Are COLREGS still fit for purpose?

Harry Hirst, Managing Partner and Master Mariner, Singapore for Ince & Incisive Law LLC, has written for Maritime Executive on whether COLREGS re still fit for purpose. He noted that many believed that in the not so distant future, the fundamental changes in the way in which ships would be operated would render the current COLREGS unworkable. This primarily has been a reference to autonomous ships, but it was also the case that the increasing use of automation and reducing numbers of crew was likely to result in the bridges of crewed ships in the future being unmanned for some, if not all, of the time, wrote Hirst.

It was generally understood that a fully autonomous ship (one with no crew) or any vessel with an unmanned bridge or cockpit (one with no watch-keeper) could not comply with the COLREGS. That understanding originates with Rule 5, which requires every vessel to “at all times maintain a proper look-out by sight as well as by hearing…”. Seeing and hearing in this context had always been understood and interpreted as references to the human senses.

However, Hirst noted that this and the other Rules were not directed at humans but at vessels. So for example, the requirement was for every vessel to maintain a proper look-out, to proceed at a safe speed, and to determine if there was a risk of collision; and for the action taken to avoid collision to be large enough to be readily apparent to another vessel observing visually or by radar.

Similarly, in restricted visibility the requirement was for every vessel which hears “apparently forward of her beam the fog signal of another vessel….” to reduce her speed.

So, said Hirst, the actions of “seeing” and “hearing” did not have to be limited to their human functions; they could be interpreted more widely so as to include the electronic “eye” (camera) and “ear” (microphone) as well as the human eye and ear. Hirst wrote that, if this wider interpretation were to be adopted, then a fully autonomous ship, or a vessel with an unmanned bridge, which was properly equipped with cameras and microphones should be capable of complying with Rule 5. “Indeed, such a vessel may in fact be better equipped for doing so, when one considers, for example, the ability of infra-red and thermal imaging cameras to “see” in the dark and microphones to determine the direction from which a sound is emanating”, wrote Hirst.

He wrote that care would be needed to limit the scope of the equipment which could qualify as an electronic “eye.” It could not, for example, include radar, as the Rule for vessels navigating in or near an area of restricted visibility recognized that a vessel which was not in sight of another vessel may nevertheless detect the presence of that other vessel by radar. A vessel fitted with a thermal imaging camera might similarly be able to detect the presence of another vessel in restricted visibility in circumstances where the human eye could not.

Hirst believed that “it should be possible to program the electronic eyes and master computer on an autonomous ship to know when the prevailing visibility calls for the application of Rule 19”.

However, there remained the issue of seamanship: How would an autonomous ship, or a vessel with an unmanned bridge, know what “precaution…may be required by the ordinary practice of seamen?” The answer, said Hirst, would be provided by artificial intelligence (AI). The technology might already exist to programme a vessel computer to know what the practice of good seamanship requires.

Hirst said that he was not therefore convinced that the COLREGS necessarily required any amendments to accommodate the fundamental changes in the way that ships would be operated in the future, save perhaps, to include a definition in Rule 3 extending the meaning of the words “by sight,” “visually,” “by hearing,” and “hears.”

Hirst continued to say that the suggestion that new rules needed to be written now to take into account both manned and unmanned ships begged the question: why?

“The owners of manned ships have to ensure their vessels comply with the COLREGS whatever they might think about these Rules, which have been in operation now for over 40 years. Why should it be any different for the owner of an unmanned ship?” he asked.

Hirst noted that these Rules, while worded differently to their predecessors, prescribed the same basic collision avoidance manoeuvres; for example, when two power-driven vessels were meeting head-on, for both to alter their courses to starboard.

The current Rules had evolved into their present arrangement and wordings through a series of incremental changes and amendments over the years, and as result their entry into force during the 1970’s was seamless and largely without incident. Hirst asserted that implementing a complete set of new rules, especially new manoeuvring rules, or introducing wide ranging amendments to the current Rules, would be a potential recipe for disaster. “It would also be a time consuming and  costly endeavour, being one that will require international agreement and re-training on a global basis. I believe we should proceed cautiously therefore before we seek to totally revise the “rules of the road” for the sea”, wrote Hirst.

