When Case Law Blurs Safety.

The collision between the bulk carrier Polesie and the general cargo ship Verity on October 24, 2023, was caused by a failure of both bridge teams to effectively apply the 1972 COLREGs in a crossing situation. Verity, as the give-way vessel, failed to take early and substantial action to stay clear, while Polesie, the stand-on vessel, did not maintain a predictable course and speed, instead making small, incremental course adjustments to port that compounded the confusion. Contributing factors included a lack of direct bridge-to-bridge communication—exacerbated by the VTS radio configuration—and the absence of a Voyage Data Recorder on Verity, which hindered a full reconstruction of the final decision-making process. 

Barry discusses the new report and highlights areas where he feels the report did not discuss fully enough. Comparison with case law has skewed the outcome of the report and Barry discusses the dangers in this.

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Transcript

SPEAKER_00 0:01

A very warm welcome everyone to the Maritime Education Podcast. My name is Barry Sadler, and if you're returning to the podcast, welcome back. It's great to see you once again. And to those of you who have found us for the first time, welcome on board. I hope that you find the details of the podcasts that we do to be both engaging and perhaps more importantly for some of you, educational in their application and content. So some of you may be aware that today and uh we are on the twelfth of february twenty twenty six, the MAIB have published their report on a collision which happened in the German Bight, uh traffic separation scheme of the German Byte to be exact, between two vessels, um a fairly small vessel called the Verity, a coaster, and a somewhat larger vessel called the Pulsi. Now the Pulsi was registered in the Bahamas, uh the Verity was registered in the Isle of Man. Pulsi a hundred and ninety meters long, Verity only ninety-one meters long. The gross tonnage of the Pulsi 24,055, gross tonnage of the Verity 2,601. So the Verity was a significantly smaller general cargo vessel. The MAIB have produced the report. Now this is not unusual. Uh Verity was registered in the Isle of Man, Pulsy in the Bahamas, but the Isle of Man being part of the Red Ensim Group may elect in the fulfilling of their obligations to the IMO to investigate accidents, uh may delegate that investigation to the United Kingdom's body, the Marine Accident Investigation Branch. And that's exactly what has happened in this case. So we've got an MAIB report, but the MAIB report is written on behalf of the Isle of Manship Registry, as I say, to uphold their obligation to investigate and report incidents. Seven crew on board, uh two of them survived. Only three bodies, uh sorry, only one body was found. Um two survivors and a body found. Uh the body was that of the master of the Verity. So the whereabouts at the time of writing the report of the other four crew members of the Verity are currently unknown. So a very sad collision that has resulted in uh in loss of life. Um easy for us all to say that this was avoidable because ultimately we have the benefit of hindsight. But now having read through the report, there are several things about the report itself and about some of the assumptions that are made in the report regarding action to be taken under the rule of the road, which I think are open to discussion and perhaps debate moving forwards. The MAIB are of course very, very careful when they write their reports, and sometimes the devil is in the detail. Um it's quite easy when you look at one of these reports to um to go very, very quickly to the um body of the report itself. Um so that's to sort of jump to the synopsis, if you like, and start to read about actually what happened and get to the crux of the incident and uh, you know, get deep into the nitty-gritty of the report. However, in this MAIB report, the MAIB have been at pains to explain some of the difficulties that they um came across whilst trying to investigate this particular accident. Um the MAIB explain what their role was in that they uh were appointed by the flag state of the uh of the ship, namely the Isle of Man, to do the investigation uh on behalf of the uh Isle of Man and the Bahamas Maritime Authority. Um the German Federal Bureau of Maritime Casualty Investigation um contributed towards the report but left the report to be written by the MAIB as the lead investigative body. Now it goes on to say, and this is still in the in in the background, so this is way before we get into any of the nitty-gritty details about the collision, it goes on to say that the investigators had real trouble collecting evidence from the German side of the investigation. Now, the German side of the investigation mainly consists of the intervention from VTS and under German law witnesses are entitled to refuse to answer questions if those answers might incriminate them. Now, in the United Kingdom we are at pains to say that marine accident investigation isn't there to determine liability or blame, it is simply there to determine how the incident could be avoided from a safety point of view, and that anything that you say to an investigator cannot be used against you in a court of law because mainly in the United Kingdom you haven't