The advancements in computer technology have moved dramatically over the life time of a single generation. There are those in command of vessels who still recall their time as a young navigator using celestial navigation for ocean passages. Coastal passages used visual bearings and radar ranges, with the occasional assistance from Decca and Loran (early types of electronic navigation). However, no matter which modern aid was utilised, there were continuous checks and cross checks carried out to affirm the vessel’s position and to ensure the vessel was on her correct heading.

The start of the watch would include a check of the vessel’s position and cross check that the marked position on the chart was correct and that the planned courses for the watch had been properly laid off. Particular care was taken to assess the time of any alterations of course. Such alterations would generally be detailed in the Night Orders Book, with a requirement to call the Master who would attend on to the bridge. He would then check the vessel’s position before the alteration was executed. The vessel’s navigation was not carried out by the watch keeper, but by the bridge team, each checking on the other to ensure the safety of the vessel. The latest development in electronic navigation aid programs is ECDIS.

What is ECDIS?

Traditional paper charts have been replaced by the program Electronic Chart Display and Information System (“ECDIS”). Using this system the navigator of a vessel can now, with a touch of a button, easily change between charts and it will show the position of his own vessel and of vessels in the vicinity. The instant availability of the electronic chart saves time – no need to order and wait for paper charts. The Navigating Officer can also plan and summarise the passage much faster than on paper charts, the electronic charts are updated weekly, and are more cost efficient.

Considering The “MUROS” case

Recently, however, the UK Marine Accident Investigation Branch (“MAIB”) reported on the grounding of the bulk carrier, “MUROS”, on Haisborough Sand off the east coast of England.

Within their report, they drew on other casualties that had been investigated and highlighted ongoing research on why seafarers are utilising the ECDIS in ways that are often inconsistent with the system manufacturer’s instructions and guidance. In this article we delve deeper into why ECDIS is not being used as envisaged.

Time is of the essence

Time onboard is always at a premium, particularly when the vessel is trading on the coast with frequent port calls. The navigator has his watch keeping duties, on deck and on the bridge. In addition, they have to fit in passage planning/navigational preparations, hours of rest etc. If there is one job to be done with two methods, the quicker will prevail.

In the “MUROS” case, the navigator did a visual check of the passage on the ECDIS screen using a general scale (2) chart display to skim over the route that had just been planned. However, that check was not the same as running a ‘Route Check’ through the listed ‘warnings’. Of course the time that it would take to review upwards of 3,000 warnings makes one understand why a visual check was opted for, but raises a question as to the overall standard of the passage plan.

Such a shortcut had consequences, as the “MUROS” navigator discovered. The failure to zoom in and check on the largest scale vector chart resulted in relevant information not being displayed, with the consequence of the vessel’s course being incorrectly laid across the Haisborough Sand, where the vessel grounded.

The failure of all the alarms to sound on the intended passage also meant that the ECDIS safety alarms were not set. This meant that there was no alarm when the vessel crossed the safety depth or the safety contour. In days gone by, there was no such alarm system, save for when the cadet stood in front of the echo sounder and was told to shout when the 100 fathom line was crossed – so why is a depth alarm so important today? Is it because more is being left to the individual to do?

Using ECDIS has meant taking a back seat

The introduction of ECDIS appears to have caused the bridge team to take a back seat. Is this because once the ECDIS is programmed, it is ‘assumed’ to be correct? Is it because the Master is less familiar with computers and ECDIS than his junior officers who have been brought up in this age of gaming and electronics and are involved with the day to day operation of the ECDIS? This is a dangerous path since this is the same generation that do not easily question what they are being told by a computer. They have such confidence in the equipment that they do not doubt the information given to them.

ECDIS is an aid to navigation and it is the ‘aid’ part that today’s navigators frequently forget. They consider it to be the entire means of navigation, such that they do not need to cross check their positon as displayed, marking that range and bearing position on the ECDIS chart and then checking to see where the vessel is heading. The “MUROS” passed a number of buoys and passed them on the wrong side, yet no one checked for their light and position, and then to ensure that they were being passed on the correct side. The navigator is there to ensure they know where they are and where they are going.

With the reduction in manpower, today’s watch keepers appear to have been left to make their own decisions, with no backup checks. They can look at an electronic chart and watch the progress of their vessel as well as the progress of other vessels in the area. Rather than complying with the collision regulations, any vessel they consider in their way is more likely to get a VHF call, by name, to be asked what their intentions are – a practise frowned upon for decades, and still criticised, yet it continues. VHF and AIS assisted collisions have hit the headlines many times and are strongly criticised by the Court.