Collisions at sea were still happening today, but while the number of collisions each year was not noticeably decreasing, the world fleet capacity had increased significantly since the COLREGS came into force. When expressed as a percentage of the world fleet therefore, the number of collisions had been decreasing over time..

That said, Hirst emphasized that the number of collisions was still unacceptably high, and it was still very much the case that nearly all collisions were the result of human error and in particular, a failure to properly implement – or comply with – the Rules. But this did not constitute a reason to change the Rules, said Hirst. “The Rules are not the cause of collisions; the cause of collisions is the failure by mariners to properly comply with the Rules.”

He said that if, as some had suggested, the many technologies designed to improve the avoidance of collisions since the rules came into force were being ignored, then the problem was with the mariners, not with the regulators ashore or with any disconnect between the two. “No amount of regulation will force a mariner to use a particular piece of equipment or technology, just as no amount of regulation will force a mariner to properly comply with the Rules.”

Hirst wrote that the cause of collisions was not the COLREGS, but how mariners interpreted and (mis-) applied the Rules. “Too many mariners today, I feel, lack a proper understanding of the Rules and how they are to be applied”, wrote Hirst.

The causes of most all collisions could be broken down into two broad categories: –

  1. failure to maintain a proper look-out; and
  2. failure to take the appropriate avoiding action.

Proper look-out

With a proper look-out the mariner will make “a full appraisal of the situation and of the risk of collision.” Many collisions occur because the mariner fails to do so, and in particular, to properly appraise the risk of collision. This is the case, notwithstanding the technological advances that have occurred during the last 40 years and notably the development of AIS and ARPA, which make the job of detecting other vessels and determining their movements much easier today than it was when the COLREGS first came into force.

Hirst therefore questioned whether mariners were being properly trained in the use and limitations of these “new” navigational aids, and what was meant by “a full appraisal of the situation and of the risk of collision.”

An all-too-frequent criticism of the mariner today has been that he or she spent too much time looking at the ARPA and ECDIS and not enough time looking out of

the bridge windows. “Certainly, very few mariners today it seems ever slow down to allow themselves more time to make a full appraisal”, which required a proper understanding of the three most important phrases in the Rules:

  • risk of collision
  • close quarters situation
  • passing at a safe distance.

Hirst noted that these phrases were not defined in the COLREGS, stating that this was not surprising, as their meanings would clearly vary with the prevailing circumstances and conditions of every case.

Hirst claimed that too many mariners did not appear to have a proper understanding of the meaning of these phrases and, he believed, were interpreting them too narrowly.

Inappropriate action

Even when a proper look-out was being maintained, collisions were still occurring because mariners were failing to take the appropriate avoiding action. Citing COLREGS, Hirst noted that action taken to avoid collision should be “positive, made in ample time and with due regard to the observance of good seamanship.” He said that all too often the action taken was too little and too late. He questioned whether mariners were being taught properly the meaning of “positive” and “in ample time.” He said that he had heard of some mariners using the trial manoeuvre facility on the ARPA to determine what was the minimum alteration of course they had to make to avoid actual collision and ensure the other vessel passed a few cables clear.

Hirst also said that many mariners also did not understand that the overtaking, head-on, and crossing Rules did not apply in restricted visibility when the vessels were not in sight of one another.

No reason to change

That many mariners today appeared  to lack a proper understanding of the Rules and how they were to be applied was not, in Hirst’s opinion, reason to change the COLREGS. As written they were simply and concisely worded, and arranged logically.

For all these reasons Hirst concluded that COLREGS were still fit for purpose and there was no need for the Rules to be totally revised, whether to accommodate autonomous ships or to reduce the number of collisions.

He said that the fundamental changes to the ways in which ships would be operated in the future would only require a few minor amendments to the COLREGS to ensure the Rules continued to be workable. “If the shipping industry is serious about reducing the number of collisions it would do better to focus its attention on the way in which mariners are taught the Rules and how to apply them, and not upon the Rules and how they might be changed” said Hirst