been read your rights and therefore anything that you say can't be used against you. So as far as incriminating yourself, it's impossible to do that in front of the MAIB. German law is completely different and they allow their witnesses even in front of their safety investigators to remain quiet if they think their answers may incriminate them. And reading through this report here, it would appear that the MAIB have come up against this when trying to determine what was said by the uh VTS. This is German byte VTS. Don't forget, this is a VTS, a vessel traffic service. In other words, it is a traffic service that is able to give directions to ships, and that's worth bearing in mind as we kind of progress through discussing this collision. So what happened? Well, I'm going to um try and describe to you the geographical nature of this collision. I'm going to try and make it as simple as possible. If you imagine the small ship Verity was heading in roughly a northerly direction, it wasn't exactly north, but uh roughly a northerly direction. The Pulsi was on her starboard bow and heading in roughly a westerly direction. Now it's important to note that the large cruise ship Iona was just over a mile on the Pulsi's port quarter. And talk about that a little bit in a minute because that isn't mentioned enough in the report, in my opinion. So Verity has the Pulsi on her starboard bow. It's a crossing situation. Rule 15 applies, Verity is the giveaway vessel, Pulsey is the stand-on vessel, and Pulsi was required, of course, to maintain her course and speed. Those of you that are unfamiliar with that German bike TSS, which by the way included me before I read this report, is that the TSS is a very, very complicated one. It has north and southbound lanes which cross east and westbound lanes. So if you like, you've kind of got a T junction of traffic separation schemes just inside the or I should say just outside of the 12 mile limit that uh off the German coastline. Now this obviously complicates the situation somewhat because rule 10 applies to the traffic going north and south and it applies to the traffic going east and west, and the two lanes do intersect one another pretty much at 90 degrees. So fundamentally the Verity is proceeding north in the traffic separation scheme, the Pulsi is proceeding west in the traffic separation scheme. Verity has Pulsi on her own starboard side and therefore is the giveaway vessel. Now, the report has a has a radar picture uh which fundamentally shows that Verity was showing on Pulsi's radar. Now we all were well all the way through this we're going to talk about the evidence coming from Pulsi. And the main reason for that is that Verity was so small that she did not require a Voyage event recorder. And therefore, um no data was available from the Verity on how the Officer Watch had the radar set up, what was showing on the radar, etc. etc. But they use Pulsey's radar as evidence. That's not because they are necessarily pointing the finger at uh at Pulsey by using all of her evidence, it's because Pulsey was the the only one with uh a Voyage event recorder on, or the only ship of voy uh involved in the collision, shall we say, with a voyage event recorder on it. And that's something the report highlights at the end, in that recommendations are that voyage event recorders are put on ships over five hundred gross tons and not ships over three thousand gross tons, as is currently the law. If that were the case, then Verity would have had a VER as well. It might have been easier to look at what was going through the mind of the officer of the watch, who sadly died on Verity, uh, as that officer the watch approached the Pulse so as to involve risk of collision and pretty much failed to take any action. So, crossing situation, the two vessels are basically coming together as I've described. Now, we don't really know what was happening on Verity's bridge because of the lack of VER, but Verity fundamentally continued on her um her northerly track. And the the risk of collision with Pulsi was uh was evident, um, was evident quite far out, forty-five minutes out the uh the CPA as determined was determined as being much less than we would like it to be even in these heavy traffic conditions, and therefore um why Verity maintained her course and speed we're unsure about. As the vessels got close to one another, um there was an intervention by uh the German bike VTS. Now the German bike VTS intervened when the distance between the vessels was less than 1.3 nautical miles. In words, this is very, very late intervention from VTS. Yeah. Um eight minutes out of the collision, VTS intervene, and basically they call up the Verity and they say that they've got a very small CPA with a vessel on your starboard side, the Pulsy, what's your intention? Verity comes back and says, My intention is to keep my course and speed. It's possible, change course to port, then we'll pass on my stern. Now that's a very, very broken transmission, but I read the same as I think the VTS operator would read, and that is that Verity's asking to maintain course and speed and asking if the vessel crossing on his starboard bow, crossing starboard to port, can alter course to port and pass the stern. So the VTS come back and say, according to the rules, you have to act to avoid a collision. Uh and you have you