Practical changes to what are commonly known as the “col regs” will result in lives being saved. To the lay person or inexperienced boater the increase in height from 60cm to 1 metre for the masthead light may seem insignificant. However, removing my lawyer’s wig and putting on my captain’s cap for practical analysis leaves no doubt in my mind the safety benefits that will flow to all mariners.
History
The problem with the old regs is highlighted by the view from my family home, a renovated two storey boatshed which has a 270 degree view of Lake Macquarie allowing me to witness the comings and goings of vessels over a large area. At night, while the lake is not festooned with lights like its southern cousins, it still has densely populated pockets where navigation lights are hard to distinguish and more importantly the large distances over the lake makes distinguishing distant navigation lights difficult.
The need for change to the old regs can also be viewed historically with the development of hull design and high speed engines. Where once upon a time the displacement hull with its limited speed ruled the sea, allowing for longer reaction periods to overt disaster. Today, reaction times have not only significantly shortened, but also the frequency of usage of high speed vessels has increased. This mix provides a ships cocktail of short reaction times in a seaway that has become like Pitt Street increasing the risk of serious accidents on our waterways.
Government has responded to a series of serious boating accidents resulting in new laws dealing with the height of the navigation lights on vessels. This light separation assists with distinguishing vessels under steam more easily. Other concerns have also been raised including: excessive wash; driving a boat without a licence; and the requirement for a certificate of buoyancy and capacity, this article will specifically deal with avoiding legal problems that may arise for the marine industry resulting from the changes to the laws.
Recent cases calling for change
There have been a number of incidents of late that have unfortunately resulted in deaths as well as injuries. The two most widely-known are in relation to an incident occurring at Bradley’s Head in Sydney with a large number of teenagers onboard and a second incident where the vessel was named Merinda.
The first of these accidents occurred on May 1, 2008, and involved 14 teenagers who decided to borrow a boat for a night only to crash an hour later into a fishing vessel, resulting in five dead and nine being injured. This occurred at 2.40am with an unlicensed skipper at the helm and obviously involved a combination of speed and alcohol. There was however a strong indication that the navigational lights were not on during the voyage and this was a large factor in the accident.
The Merinda is probably the best known incident to have occurred in recent times and involved an accident between a pleasure cruiser and a Sydney ferry. The cruiser was in fact split in two by the crash. A group of 12, including an up and coming ice skater was aboard at the time and three were killed in the crash. The ferry has always maintained that no navigational lights were operating on the cruiser and recent investigations have not indicated differently.
Response
The changes to the laws in regard to navigational lights have resulted in the implementation of the International Regulations for Preventing Collisions at Sea, as found within the Marine Safety (General) Regulation 2009, which provide additional instruction as to the technical aspects of safe boating. Only two of the changes have been listed below to provide working examples for the legal suggestion found later in this article.
Schedule 2 Annex 1 of of the Marine Safety (General) Regulation 2009 for example discusses the positioning of lights and shapes, including spacing. The most significant of these changes relates to the masthead.
In respect to a vessel of 12m or less in length, therefore covering the majority of power vessels, the uppermost light may be carried at a height less than 2.5m above the gunwhale unless a masthead light is carried in addition to sidelights and a sternlight or where an all-round light is carried in addition to sidelights. If either of these are the case then that masthead or all-round light must now be carried 1 metre higher than the sidelights. S9 of the Annex also discusses the required intensity of masthead lights and stern lights as that which meets rule 21. Such requirements include an unbroken arc of the horizon of 22.5 degrees on either side of the vessel. This is a change from the Uniform Shipping Code which only required a 13.5 degree arc. The result being that the 60cm height masthead or steaming light found on all vessels prior to these changes is no longer legal and must be changed to 1 metre.
In response to recent collisions between marine vessels, Safety Regulators will increase compliance activity with respect to navigation lights. As a result, it is important that all retailers, installers, repairers and brokers of vessels and vessel equipment are able to provide up-to-date advice and service. The checklist below provides some practical suggestions that may assist you in limiting your liability with respect to the Marine Safety Regulations, Trade Practices and Fair Trading Acts.
Safeguarding your business
Following a series of recent NSW BIA technical seminars in which Nick Richards of NSW Maritime presented and I attended to answer legal concerns, several issues were identified by the industry. These issues, along with some practical legal suggestions on how to prepare your business with respect to changes to navigation lights arelisted below.
While with respect to imported vessels the Trade Practices Act deems the overseas manufacturer as responsible to make the vessels compliant with Australian standards the retailer/broker is not completely released from their responsibilities some of which are:
- What is my responsibility as a retailer/ broker of vessels?
- If the boating public is relying upon your professional opinion as a retailer/broker you should provide a high standard of sales service to customers. Professional service providers in a specialised field are at greater risk of litigation if their services are not of a high standard.
- Remove and replace old stock. It is safer to lose a little money in replacing inventory than being required to justify in court why the non-complying item was sold.
- Vessels should be fitted with compliant components and installation should be to relevant standards and in compliant configuration.
- What is my responsibility as an industry representative to notify customers?
- Have sufficient knowledge and be ready to notify customers of the importance of nav-light compliance.
- Notify customers appropriately of potential concerns regarding compliance of their vessel.
- What is my responsibility as a service and advice provider?
- A professional service provider has a duty of care in their communications and work not mislead or deceive.
- The provider of services and advice is expected to be knowledgeable of the current industry standards and requirements, and conduct all their work according to such standards.
- Failure to maintain knowledge and practice of these requirements may possibly lead to a unsuccessful defence to a claim.
- The service provider should clearly explain to the customer the need to update their old navigation lights.
- Maintain good written records.
Additional points
The above suggestions cannot be considered a complete list. To limit any claim against you or your business the legal tests required for you and your business are:
- All vessels built, serviced or sold should be of a merchantable quality and fit for its purpose meeting the required standards.
- Where professional service or advice is provided there is a duty of care to provide up to date, accurate and relevant service and advice to customers.