Hostname: page-component-78c5997874-fbnjt Total loading time: 0 Render date: 2024-11-09T22:55:06.511Z Has data issue: false hasContentIssue false
  • English
  • Français

Vessel Traffic Services and the Law

Published online by Cambridge University Press:  23 November 2009

Aline De Bièvre
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper was presented in an elaborated version at a seminar on Safety in European Waters and Progress in the COST-301 Project sponsored jointly by the Institute and the Nautical Institute n i London on 12 December 1984. It reports on the preliminary findings of an independent ‘pilot’ study carried out for the Commission of the European Communities on the legal implications of implementing Vessel Traffic Services (VTS) systems in Western European waters. In particular, it seeks to contribute to wider understanding of the legal position of the VTS authority with respect to the giving of information, advice or instructions to ships, and to assess the possible consequences for legal liability.

Type
Research Article
Information
The Journal of Navigation , Volume 38 , Issue 3 , September 1985 , pp. 347 - 364
Copyright
Copyright © The Royal Institute of Navigation 1985

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1For the purpose of this paper the term ‘liability’ denotes a ‘secondary’ or ‘functional’ obligation. Namely, it concerns a duty of reparation or compensation for loss or damage which arises as a result of the violation by the liable party of its ‘primary’ obligation or ‘responsibility’ to ensure that activities under its control do not cause loss or damage. The above definition of terms is borrowed from Handl, G., State liability for accidental transational environmental damage by private persons, The American Journal of International Law, 74, 526 n. 5.Google Scholar
2For the text of the revised version of the IMO draft Guidelines for VTS as prepared by the Sub-Committee on Safety of Navigation in December 1984 for approval by the Maritime Safety Committee and the Assembly respectively in May and November this year, see IMO document NAV 30/11 (18 January 1985), Annex (18 pages).Google Scholar
3The IMO draft Guidelines for VTS state that the criteria for planning a VTS should include inter alia ‘the general risk of marine accidents and their possible consequences’ and ‘the need to protect the public and safety of the environment’ (Chapter 2, paras. 3. 1 and 3. 2).Google Scholar
4Fujii, Y. et al. (1984). Survey on Vessel Traffic Management Systems and Brief Introduction to Marine Traffic Studies, pp. 1–2, 26–30. Tokyo: Electronic Navigation Institute Paper No. 54.Google Scholar
5Ibid. (pp. 26–9).Google Scholar
6Gold, E.The new law of the sea and vessel traffic services. Proceedings of the Fifth International Symposium on VTS, (p. 180). Marseilles, 23–26 April, 1984.Google Scholar
7I.e. the 1910 Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage At Sea. The new ‘Draft Salvage Convention’ under consideration at the IMO was prepared by the Comite Maritime International (CMI) and adopted by the 1981 CMI Conference in Montreal.Google Scholar
8See in particular reports of the fortieth (4–8 June 1979), forty-fourth (17–21 November 1980), fifty-second (10–14 September 1984), fifty-third (10–14 December 1984) and fifty-fourth (25-29 March 1985) sessions of the IMO Legal Committee.Google Scholar
9See in particular the proposal of the government of France to introduce a more liberal definition of the term ‘maritime casualty’ including an express reference to ‘a probability of discharge’ to be understood as ‘damage, failure or breakdown which affects the safety of the ship, or…failure or breakdown of machinery or equipment which affects the safety of navigation’ (IMO document LEG 54/4/1/Add. 1 (8 March 1985), para. 3. 1). Author's personal record of deliberations of fortieth IMO Legal Committee session (June 1979).Google Scholar
10It is important to note that there is under the present terms of Article 8 and Protocol I of the 1973 Marine Pollution (MARPOL) Convention as amended by the 1978 Protocol no express mandatory requirement for the master of a vessel to report pollution incidents to the nearest coastal state. However, the IMO ‘Interim Guidelines for Reporting Incidents Involving Harmful Substances’ (Assembly Resolution 447 of 15 November 1979) recommend that a report be transmitted without delay to ‘the nearest appropriate coastal radio station’ (para. 4. 1. 1 of Annex’). A proposal has been submitted by an ad hoc Working Group on the Mandatory Reporting System to the IMO Marine Environment Protection Committee t o amend the legal requirements of MARPOL Protocol I in accordance with these guidelines (IMO document MEPC 20/WP. 7 (6 September 1984), para. 18.2 and Annex 2, p. 2, Article 3(1). ‘For the work of the IMO Marine Environment Protection Committee on guidelines for a mandatory reporting system under MARPOL 73/78 see in particular IMO documents MEPC 19/9(10 July 1983), MEPC 19/WP. 1 (4 November 1983), MEPC 20/WP. 7 (6 September 1984) and MEPC 20/19 (24 September 1984), paras. 10 1–10. 20.Google Scholar