talked to the vessel Pulsey? The Ver the Verity comes back and says, Okay, I'll change my course to starboard and will pass on aft. Again, very broken English, but like VTS, uh I would have said that that was them saying that they're going to alter course to starboard and pass uh at the aft end of the crossing Pulsey. Um VTS said that they will inform the vessel Pulsey that you will pass astern of them, and Verity comes back, okay, I will pass astern of multivessor Pulsey. VTS are then forced to call the Pulsi up and tell the Pulsey what the passing situation is. Now this would seem strange to a Southampton pilot because channel twelve is a simplex channel, and when VTS are talking to a ship on channel twelve in Southampton, fundamentally what that means is everybody can hear both sides of the conversation. Amazingly, the German Byte VTS use a duplex channel, they use channel eighty. Just to explain what a duplex channel is, a duplex channel, the shore station transmits on one frequency and the ship station transmits on another frequency. Yep, the shore station receives on the same frequency that the ship transmits on and vice versa. Now the trouble with this is that it's only a one-way conversation you can ever hear. So on board the bridge of Pulsi, whilst the VTS were clarifying with Verity what her intentions were, Pulsi would not have been able to hear the Verity's response. That's why, having ascertained from the Verity that she will pass astern of Motor Vessel or Pulsi, the VTS then had to go to Pulsi and speak to her. Again there is a rather broken, in my opinion, conversation. They called up Polsi, Pulsi replies, and VTS say yes sir, there's a small CPA with the motor vessel Verity on your port side, so the motor vessel Verity will pass behind you. He told me he will come to Starboard and pass behind you. Please be aware of the situation. And the response back from the Pulsi says yes, I will be looking and be a little to starboard. That's a very ambiguous um statement to make. I will be a little to starboard. Now Verity then starts altering course to starboard very, very slowly. But amazingly, at the same time, the Pulsey starts altering course to port. So the Pulsey statement I will be looking and be a little to starboard was very, very um uh ambiguous and effectively wrong because at that point the uh the pulse starts altering course to port. Now they see this on um uh on the VTS radar and VTS then try to intervene. Okay? Now Pulsey is altering course to port, which is uh against the collision regulations, yeah. Um it's an unseaman like thing to do, but nonetheless, he starts altering course to port. I suspect this is because the Verity left it so late to make an alteration of course to starboard that with the vessels approaching one another, it may be that the officer the watch on the Pulsey thought that he was acting under Rule 17B. In other words, he was taking action that would best aid to avoid collision with the Verity. So fundamentally we've gone beyond the May stage of taking action as the stand on vessel. The Pulsey now considers himself taking the action that best aids to avoid collision and starts turning to port. The Verity starts a slow turn to starboard and VTS see this. So VTS once again intervene and tell the Pulsey to go hard to starboard. So VTS call to Pulsey, come to starboard, and six seconds later again come to starboard. Yep. Pulsey's rather than goes harder starboard, but it takes a good um twenty five seconds for Pulsi's rate of turn to port to stop before she starts coming back round to starboard. The investigators ascertain that had Polsi continued to alter her course to port, she may indeed have missed Verity, although bear in mind that Verity at this stage was making a slow alteration of course to starboard to pass astern of the Pulsi. The result of this ultimate confusion is that there is a collision, and the larger vessel, Pulsi, strikes Verity on her starboard side, about eleven metres forward of her accommodation, and uh puts a hole, the bulbers bow comes through the uh the wing tank and into the single hold. So Verity's very, very small, she's only got one hold into the single hold. Uh and uh Verity rolls down the the starboard side of Pulsy, scraping down past her anchor, uh, which um uh we think did damage to the starboard bridge wing as she did. Um then Verity very very sadly fills up with water extremely quickly. Now, um Verity was carrying steel coils. Uh steel coils are of course an incredibly dense cargo, and uh there's not many steel coils in the hold before the vessel is fully laden. That means that there's a very high permeability to the hold. In other words, there's a lot of water that can enter that hold uh along with the weight of the steel coils. The hole in the side of the ship uh is huge. Uh there are pictures on the report so you can imagine the water rushing into the single hold. Uh the vessel very, very quickly took a severe starboard list and started to go down rapidly by the head, mainly because the damaged area is is forward of the um of the accommodation and the engine room. Engine room still intact with regards to buoyancy. So all that water rushing in is going to flood the forward part of the vessel. So Verity starts to list to starboard rapidly and go down by the head. This causes the steel coils to start to shift. So their