As in the “MUROS” grounding the phenomenon reported by the MAIB are commonly found in other groundings, attributed to improper use of ECDIS and its functions. For example:
a. Passage plans that have been completed, checked and approved are changed by the watch keeper after being asked to do so by the navigating officer in an effort to save a few miles.
b. The audible alarms are disabled for cross track error, look ahead functions, safety depth and safety contours resulting in no warning when these situations arise.
c. Failure to carry out a route check, in order to ‘clear’ all the alarms or ‘safety’ issues that the ECDIS has found in the planned passage. In the “MUROS” there was said to be around, an astonishing, 3,000 queries that should have been checked and cleared.
d. Working on the wrong chart type.
e. A failure to look out of the window, check the vessel’s position and that the intended course of the vessel is safe.
The Importance of Data Recording Equipment in Casualties

Like many incidents, it is never one event but a series, which causes a loss. The answers to the question as to why and how a vessel has run aground are usually tucked away in the VDR (voyage data recording). That is why systematic saving of data on the VDR is so important. Masters should be encouraged to save data whenever something untoward occurs on board the vessel. It would provide him and his officers with invaluable evidence of the events that occurred and hopefully prevent any reoccurrence. Fortunately for the “MUROS” navigator, the ECDIS voyage data was saved and accessed by the MAIB providing valuable insight into the incident.

AIS

The AIS data (Automatic Identification System) for the vessel transmits information of the vessel which includes her unique identification digits, position, course and speed. This information is received by shore stations and other vessels and is displayed on their AIS equipment and on their ECDIS program. It therefore allows watch keeping officers to track and monitor vessel movements. As with the VDR, the MAIB used AIS to cross check and confirm the credibility of the route information that had been downloaded from the VDR of the MUROS.

Some reflections and possible solutions

The ECDIS is an amazing aid, allowing one to view on a single screen how your vessel and other vessels in the vicinity are proceeding. However, route planning and checks using ECDIS requires time and if the navigator is not given adequate time to plan the passage, short cuts will be taken.

If the user of ECDIS is not fully conversant with the program or not confidant in its use, then he may not know how to run the necessary voyage checks to ensure his navigator has properly planned the passage. Whereas the Master could spot an error on a paper chart without difficulty, on ECDIS he has to know where to look.

Perhaps a new button needs to be installed, called the ‘MVC’, the Master’s Voyage Check, which runs a check of the current passage that is being monitored and lists not only safety issues but the alarm status and parameters.

Perhaps a full training day on specific courses on passage planning alone is required so that senior officers obtain adequate time to familiarise themselves with the controls needed to check that their navigators have properly planned the voyage. The navigators need time to become conversant with the safety checks they have to make before approving a passage plan.

Lastly, of note are the cautionary words from ECDIS Ltd in their training manual, a company that excels in training seafarers in the proper use of this equipment:

“There is a tendency to put too much trust in computer based systems and believe whatever is on the display. It is essential that officers remember to cross check the information displayed by all means available, especially by looking out the window and watching the radar.” (ECDIS Ltd IMO 1.27 Model ECDIS Course, JRC JAN-2000, V 1.6, 13 August 2012, page 64)

‘First published on Shipping and Trade Law (2017) 17 STL 5, p.4.”

Background

There have been numerous articles in circulation since seven countries (Saudi Arabia, United Arab Emirates, Bahrain, Egypt, Yemen, Libya and the Maldives) decided on 5^th June to cut all diplomatic ties with Qatar and impose an economic blockade against the tiny emirate accusing Qatar of supporting and funding extremists’ ideology and terrorist groups in the region. This article examines the legal implications of the Qatari blockade, which carries neither a UN mandate nor an Arab League one, on your charterparties.

The impact of this blockade is catastrophic since these nations have also banned Qatar from the use of their airspace, waters and land – a country that only shares borders with Saudi Arabia and is submerged in the warmth of the Persian Gulf. Qatar relies heavily on all transport modes to meet its demands and needs, and shipping is undoubtedly the main contributor to its artery of life.

Why should the carrier be concerned?

The reason why the Qatari nightmare might affect charterparties is that the blockade does not only ban Qatari-flagged/owned vessels from trading with these countries, but some of these nations also extend the ban to any other vessels coming from or destined for Qatar. Most recently, the Port of Fujairah appears to have eased restrictions for non-Qatari flagged vessels wishing to bunker at the port, as the Port Authority has reduced its ban to prevent vessels from loading or unloading any Qatari-origin cargoes or allowing ships to load UAE cargo destined for Qatar. The latest UAE Federal Transport Authority circular omits any reference to bunkering, and thus if the ban on foreign ships to bunker at Fujairah is lifted, then such a move will certainly relieve foreign shipping companies from the inconvenience and extra cost of having to bunker elsewhere.