11According to the IMO draft Guidelines for VTS the reasons for establishing a VTS may include inter alia this particular function (Chapter 1, para. 1. 1).Google Scholar
12By way of comparison, the IMO concept of ‘special area’ laid down in the 1973 Marine Pollution (MARPOL) Convention is more limited in scope, in that measures which are stricter than existing international regulations can be adopted only in respect of ship operational discharges of oil- and chemical- contaminated substances. However, it is broader in that it can cover parts of the high seas extending beyond the 200-mile EEZ. The only European ‘special areas’ designated under MARPOL are the Mediterranean Sea (oil) and the Baltic Sea (oil and chemicals). See Annex I of the Convention, Regulations 1 (10) and 10(1), and Annex II, Regulation 1(7).Google Scholar
13It is worth noting that the 1984 Marseilles Symposium on VTS recognized that ‘VTS can greatly contribute to an efficient and safe use of sea areas where co-exist marine traffic and other offshore activities (for example fishing, oil drilling, etc.), each having their own interests’ (Conclusions of the Symposium, Section 1.3).Google Scholar
14Significantly, the International Chamber of Shipping (ICS) submitted to the IMO that special circumstances inducing the giving of instructions to ships in international waters in particular should be identified in order that ‘common practices now and in the future can have a proper legal base’ (IMO document NAV 29/7/3, o o -May 1984, para. 7).Google Scholar
15It has been suggested that differences in the ‘style’ or ‘tone’ of VTS messages can be explained by a number of factors including for instance the national character of the traffic controllers, the degree of command of the language used for communication (i.e. of the English language in particular), and the circumstances under which the message is issued, See Riet, J. A. Van and Vrijer, K. J. De, Aspects of VTS and Deepsea Pilotage Onboard a VLC. Proceedings of the Fifth International Symposium on VTS, Marseilles, 23–26 April 11984 (p. 130).Google Scholar
16I.e. pilots manning the ‘Radar Verdon‘ at the Gironde Estuary. See Operational Report 1979 by Gironde Estuary Surveillance Radar. See also Lopinot, P., Use of the Verdon Radar by Gironde Pilots, Proceedings of the Fifth International Symposium on VTS, Marseilles, 23–26 April 1984 (pp. 83–6).Google Scholar
17Kop, G. and Polderman, K. VTS Developments in the Netherlands. Proceedings of the Fifth International Symposium on VTS, Marseilles, 23–26 April 1984 (p. 78).Google Scholar
18Conclusions of the Symposium, Section 1.2.Google Scholar
19Sections 3.3.2 and 5.3.1.6.Google Scholar
20Kop G. and Polderman, K. op. cit. pp. 79–80.Google Scholar
21This phenomenon certainly has reflected on the general philosophy behind the IMO draft Guidelines for VTS which, in the Preamble, state that ‘VTS authorities are urged…to ensure that vessels outside territorial waters are able to use, on a voluntary basis, the services provided (my italics) ’. In the same vein, they further recommend that ‘The VTS authority should in general limit the functions of VTS operating outside port areas and their approach channels to those of providing information service and navigational assistance service to vessels for the purpose of safety of navigation or the protection of the environment (my italics)’ (Secion 2.1.4).Google Scholar
22According to one expert it must also be expected that routing schemes will be increasingly used for coastal protection and become located well clear of the coastline. In connection with this, there is likely to be a gradual extension further offshore of radar surveillance for such routing schemes in order to ensure compliance with the Collision Regulation s and any national rules which may apply. See Cockcroft, A. N., Development of Routing in Coastal Waters. Proceedings of the Fifth International Symposium on VTS, Marseilles, 23–16 April 1984 (pp. 149–152).Google Scholar
23Kop and Polderman, op. cit. (p. 74.)Google Scholar
24In this respect it must be noted that according to Article 211, para. 1 of the 1982 Law of the Sea Convention, unilateral attempts by states to implement their own regulatory measures would be a breach of international law.Google Scholar