lashings break, the steel coils all shift to starboard and all start running forward, which can be seen by an underwater picture that was taken of the wreck afterwards, and that's going to cause the ship to lose stability rapidly. That combined with the free service effect of the water rushing into the hold is going to cause the ship not just to lose stability but to sink rapidly. This was indeed the case. There was a second officer and the AB were on the port side of the ship, and as the ship listed heavily to starboard and sank, they were able to jump clear of the ship. They weren't wearing any life jackets, they were in everyday clothing, uh, and they entered the water. They were the two survivors, they were both eventually recovered. One of them by the Pulsey, actually, um the other one by uh a search and rescue uh helicopter, I believe. Uh they both survived. Um the body of the master was found um some time later uh by another vessel and um taken ashore. But as I said at the beginning, the other four uh bodies were not um were not found. Now to me, this is an incredibly sad collision. Uh one that could have been avoided, and as I said at the beginning, it's all right with hindsight to say it could have been avoided, but if the just the basics, just the basics of the collision regulations were followed, and Verity took early action to to keep clear of policy. then this collision may not have happened. But I think that Verity was perhaps a bit reluctant to alter course to starboard, which in a crossing situation would normally be the most appropriate alteration of course to make in order to pass astern of the stand on vessel in a crossing situation. Rule 15 says to avoid passing ahead, but rule 15 does not say you can't alter course to port. So Verity did have options. She could have reduced speed and allowed Pulsi to pass ahead of her. She could have altered course to port and paralleled Pulse's course and allowed Pulsey to pass down her starboard side. So she had options but the option that perhaps she was forced into considering was the option to alter course to starboard. Now when I say forced into considering she wasn't forced into doing it but the VTS are starting to insinuate that that was the most appropriate action. But was it? You heard me say earlier on that Verity took action very very late. I think Verity's action was taken late because she was waiting until she had crossed the bow of the Iona I mentioned at the beginning of the podcast that Iona was on Pulsi's port quarter at just over a mile away. Now if she'd have come to Starboard earlier she might have passed too close ahead of the Iona. If she'd have come right round to Starboard in order to try and get astern of Iona as well as Pulsi she actually would have been contravening the traffic separation scheme lane. Yeah because she'd have literally had to have come 90 degrees to starboard and then she would be going against the general direction of traffic flow. So Iona's not mentioned as often as I think it should be Iona did nothing wrong. She was following the same traffic lane as the Pulsi but her presence there I think is what generated the doubt in the Verities Office of the Watch's mind as to what the best course of action would be to avoid collision with the Pulsi. Whether or not the Veriti's Office of the Watch did indeed track Pulsi we'll never know. We'll never know whether the Officer of the Watch on the Verity was aware of the risk of collision with the Pulsey. We're not too sure about that but as things developed visibly it would have been a problem. The Iona is a big ship she's a big cruise ship she'd have been well lit she's quite imposing when she comes down on you because not only her size but the amount of lights that she carries makes her a very very obvious high risk target. And to an officer of the watch on a very very small ship she would have looked even bigger and even more imposing. So to turn to starboard towards her to try and get round her stern as well may have been something that the officer of the watch on the Verity did not want to do. At the end of the day Rule eight C says if there's sufficient sea room an alteration of course alone may be the most effective way to avoid collision provided it's substantial made an ample time and does not result in another close quarters situation. Perhaps Verity's officer of the watch considered an alteration of course to starboard would result in another close quarters situation with the Iona. And that's why Verity left it too late to start to come to Starboard because they wanted to get across Iona's bow so that they could then come to starboard for the Pulsey and therefore not, if you like embarrass the cruise ship on Pulsey's port quarter. But I really don't understand what the officer of the watch I think it was the chief mate on the Pulsey was thinking as Pulsey altered course to port. The Officer Watch on Pulsey even told the VTS that they would be a little to starboard. Yep now interpret that how you like it's an incredibly ambiguous statement to make to VTS but be a little to starboard to me says that they would stay to perhaps the starboard side of that traffic separation scheme. So like the VTS operator I must admit reading that I would have made exactly the same assumption and that would be that Pulsi would maybe alter course to starboard to