New Zealand Company of Master Mariners

Tasman Pioneer judgment may set liability precedent

by Robert Gay – Lloyds List Wednesday 3 June 2009

ARTICLE IV rule 2(a) of the Hague-Visby Rules protects a carrier in respect of loss or damage arising or resulting from “act, neglect or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship”.

Does this mean that the carrier is protected in respect of the consequences of any action (however extreme it may be) which may be taken by the master, to the extent that it affects the navigation or management of the vessel?

There are already two lines of authority in English law that indicate that the protection given to the carrier is not so complete. The Tasman Pioneer may add a third line.

Tasman Pioneer was making a voyage from Yokohama in Japan to Pusan in South Korea by way of the Japan Inland Sea. In order to enter the Inland Sea, the normal route would be outside (to the west) of a small island off the southwest corner of the central Japanese island of Shikoku. However, Tasman Pioneer was late on its voyage, and the master wanted to make up time to reach the channel out of the Japan Inland Sea at the correct state of the tide. He attempted a short cut, passing inside the small island, in poor weather conditions. His vessel grounded and was holed.

The master did not report the grounding or the damage to the vessel for some time. In the meantime, he took the vessel at full speed to a point where he was roughly back in a position where he would have been if he had taken the normal course. He made the purpose of his actions clear, by also instructing his officer to erase the course actually sailed from the ship’s chart and substitute a false course, and instructing the crew to lie to investigators with a view to persuading them the ship had been on the normal course and had hit an unidentified floating object.

The parties who were suing Tasman Orient Line were the owners/insurers of the deck cargo on the vessel. The New Zealand High Court had held that this cargo had been damaged as a result of  
the master’s actions following the vessel’s grounding, while he was proceeding for  
a distance of 22 miles at a speed of about 15 knots into a northwest gale of some  
35 knots, with a swell of up to 2 m. If the master had reported the grounding to the Japanese Coastguard promptly, then salvage assistance with powerful pumps would have been available immediately, and he would have been instructed if necessary to beach the vessel in a nearby sheltered bay.

It appears that the deck cargo was carried on the terms of the Hague-Visby Rules, and therefore the issue before the New Zealand Court of Appeal was whether Tasman Orient Line was protected under the rules.

The likely response of an early 20th-century English judge would be that the master’s conduct in taking the “short cut”, even before the grounding, amounted to a “deviation”.

In terms of the Hague-Visby Rules, the carrier loses the protection of the exceptions in Article IV rule 2 when once there has been a “deviation”. However, (perhaps simply because the line of authority in terms of “deviation” is out of fashion) the New Zealand Court of Appeal accepted that Tasman Pioneer was protected by the rules in respect of the master’s conduct before the grounding, and indeed the court did not apply the concept of “deviation” at all.

A second relevant line of authority is the decision of the English House of Lords in The Hill Harmony [2001] 1 Lloyd’s Rep 147. In this case, the House of Lords held, in effect, that the protection of the exception for “error in navigation” might only apply to the extent that the decision made by a master of a vessel was a decision such as might have been taken by a reasonable master in the interest of the vessel, crew and cargo. However, possibly this line of authority may only apply to decisions taken by a master deliberately and without any pressure of circumstances, and so it might not apply to the conduct of the master of Tasman Pioneer after the grounding.

Nevertheless, the New Zealand Court of Appeal held that Tasman Orient Line was not protected. Two of the three judges held that the words “navigation” and “management” are to be understood as meaning activities carried on with a view to prosecuting the vessel’s intended voyage or (once a casualty has occurred) directed towards the safety of the vessel, crew and cargo. Thus, although the master of Tasman Pioneer after the grounding was navigating, in the sense of giving instructions as to the course and speed of his vessel, and also was “managing” the vessel, for example by giving instructions to pump out the water that was pouring into the holed holds, he would not be considered as engaged in “navigation” because his only aim was to try to escape blame for the casualty.

It is not clear whether this New Zealand judgment may be followed by the English courts.

On the one hand, the English courts are in general inclined to give weight to decisions from the Australian and New Zealand courts. In this case, the reasoning of the New Zealand judges pays close attention to the relevant English authorities, and certainly it appears that there is no binding English authority contrary to the decision of the New Zealand Court of Appeal.

On the other hand, the approach of this judgment differs from the general approach that the English courts have adopted towards the Hague and Hague-Visby Rules. The New Zealand court in this case pays more attention to the “purpose” of the rules as an international treaty, and less attention to the meaning of the individual words used against the background in the 1920s when the text of the Hague Rules was agreed.

However, it certainly is possible that the Tasman Pioneer would also be followed by an English court.

