "flags of convenience”, and are, therefore, out of the reach of a lot of federal legislation. All of this is extremely frustrating, particularly when one considers that radar is really being used at only half of its potential capacity. At present, radar presents the navigator with a whole lot of out of date information about the approaching vessel’s immediate past history. It could, of course, tell a whole lot more if coupled with a transponder system. With a bridge-to-bridge communication system, it could tell the navigator not only what the vessel has done but what it is going to do.
However, even if radar navigation was made much easier, the dichotomy presented by Rule 16 would still exist. In 1963, three years after the SOLAS Convention and the new Rules, the Court in US. v. M. V. Wuerttem- berg held that after the navigator on board a vessel heard the fog signal of a minesweeper, it was his statutory duty immediately to stop engines, and failure to do
so constituted statutory fault, casting upon the vessel the burden of proving that this fault could not have contributed to the collision with the minesweeper.[5] The Court held that this burden was not sustained.
The burden referred to is known in admiralty law as the Pennsylvania Rule, named after the case in which it was laid down by the Supreme Court in 1874. This rule causes a drastic and very unusual presumption to arise when it is shown that a vessel has been guilty of a statutory fault before a collision. Where this presumption arises, the vessel thus cast in fault must prove, to escape liability, not only that the fault shown probably did not cause, but also that it could not have caused the collision. This rule makes especially important the strictest compliance with the Rules of the Road. Although it is not insuperable, it is perhaps the most difficult burden of proof to overcome. In a Coast Guard hearing in which the masters of two vessels had their licenses suspended, this rule was invoked. In the hearing on the licenses of Harry H. Parnell, master of the SS Oregon Standard and Morris E. English, master of the SS Arizona Standard, the collision between the two tankers in San Francisco Bay in January, 1971, was investigated. The Court here set a new standard as to radar procedure. On page 2214 the Court states:
"A vessel equipped with radar is under a duty to use it intelligently and fully. In the present situation, the ship owner had thoughtfully placed two excellent radar sets of differing characteristics on the bridge of each of his ships, a Decca and a Raytheon. Intelligent use of this equipment required constant guard on at least one set, and dictated that the two sets be used, except for occasional target comparisons, on different ranges in miles. Such intelligent use would seem to require a specially assigned watch officer in dense fog, in San Francisco Bay, so that the regular watch officer is free to relay and observe orders to the helm and engines, making log entries, audit fog signals, and maintain VHF vigil. . . .
A master or pilot is not only obligated to use available navigation aids, but he is required to use them intelligently and adequately. The master or pilot so failing is heavily burdened to prove that such fault did not contribute to the collision.”[6] (cites omitted).
The Court in this very recent case has, I think, set a rather dangerous precedent. Failure to use the radar intelligently is considered to be a statutory fault, and thus invokes the Pennsylvania Rule. The Court says such intelligent use would seem to require a specially
10
Radar Collisions and the Courts 85
assigned watch officer in dense fog, something that the International Rules of the Road do not require. The Court, then, which has the benefit of hindsight, has set up what it considers to be reasonable or intelligent use of radar, and failure to comply with this standard results in the operation of the Pennsylvania Rule. As a result, both masters had their licenses suspended, and may never be employed by a good shipping company again. Granted, something obviously must have gone wrong. But would an additional officer up on the bridge have made the difference? It appears from reading the opinion that the Court thought it might be a good idea to have a second man on radar watch. It then went on to put upon the masters of both vessels the burden of showing that the lack of the extra watch officer could not have contributed to the subsequent collision.
A Coast Guard hearing is not exactly a court, it is more of a tribunal, and their power is restricted to actions taken against navigators’ licenses. No civil effects flowed from this decision, i.e., the vessel owners’ property rights were not decided, and could not be decided, by this tribunal. This decision therefore carries less weight than one coming from a Federal District Court sitting in Admiralty, and it is unlikely that the "two men on harbor watch” rule apparently enunciated here will become the law of admiralty. It is an illustration, though, of what may happen to a watchkeeping officer if he is involved in a collision.
As a practical matter, what can a navigator do to protect his license and career in case of a radar collision? From reviewing these cases it would appear that in closed waters, such as a harbor, one should maneuver as if the vessel carried no radar at all, that is with the extreme caution that our grandfathers used, and that sent them to early graves with ulcers. Whilst doing this, plot everything on the screen, preferably on a H.O. 2665.10 plotting sheet so that there is a record. Do it right. If this sounds cynical, remember that, if you do collide, someone other than a fellow navigator is going to judge you, someone who has probably never seen a radar. Some judges think that rather than getting into a close-quarters situation, one should stop. They think that a vessel stops like an automobile, and if it is explained to them that vessels in fact have varying stopping distances, they respond with the unanswerable question "why didn’t you stay in your berth until the fog cleared?” There is no answer to this one, unless you want to try to impress upon him that it is the seaman’s art to try to beat the weather, and that’s why a seaman is different from someone who stays at home. Even if you are successful in this, and the judge is impressed with the fact that there are inherent risks in going to sea, he still is under an obligation to place
the blame. After all, that is what he is there for. There is such a thing in admiralty as "inscrutable fault,” which means that no blame attaches to either side since none can be found. Judges don’t like to resort to that; it means that their investigation methods have failed, and its use is usually confined to the total disappearance of a ship where there are no survivors. It is therefore not an argument to be relied upon.
In 1957, two prominent admiralty lawyers produced a text on admiralty that was so authoritative that it achieved instant canonization. Professors Grant Gilmore and Charles L. Black, both of Yale Law School, were writing their text at a time when radar had been in existence some 20 years, and in general commercial use for ten. The problem then, as they saw it, revolved around the fact that even if the observing ship had radar, there was no way of knowing that the other vessel had it, too. There was no way, therefore, to predict what action the approaching vessel was going to take, as one can when vessels are in sight of one another, and the resulting confusion brought radar navigation within "the province of the Theory of Games,” to use their own language. The situation is the same today, judging by the number of collisions, yet the technology to prevent these collisions has been available for a decade or more. An oil spill of the proportion of the Toney Canyon incident might make Congress act, making all vessels trading within U. S. waters carry certain minimum radar equipment, regardless of their nationality. This is already being done with foreign passenger ships’ firefighting equipment, so why not radar? Are we going to have to wait until a collision of tragic proportions occurs before proper radar avoidance systems are required?
The answer is probably yes.
After sailing as a navigator in the Cunard Line, and on obtaining a Master’s Certificate in 1966, Mr. Ford served on both the Queen Mary and Queen Elizabeth as navigator. He received a Juris Doctor degree from Southern Methodist University in 1970, and is practicing Admiralty Law in New Orleans. A member of the Louisiana Bar Association and the American Bar Association, he served in the Royal Naval Reserve from 1962 to 1967.
1971 A.M.C. 2212.
[1]Matthew Luckenbach, 215 Fed. Supp. 667 S.D.N.Y. 1963, affirmed 324 F.2d
563 (2nd Cir. 1963).
[3]One prc-1965 case did hold that there could be an ascertainment of the other vessel’s position by radar under 16B: Weyerhaeuser Steamship Co. v.
United States, 174 Fcd.Supp. 663 (N.D.Cal. 1959), and other cases have allowed ascertainment under 16B by means other than visual. The question as to whether radar could ascertain position sufficiently to satisfy 16B was expressly left open and some other cases, both in U. S. Courts and the House of Lords.
[5]219 Fed.Supp. 211, affirmed in part, reversed in part, 330 F.2d 498 (4th
Cir. 1964).