try and give a little bit more sea room for Verity to come round but instead of doing this her officer of the watch systematically altered course to port. In fact even worse the officer of the watch made several small alterations of course to port followed by one larger alteration of course to port. So initially it wouldn't have been obvious to Verity's officer of the watch that Pulse's chief mate was altering course to port instead of coming to starboard or even maintaining course and speed. The intervention at the last minute by VTS is not the first time that a VTS intervention has resulted in a collision albeit inadvertently resulted in a collision. Some of you may remember the case of the Paula Sea a small general cargo vessel that had a collision again with a much bigger bulk carrier in the Dover Straits. The Paula Sea altered course to starboard without checking her starboard quarter when a round turn to starboard was suggested by a VTS operator at Dover. The young officer the watch on the Paula Sea, having had that just mentioned to them, took it on board and immediately executed it, thinking to themselves well if VTS have said it, it must be a good thing to do he flung the helm to starboard, came around, didn't check his starboard quarter where the bolt carrier was and and and gave it a thumb. So inadvertently in that case VTS intervention caused the Paul of Sea to alter course in this respect here I think that the VTS intervention contributed twice to this collision. I think their late intervention when the two vessels were one point three miles away confused the situation. Confused the situation for two reasons. One the statements back from both ships were ambiguous and ambiguity at this late stage in the developing collision is not what you want. And two the fact that it was done over a duplex channel as explained earlier on means that one ship cannot hear the other talk so there is a disconnect between the ships but why are we talking about VHF here? Yeah the the MCA clearly state in MGN three two four that using a VHF for collision avoidance can have dire consequences and that ships should stick to complying with the collision regulations. The VHF side of things has been introduced by VTS neither Pulsi nor Verity attempted to contact one another on the VHF to avoid a pass. The VHF discussions were started by VTS and I don't think that's something that the report focuses in enough on yeah there are times as the report points out where VHF may be appropriate particularly when the two vessels are far enough apart without a risk of collision to perhaps discuss a developing situation. But once risk of collision has started to exist then the VHF becomes dangerous. The rules do not discuss VHF so rule 15 does not mention VHF none of the COLREGs mention VHF so no provision is given within the collision regulations for use of VHF now some textbooks do say that the use of VHF will become more commonplace as the identification of other vessels becomes much more efficient due to introductions of things like AIS where a positive identification of a vessel will allow you to contact that vessel by VHF but even still this collision happened recently when AIS had been in for a long time the AIS targets were clear for all to see yet the intervention and the introduction of VHF by the VTS seems to have cast doubt on what might have been a very very close near miss but a near miss that would have happened because of a late alteration of a small vessel who was afraid to come to starboard because of the presence of a very large cruise ship. Yes it wouldn't have been particularly tidy. Yes it would have been close but I think it may have been resolved by Veriti's offs of the watch once they crossed the Bower Iona, albeit late action it would have been in compliance with the basics to give way but not in compliance with Rule 8. In other words it wouldn't have been early enough action but nonetheless it might have avoided a collision. I can't seem to get my head past this introduction of the VHF ambiguity that was brought about when the VTS supervisor started to intervene by instructing Pulsey to come to starboard in the latter stages when they were only two minutes out of collision by saying come to starboard that VTS supervisor effectively may have caused the collision because that's what the chief officer on Pulsey did. He altered course to starboard he put the helm hard starboard but Pulsey was swinging to port. Pulsey was swinging to port and may have cleared Verity before that intervention from VTS remember what I said at the beginning of the podcast to be a VTS you must have the power of direction. And that power of direction may come from a port authority it may come from the flag state but nonetheless you can't be called a VTS now by the IMO unless you have the powers to direct. The Officer watch on the policy may have been aware of the German powers to direct within that VTS and therefore when VTS are saying come to starboard he's worried that if he ignores VTS then he might get into trouble for ignoring them. When really although his alteration of course to port was wrong, unjustified not in compliance with the coal regs and very very unseaman like in this case he may have been able to avoid Verity by continuing the swing to port. VTS saying harder starboard may have been what ultimately