If the Tasman Pioneer is followed, then it will probably be considered that so long as the master of a vessel has as one aim the prosecution of his voyage, or the safety of the ship, crew and cargo, then the carrier will be protected by the exception for “error in navigation”. As the exception extends not only to negligence but to “default in navigation”, it will probably be considered to protect the carrier if the master is pursuing his proper aims but also is influenced by improper considerations such as a wish to escape blame for himself. It may be only if the master is completely disregarding the safety of the cargo and influenced only by an improper purpose that the carrier may lose the protection of Article IV rule 2(a).

1. Tasman Orient Line CV v New Zealand China Clays Ltd & Others, New Zealand Court of Appeal [2009] NZCA 135.

Robert Gay is a solicitor with HillDickinson .

A recent New Zealand Court of Appeal decision appears to cast doubt over the Master’s authority on board New Zealand ships.

Quoting a newspaper report, the written decision said that the officer of the watch was in “charge” of the ship because he “overrode the autopilot and undertook manual steering” (a strange deduction). It further says that when the control of the ship passed from the master to the mate, the mate became the master.  

Does this mean that an officer of the watch inherits all the master’s responsibilities and does it mean that a helmsman is in “charge” of a ship when he is on the wheel?   

Incident at San Francisco 

At 8:30 a.m. on Wednesday 7 November 2007, Capt. John J. Cota, the bar pilot in charge of navigating the container ship Cosco Busan, radioed the Coast Guard vessel traffic service on Yerba Buena Island with an urgent message.

“I touched the delta tower,” he told the traffic service, which monitors ship movements in and out of the bay. It may have been the understatement of the year.

Cota was reporting that the 902-foot-long container ship, displacing 65,131 tons, had run into the wooden fender surrounding one of the towers that hold up the Bay Bridge. The ship was traveling at about 11 knots, senior Coast Guard officials said.

The “touch” caused a tear in the side of the ship – a gash 160 feet long and 4 feet deep – rupturing the fuel tanks. Approximately 58,000 gallons of diesel fuel spilled into the bay – the biggest oil spill there in 20 years. It was a historic event, too – the first time a ship had ever hit the Bay Bridge since work began on the suspension towers almost 74 years ago.

“The cause of this accident,” said Adm. Thad Allen, commandant of the U.S. Coast Guard, “was human error.”

Allen was careful not to fix blame on any individual.

Cota’s lawyer, John Meadows, told the Associated Press that his client thought the impact was minor. “He told me that you could hardly feel anything on the ship,” the lawyer said.

This version of events, however, was disputed by Coast Guard officers. They said a man of Cota’s experience should have known that a ship traveling at that speed would do a lot of damage.

Rear Adm. Craig Bone, the senior Coast Guard commander on San Francisco Bay, compared a moving ship to an elephant. “An elephant doesn’t touch you,” he said. “An elephant hits you.”

Neither the Coast Guard nor the National Transportation Safety Board has released a transcript of the incident, but using information from ship pilots, captains, mariners who monitored the conversations between the ship and the Coast Guard vessel traffic service (VTS), and electronic tracks of the ship’s course, it is possible to recreate the chain of events.

The Cosco Busan also was equipped with radar, a Global Positioning System, radios and an automatic identification system, a device that transmits the ship’s position automatically every few seconds. The identification system made it possible to track and record the Cosco Busan’s movements.

The track of the ship shows the Cosco Busan making a wide turn to the southwest, then swinging on a sharp right turn that took it into the bridge tower.

It was chartered to Hanjin Shipping of Seoul. The vessel had just changed ownership, and the 21 officers and crew were making their first voyage with the ship.

The officers and crew were all Chinese. Though the navigating officers and the helmsmen were required to speak English, it is not clear how fluent they were.

Their fluency is an issue, because the accident’s cause may include what mariners call “bridge resource management,” or how the pilots and crew interact.

Cota, the bar pilot, came aboard about an hour before sailing. He met the captain of the ship and the officer of the watch. He probably was introduced to the helmsman, who would actually steer the ship under his orders.

The four men on the bridge were the key characters in what was to follow.

Cota, 59, is a graduate of the California Maritime Academy in Vallejo and holds a license to command any ship in any waters. Additionally, he holds an endorsement on his license as a pilot on San Francisco Bay and its approaches. But the ultimate responsibility of the ship is borne by the master, or captain, whose name has not been released. The pilot gives advice to the captain on navigating the ship. It is rare to disregard this advice, and captains seldom do.

When the ship departed, the weather was foggy, visibility less than a mile. Cota checked with the vessel traffic service, using VHF radio channel 14. All commercial vessels monitor this channel, and all are required to check in with the vessel traffic service.

According to those familiar with the transmissions, Cota told the Coast Guard traffic service that the fog had lifted a bit, and he was prepared to get under way for sea. His intention, he said, was to go through the Delta-Echo span on the San Francisco side of the Bay Bridge. That passage is between the two towers closest to Yerba Buena Island.

The Cosco Busan was accompanied by a 78-foot tug named Revolution. The tug did not appear to have played any role in what followed.

