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ocean law When close quarters means too close BY KARYN VAN WIJNGAARDEN, LLB, BSC, SOLICITOR WITH OCEANLAW NEW ZEALAND PHOTOS BY: AARON FOX H indsight always gives us the benefit of seeing things clearly. The recent collision between a commuter ferry and a water taxi in Auckland is no exception. In this circumstance, regardless of contributing factors such as sun strike, a close quarters situation escalated into a collision situation with typical rapidity. It is incredibly fortunate in this incident that no-one suffered serious injuries and only one person reportedly suffered from minor injuries. The benefit of hindsight, when the outcome has been a collision, enables clear identification of a close quarters situation which led to the collision. Unfortunately, it's not always that easy. Maritime New Zealand releases a monthly report of the incidents that have been reported to their offices. As a sample, for the month of March this year, there were 35 reported incidents. 12 of those were near miss/close quarters incidents and a further two of those incidents were collision situations. While there are strict reporting requirements for incidents, it is likely that there are far greater numbers of incidents that are not being reported. What exactly is a close quarters or a near miss situation? It is not a simple question to answer. Instinctively, it feels like one of those things that, "you'd know when you see." Maritime New Zealand's incident reporting forms for recreational vessels require only the ticking of a box and a description of what has happened – but how do you know whether you have been involved in a close quarters situation, or a near miss? The International Regulations for Preventing Collisions at Sea sets out the responsibilities of vessels in relation to each other. That convention is, as most readers will be aware, codified in New Zealand by the maritime rules. For example, maritime rule part 22.8 (1) requires operators, where a risk of collision has been identified, to take actions to avoid collisions in accordance with the maritime rules, which should, "if circumstances allow be positive, made in ample time and with due regard to the observance of good seafaring practices" – a requirement that is key for the sake of clarity for operators – and avoid unpredicted changes in speed or direction. Maritime rule 22.8 (3) goes on to state: "…alteration of speed may be the most effective action to avoid a close quarters situation provided that: It is made in good time and It is substantial and It does not result in another close quarters situation". It is clear that these actions are in the context of a situation where a risk of collision has been identified, but the identification doesn't always precede a close quarters situation, so is of limited assistance. The maritime rules are not the only rules, however, of which the operators of smaller vessels need to be mindful. Several councils have instituted further requirements to keep clear of vessels in an attempt to ensure the safety of all those who use waterways. An example of the use of local bylaws is the "moving prohibited zone" which exists around all vessels over 500 gross tonnes, within pilotage zones in the Marlborough Sounds. That prohibited zone extends to 500 metres ahead of any vessel greater than 500gt, 50m either side and 50m astern of the vessel. A similar moving prohibited zone exists within the Napier pilotage district – that zone is also 500m ahead but 100m either side or astern of the vessel. What becomes apparent, in the midst of the IRPCS convention, local navigations bylaws and experience, is that there is a good reason that "close quarters" isn't defined. What constitutes a "close quarters" situation is so circumstantial that it is inevitable that there will be countless exceptions to any attempted definition. The usual passing distance between two Cook Strait ferries in Tory Channel, for example, may not constitute a close quarters situation but a similar distance between two large ships on the high seas likely would. Similarly, the distances between a small vessel and a vessel exceeding 500gt may be fine within pilotage limits, but considered too close outside. The comfort level one may have with proximity of a vessel appears to depend on the size of the vessel. Further, visibility, tide and weather may also influence what distance is acceptable between vessels, and what crosses the threshold into "close quarters". All that is clear? Acceptable distances between vessels depends on the vessels and on circumstance. It is important to remember that there is an obligation on operators of all vessels to obey maritime rules and to report any incident that occurs. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 52 Professional Skipper July/August 2013 www.skipper.co.nz