The non-uniformity among the allied nations with their interpretation of the blockade has left the shipping world in a dilemma, trying to figure out what each individual State and port requires. The situation must be closely monitored for any changes, seeking regular assistance and clarification from local correspondents.

The vessel is destined for Qatar – can the carrier terminate?

Certain provisions in the charterparty must be carefully considered, most importantly the jurisdiction and applicable law clause, to identify the correct interpretation of the charter and thus the rights and liabilities of the parties

1. Safe port

Generally, a port is safe if the ship can reach it, use it and return from it without, in the absence of abnormal occurrence, being exposed to danger which cannot be avoided by good seamanship and navigation. Ports must also be ‘politically’ safe, whereby a port could be deemed unsafe if the vessel would be subject to confiscation by a State for reason of calling at a particular port. However, the port must be ‘prospectively safe’ at the time charterers nominate the port. If the nominated port becomes unsafe at a later stage, then charterers are under a secondary duty to order the ship to an alternative port. Nevertheless, Qatari ports cannot be said to be ‘unsafe’ by reason of the current blockade because, at present, the effect of the embargo is akin to a ‘travel ban’ imposed by the allied nations. This ban does not make it illegal to call at any Qatari ports as the vessels that call there will not be subject to confiscation by any government, but they will be denied entry into other regional ports. This however is very restrictive to the trading pattern in the region, since most Qatari imports are usually transited through Dubai via feeder services, or through Saudi ports where cargoes are loaded on trucks destined for the tiny emirate.

However, if a war breaks out between Qatar and any other nation, then Qatari ports could be deemed ‘unsafe’. If that happens, the carrier is then entitled to refuse to call Qatar, and request charterers to make a substitute nomination. If a war breaks out while the ship is already in Qatar, then charterers are unlikely to be in breach of the ‘safe port warranty’ because the port was prospectively safe when the nomination was made.

2. Force majeure

Force majeure is the parties’ go-to clause whenever “out of control” events arise, and the Qatari embargo is no exception. The type of events are usually defined within the clause, most commonly covering war, riots, fire, flood, hurricane, earthquake, explosion and strikes. Some force majeure clauses cover acts of State or governments which prohibit any party from performing its obligations under the contract. In order to succeed, the party must ensure that the event in question falls within the parameters of the force majeure clause. Given that vessels will not be allowed to discharge or load Qatari-origin or Qatari-bound cargoes in certain ports by virtue of the Qatar blockade, or will simply be denied entry to these ports by reason of the vessel’s earlier call at Qatar, this is a governmental action preventing the carrier from performing his obligations. Therefore, it could be a force majeure event in this instance, and the consequences therefrom are usually stipulated in the clause i.e. the contract is mutually excepted, cancelled, or time so lost to be for charterers’ account. Particular attention should be drawn to what should happen in case the force majeure event runs for a long period of time, whereby frustration of the contract may be considered in the absence of any other agreement.

However, the force majeure clause can be of assistance to the shipowner when calling the Gulf ports that are enforcing the blockade, but it will not apply if the voyage charter is restricted to calling Qatari ports, since Qatar announced that it will not take reciprocal measures against the allied nations. Thus vessels calling the applicable Gulf ports can still call Qatar, provided they are not sailing directly to that destination.

When calling Qatar is permitted under the trading limits clause under a time charter, but the vessel cannot now call various ports due to the blockade, then arguably the force majeure clause will operate in favour of the shipowner, permitting the Master to refuse to call prohibited ports. Subject to the wording of the clause, charterers may have to make alternative arrangements for the Qatar-destined cargo in order to minimise the interruption to the vessel’s ports rotation.

3. Liberty clauses

As an alternative measure, the parties may consider transhipping the Qatari-cargoes, or cargoes destined to Qatar, to the ports of Oman, Kuwait or Iran (being mindful of any applicable UN, US or EU sanctions), and using regional feeder services. Although this option is commercially viable, it may not fall within the ambit of the liberty clause, which entitles the carrier to discharge the cargo at alternative ports, because trading to and from Qatar itself is not illegal. The option may be a sound solution among owners and charterers, but it could potentially be in breach of issued bills of lading and prejudice the carrier’s insurance cover. If a specific discharging port is named in the bill of lading, i.e Port of Doha in Qatar, then any deviation to an alternative port will be in breach of the bill’s terms and conditions. The carrier would be held liable to the holder of the bill of lading. In addition, the insurance cover may also be prejudiced if the vessel deviates from the agreed or customary route, as the deviation might deprive the owners of their rights of limitation as against cargo interests, all of course subject to the wording of the liberty clause and/or the policy terms. Maersk Line has recently resumed their Qatari-bound services using feeder ships operating from Oman.