First, Cota had to get his ship around the dredge Njord, which was anchored in the estuary.

Once in the bay, the approach to the Delta-Echo span is fairly straightforward in clear weather, according to several pilots.

But Cota was in dense fog. He had to rely on his electronic devices and the bridge team.

At some point, according to the automatic identification system, the ship steered left, away from the course that would take it to the channel between the two bridge towers.

It is not clear why this happened. Sometimes, the seaman at the helm will misunderstand the bar pilot’s orders, said Capt. John Konrad, a master mariner who runs a maritime Web site called gCaptain.com.

But, he said, “the pilot is supposed to be checking the helmsman, the mate is supposed to be checking as well, and the master is there observing it all.”

Capt. John Keever, commanding officer of the California Maritime Academy’s training ship Golden Bear, said the bar pilot “is supposed to make sure they understand what he wants them to do. A lot of times they (the man at the helm or officers) don’t do what they are told.”

Coming out of the estuary, Keever said, “it is critical that (the ship) makes that right turn.” Instead, the ship went left. “It had to be a mistake that they went left,” he said.

Not long afterward, the vessel traffic service called the Cosco Busan to tell Cota that he was on the wrong course. The ship was heading parallel to the Bay Bridge, instead of on a course that would take it under the bridge.

Cota at first disputed the vessel traffic service message, saying, “That’s not what I see here.” After hitting the bridge, Cota proceeded to an anchorage off Treasure Island and stopped. He then reported the accident in more detail and said the ship was leaking oil.

And the Cosco Busan Inquiry report cites communication breakdown

Rajesh Joshi  Lloyds List  Friday 20 February 2009

AN ineffective master, a “cognitively degraded” pilot and poor management all contributed to the Cosco Busan hitting a San Francisco bridge, causing over $70m worth of damage, a new report has concluded.

But it was the lack of communication between all involved that ultimately led the US National Transportation Safety Board to recommend that the International Maritime Organization include a segment on “cultural and language differences and their possible influence on mariner performance in its bridge resource management curricula”.

The NTSB report on the Cosco Busan casualty may have included 30 conclusions spreading the blame equally among all parties involved, but it was “cultural differences” that prevented the Cosco Busan’s master from asserting his authority over the pilot. The report also found fault with the quality of communications between the two.

The newness of the crew to the 5,447 teu, 2001-built ship, and to the ship’s operating company Fleet Management, and the crew’s lack of proficiency with English, were also cited as factors.

Overall, the report cites a pilot who was “cognitively degraded”, an “ineffective master”, an operating company that did not properly train its crew, and the US Coast Guard’s “inadequate medical oversight” of the pilot as contributors to the incident.

Other recommendations include a finding that, in its radio communications, the Vessel Traffic Service needs to identify the vessel and not only the pilot; and that the US Coast Guard needs to provide guidance to VTS personnel that “defines expectations for when their authority to direct or control vessel movement should be exercised”.

The ship hit the San Francisco-Oakland Bay Bridge in heavy fog on the morning of November 7, 2007, after leaving the Port of Oakland for South Korea.

According to the NTSB, the damage ran to $70m for the ecological clean-up, $2m for the ship, and $1.5m for the bridge. A 26 mile patch of shoreline was smeared with the oil spilt, and more than 2,500 birds of 50 species were said to have died. The San Francisco Bay pilot, John Cota, while trying to needle the ship through the Delta and Echo support towers, directed that the ship head straight for the Delta tower, whose base it struck. The fendering system at the base worked as intended, protecting the pier structure and limiting damage to the Cosco Busan to the area above the waterline.

The NTSB report agreed that the pilot’s order for hard port rudder at the time of the collision was appropriate, and possibly limited the damage to the vessel and the fendering system.

However, the pilot’s medical history came in for harsh scrutiny. Although the pilot had been diagnosed with sleep apnea, there was no evidence that he was sleep-deprived, the NTSB said.

However, it added: “The pilot was most likely taking a number of medications, the types and dosages of which would be expected to degrade cognitive performance, and these effects were present on the day of the accident.

“The pilot, at the time of the allision, experienced reduced cognitive function that affected his ability to interpret data and that degraded his ability to safely pilot the ship under the prevailing conditions.”

The report said the pilot and the master “failed to engage in a comprehensive master-pilot information exchange before the ship departed the dock”, and failed to establish and maintain effective communication during the voyage.

The interactions between the pilot and the master “were likely influenced by a disparity in experience in navigating the San Francisco Bay and by cultural differences that made the master reluctant to assert authority over the pilot”.

Nonetheless, the master also “did not implement several procedures found in the company safety management system related to safe vessel operations, which placed the vessel, the crew, and the environment at risk”.