caused the collision it may have been what ultimately caused the pulse to penetrate the tank and hull of the Verity causing her to sink so quickly. Had the pulse have continued her turn to port she may have given the Verity a glancing blow and Veriti may have got away with minor damage but by coming to starboard the bulbous bow entered the wing tank and entered the hold causing that massive ingress of water now the timing of the actions taken by both Pulsy and Verity leaves a lot to be desired. Both of them left it way too late before they started to take any kind of action and so amazingly the report focuses on this now I find the putting of numbers against when action should be taken to be a really really dangerous thing to do but nonetheless the report has chosen to do this. It's chosen to do this by referencing to a publication that publication some of you may be um familiar with it's Cockcroft's a guide to the collision avoidance rules the uh the seventh edition now an MCA surveyor once said to me Cockcroft is an opinion I am the law and I think that is partly true because Cockcroft's opinion is based upon case law. The trouble with case law is that when these things are thrashed out in court they're not being thrashed out in court because they are pertinent to safety they are normally being thrashed out in court in order to apportion blame and liability and so therefore by going by case law you may skew what the seamen would do under the ordinary practice of good seamanship as required by the rules. But nonetheless using case law and using Cockcroft's book the MAIB have chosen to put in some numbers with regards to in particular being the stand on vessel. So they have come to the conclusion that as a giveaway vessel you should have taken action twelve minutes before the TCPA. Okay? Collision minus twelve yeah they say that action by the giveaway vessel is required. As for the stand on vessel then they're saying that somewhere between collision minus nine and collision minus five minutes, yep, the stand on vessel may have taken action under rule seventeen A2 by her manoeuvre alone and therefore avoided altering course to port for a vessel on her own port side by complying with rule seventeen C as well. They then go further to say that once you are inside collision minus five, so under five minutes before collision, that's when Rule seventeen B kicks in. That's when the action by the action to avoid collision cannot be made by the give way vessel alone. So Rule seventeen B says where the two vessels find themselves so close that collision cannot be avoided by the action of the give way vessel alone, the stand on vessel shall take such action as will best aid to avoid collision. It says that that kicks in at collision minus five these are all based on case law and the interpretation of that case law by the guide to collision avoidance rules but I find it incredible that the MAIB have decided to publish those times. Now they say it's a guide and they're they're at pains to say that that's not a definitive thing but nonetheless it's there and it's out there. I think it's out there I think it will be asked about in MA in MCA exams. I think those numbers are going to be banded about for a long time to come having featured in an MAIB investigation. I personally think that the publication of those times is dangerous. If you are the officer the watch on the ship and you feel obliged to take action to avoid collision before collision minus twelve then take that action to avoid collision yeah if you feel that the other vessel is not taking action as required by the rules you may take action before C minus 9. Yeah so much depends upon the sea room the size of the vessels the turning circle of the ships the visibility so much varies these times that the actual publication particularly of that C minus five that action required under 17B by the stand on vessel to to take action when she must take action at C minus 5 I find to be incredibly dangerous. But it's out there now and I would recommend that everybody has a look at this report in particular those of you going up for a COC soon it was published today Pulsy vs the Verity it's an MAIB report you can find it online easily. Read it get to grips with the situation and know what went on because I'm convinced that numbers and principles from this report are going to start to make their way into various parts of UK COC exams. But if they don't as far as I'm concerned that's great. I would never ever consider being that prescriptive in a report when it comes to when somebody reading that report particularly a junior officer reading that report when they should be taking action. Hope you found this podcast interesting it will open debate I'm sure as to whether or not the publication of those timings and whether or not some of my assumptions on how culpable I feel that VTS was for their intervention actually is. But nonetheless it's a good debate to have and hopefully those of you reading the report will get a lot from it. Remember that at the end of the day an MAIB report is there for reasons of safety not to apportion blame or liability and so that must be in the back of your mind at all times when reading this report thanks a lot guys for listening to the podcast I look forward to welcoming you all back soon but in the meantime have a great day everyone