Furthermore, carriers must be mindful of the extent of the incorporation clause used in their bills of lading which, subject to the words used and the jurisdiction where the cargo claim is brought, may not be wide enough to incorporate the liberty clause. For instance, ‘all terms and conditions of the charter are hereby incorporated’ may not be wide enough to incorporate ‘clauses’ i.e. governing law and arbitration, liberty or force majeure clauses. However, the Congenbill 2007 terms may be wide enough to incorporate such ‘clauses’.

4. Frustration

Frustration occurs where an unforeseeable change of circumstances, not caused by a breach of either party, renders the performance of a contractual obligation impossible, illegal or radically different from what had been initially contemplated by the parties. However, if the obligation in question can still be performed, albeit being more expensive or increasingly onerous, the contract will not be frustrated. Frustration is not an easy argument to make out before English courts, since the threshold is burdensome. Courts take into account the commercial purpose of the contract and the length of the delay caused by the frustrating event, whereby the interruption of the voyage must be ‘sufficiently grave as to frustrate the adventure’.

By virtue of the Qatar embargo, vessels may sit idle for a long time because they would not be permitted to sail to Qatar from the allied countries, nor would they be permitted to call at these ports coming from Qatar. In the best case scenario, force majeure clauses may be wide enough to cover governmental action, or the liabilities for the resulting expenses and delay may be sufficiently addressed in the charter. In the absence of such clauses, turning to frustration is not necessarily straightforward, because transhipping the Qatari-related cargoes using other regional ports which are not enforcing the blockade is a possible alternative, subject to equipment, manpower and facilities. The mere additional expense and delay incurred by reason of such transhipments will not render these contracts frustrated. For example, a contract was not frustrated under English law for a vessel which could not pass through the Suez Canal, because she was able to sail around the Cape of Good Hope. This indicates how English Courts assess alternative measures in order to keep contracts alive, and only frustrate them in very rare and detrimental circumstances.

Nevertheless, if the cargo in question was perishable and transhipping would not help deliver the cargo on time and in good order, frustration would appear to be a possible solution to free the parties from further obligations, because in such circumstances the purpose of the contract would be defeated. By contrast, if the vessel was waiting to load a Qatari-origin cargo destined to one of the allied nations, then carriers could be entitled to refuse to load the cargo and charterers could be obliged to provide an alternative one, failing which the contract may be frustrated if the embargo persists for a long period of time.

5. Off hire

Since it is uncertain how long this embargo will last, time-charterers, who are bearing all the expenses of the delay caused and bunkers used by reason of waiting outside the affected ports, are likely to argue that the vessel is off-hire. However, they must be careful in interpreting the wording of the relevant off-hire clause as most of the common ones in use do not cover the eventuality of governmental action.

6. Sanction clauses

The BIMCO Sanctions Clause for Time Charter Parties would entitle shipowners to refuse compliance with any orders that could expose the vessel to any sanctions or prohibition by any State. It further holds charterers liable to indemnify shipowners for any claims howsoever raised by cargo interests, and that the ship remains on hire until charterers provide different orders. The BIMCO Sanctions clause is widely incorporated into many charterparties, but there are other sanction provisions which provide similar cover. The particular wording of any sanctions clause must be reviewed and revisited to identify the parties’ liabilities. The Qatar embargo is only an economic blockade, at the moment, imposed by a few regional countries and so any sanctions’ clause would most likely not apply here.

Conclusion

Although it has emerged that some ports are easing the restrictions imposed on non-Qatari flagged ships, such as at the port of Fujairah and some crude oil terminals, it remains uncertain as to how the situation will evolve. The media have reported several political motions calling for the end or easement of the blockade on the tiny State, but the commercial effects are anticipated to attract substantial costs. Some insurers have flagged up their exclusion clauses in their rules and policies that would avoid liabilities that could arise as a result of noncompliance with the Qatar blockade.

The terms of your charterparties and bills of lading must be carefully considered before shipowners or charterers prematurely withdraw their vessels, divert their ships or cancel their contracts. In addition, new contracts being entered into need to be considered with the Qatar situation and the above legal implications in mind.

Should you have any questions or comments on this article or have any queries regarding your charterparties or other matters relating to the situation in Qatar, please do not hesitate to contact us.

Moustafa Fkhir

Trainee Solicitor

Elias Law Limited

E-mail: law@eliaslaw.uk

Tel: +44 (1202) 051222

24/7: +357 25 800 999

 

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