25For instance, the need for improved control of marine pollution by ships has recently led the Federal German Government to decide in favour of an extension of the territorial sea limit to twelve miles (Decision of 7 November 1984). In addition, the shipping area of the German Bight (south and west of Heligoland, and north of the Islands Baltrum and Langeoog) will become subject to sovereign jurisdiction effectively extending sixteen miles from the shore; the purpose being enhanced control of shipping movements through radar and airborne surveillance, and the direction through the issuing of instructions of dangerous cargo vessels. See North Sea Monitor, December 1984 (p. 10).Google Scholar
26The geographical scope of those portions of the airspace to be provided with Air Traffic Services is determined on the basis of ‘regional air navigation agreements’ approved by the Council of ICAO normally on the advice of ‘regional air navigation meetings’ (Annex 11 to the Convention on International Civil Aviation, Chapter 2, Section 2. 1, para. 2.1.2).Google Scholar
27See for instance Conclusions of the Fifth International Symposium on VTS, Marseilles, 23–26 April 1984 (Section 0. 2). See also Guicharrousse, M., Air Traffic Control and Vessel Traffic Services, Proc. Marseilles VTS Symposium, 1984 (pp. 23–8).Google Scholar
28Interview, International Association of Ports and Harbours (IAPH). See also Mankabady, S., Vessels in Controlled Areas: Rights and Liabilities, Proceedings of the Fourth International Symposium on VTS, Bremen, 28–30 April 1981 (pp. 61–72).Google Scholar
29For a more detailed discussion of the philosophy underlying this clause see Bièvre, A. De, Navigational safety in European waters, This Journal, 36, 177 (May 1983).Google Scholar
30For the Urquiola case see Hazardous Cargo Bulletin (November 1983), p. 24. For the Tsesis case see H. Tiberg, Oil pollution of the sea and the Swedish ‘Tsesis’ decision, Lloyd's Maritime and Commercial Law Quarterly (May 1984), pp. 218–26. See also The Tsesis: a paper prepare d by a jurist of the National Swedish Administration of Shipping and Navigation and forwarded to the IHO by the Hydrographer, Swedish Hydrographic Office (Annex to IHB Circular Letter 18–1983).Google Scholar
31Gold, E. (1983). Vessel traffic regulation: the interface of maritime safety and operational freedom. Journal of Maritime Law and Commerce, 14, 17.Google Scholar
32Handl, op. cit. pp. 531–3.Google Scholar
33Wepster, A. (1979). Vessel traffic management systems: some considerations. This Journal, 32, 25.Google Scholar
34It is worth noting that all serious accidents involving air traffic control are investigated by a specially convened commission of inquiry before which both the aircraft pilot (or the air company) and the ground traffic controller (or the Administration) have to prove their case. The findings of such formal investigations permit at least a tentative apportionment of the blame and may thus provide the initial base for litigation, which confirms liability.Google Scholar
35Parker, C. J. (1984). The politics of ship control. Seaways, (August), p. 4.Google Scholar
36For instance, the latest version of the Dutch draft Shipping Traffic Act incorporates a clause on liability whereby liability is to be regulated in accordance with common law. One effect would be that the liability of the VTS Authority would not be excluded.Google Scholar
37Shared liability might be less likely to arise in case of traffic instruction as this involves a situation where the master is in principle require d to comply. See also Bievre, A. De, Enforcement of VTS Standards: Implications for the Ship and the Shore, Proceedings of the Fifth International Symposium on VTS, Marseilles, 23–26 April 1984 (p. 147).Google Scholar
38Koburger, C. W.VTS — the misunderstood system. Safety At Sea (June 1983), p. 13.Google Scholar
39Matthews, N. F. and Tresfon, R. The Harmonization of Vessel Traffic Service Procedures. Proceedings of the Fifth International Symposiumon, VTS, Marseilles, 23–26 April 1984 (p. 30). There is for instance a British court decision from 1976 in which a colliding vessel, Geminar, was blamed for having contravened the then not mandatory rules for the Dover Strait Traffic Separation Scheme. By way of comparison, the prevailing American legal opinion is that where a vessel is involved in an accident and has no t made use of assistance or information available from a (voluntary or mandatory ) VTS, she will be blamed for that failure. See R. Ringdal, Vessel traffic system — Limited guidance or extensive control. Safety At Sea (July 1982), p. 18.Google Scholar
40See for instance Degré, T. and Tricaud, E.. Prospects of the French Surveillance and Information Centres in the Channel. Proceedings of the Fifth International Symposium on VTS, Marseilles, 23–26 April 1984 (p. 158).Google Scholar