The report found fault with Fleet Management for providing the SMS manual only in English and not in the ship’s “working language”, which limited the crew’s ability to review and follow the SMS; and for not “successfully instilling in the master and crew the importance of following all SMS procedures.

“Because the Cosco Busan was crewed with mariners who were new to the vessel, who had not worked together previously, who for the most part were new to the company, and who were insufficiently trained in vessel operations and company safety procedures, Fleet Management placed the vessel and crew at risk when the vessel got under way in South Korea,” the report concluded.

Despite finding fault with the pilot for insufficient disclosure of his medical condition, the NTSB unambiguously named the US Coast Guard as the final repository of blame.

“The USCG’s system of medical oversight of mariners continues to be deficient in that it lacks a requirement for mariners to report changes in their medical status between medical evaluations.

“The USCG, which had the ultimate responsibility for determining the pilot’s medical qualification for retaining his merchant mariner’s license, should not have allowed the pilot to continue his duties because the pilot was not medically fit.”

The report recommends to the USCG: “Require mariners to report, in a timely manner, any substantive changes in their medical status or medication use that occur between required medical evaluations.

“Establish a mechanism through which representatives of pilot oversight organisations collect and regularly communicate pilot performance data and information regarding pilot oversight and best practices.”

And finally, to the American Pilots’ Association: “Inform your members of the circumstances of this accident, remind them that a pilot card is only a supplement to a verbal master-pilot exchange, and encourage your pilots to include vessel masters and/or the officer in charge of the navigational watch in all discussions and decisions regarding vessel navigation in pilotage waters.” 

From Lloyds List Tuesday 20 January 2009

by Rear Admiral John Lang, former Chief Inspector of Marine Accidents 
AMID the relentlessly gloomy news of recent weeks, the one item that has received widespread acclaim around the world is the supreme display of airmanship by US Airways pilot Chesley Suttenberger, who landed his Airbus in the Hudson River and saved the lives of all 155 souls on board.

By comparison, we in the maritime world still have a long way to go in the wake of any accident. There are still many who possess an obsession with apportioning blame and, even worse, to criminalising those judged responsible. There is still an overwhelming urge to focus on the consequences of an accident — an oil soaked seagull still provokes more anger than a dead sailor.

And we are still not good at looking at the underlying causes why things go wrong and then learning the real, rather than the convenient, factors.

Last week, the Paris-based French Maritime Accident Bureau, BEA-Mer, very thoughtfully sent me a copy of its investigation report into the collision between the France-registered very large crude carrier Samco Europe and the Panamanian container ship MSC Prestige, which occurred at the western end of the Gulf of Aden in December 2007.

By good fortune, the collision resulted in nothing more than two badly damaged bows. There was no pollution and no injury. Relatively few people would even be aware it happened, but the lessons to come out of it are of significant importance to the entire maritime community. I hope I’m proved wrong, but I fear very few people will pay any attention to the invaluable lessons that lie in this near catastrophic collision.

The circumstances of the accident are reasonably straight forward. The two ships were approaching one another in that notoriously challenging situation known as “nearly end on,” a few miles to the east of the Bab el Mandep Strait traffic separation zone.

Both ships were correctly manned by competent masters and crews. There was no suggestion of fatigue. The two officers of the watch had everything they could wish for by way of aids to navigation. Both ships saw each other in good time. The officers on watch communicated by VHF and “agreed” to a passing red to red.

And yet they collided. Why? The accident report rightly identifies a number if shortcomings, especially with the implementation of Rules 16 and 17, but the main lessons only emerge by careful analysis of what happened.

Each OOW was dealing with the same sources of information; radar, AIS, visual and VHF. Each interpreted the information presented but came to different conclusions as to what the “other” ship was doing.

Despite all the training in the world, this does happen from time to time. VHF communication was established but one OOW stated an intention to do something that was not understood by the other. The two ships were at the less than three miles apart and closing at a combined speed of nearly 40 knots.

What does an uncertain OOW do in such circumstances? Argue on VHF, call the master, or take some action and hope for the best? Anyone reading the report will come to their own conclusions about what went wrong and, no doubt, advance an opinion about what should have been done, but they will, I suspect, miss the point. Anyone in such a situation will face what can best be described as a state of stress when the mind starts to converge on a single issue. Rational thinking goes out of the window and even the most normal activity such as calling the master is forgotten.

It is not for me to suggest a text book solution, but what we must all do is learn the lessons from these accidents to make the sea a safer place. Let us not shy away from independent accident investigation, but learn all we can from the subsequent reports. The real lessons don’t come from any recommendations made, but by putting ourselves in the position of those involved at the time and thinking through the actions we would take.

Training takes many forms from talking about it at one level to linked simulation at the other. Far better have an accident in the simulator than on the high seas. We also need to work much harder at developing situation awareness afloat. Above all we must rid ourselves of the blame culture and learn from the mistakes with widely published accident reports.