ECDIS Safeguards Ignored at Muros Grounding

The UK Marine Accident Investigation Branch (UK MAIB) issued an investigation report on the grounding of the bulk carrier ‘Muros’, on  Haisborough Sand, in December 2016, providing a description of what happened and important lessons learned to prevent similar accidents in the future.

The incident

In the early hours of 3 December 2016, the bulk carrier Muros ran aground on Haisborough Sand, 8 miles off the Norfolk coast and the master’s attempts to manoeuvre the vessel clear were unsuccessful due to a falling tide. The vessel was re-floated 6 days later and was towed to Rotterdam for repair. When Muros grounded, the vessel was following a passage plan shown on its electronic chart and display information system (ECDIS). The plan had recently been revised on the ECDIS by the OOW who then used the system to monitor the vessel’s position.

Findings

1.  The vessel was following a planned track across Haisborough Sand. The passage plan in the ECDIS had been revised by the second officer less than 3 hours before the grounding and it had not been seen or approved by the master.

2.  A visual check of the track in the ECDIS using a small-scale chart did not identify it to be unsafe, and warnings of the dangers over Haisborough Sand that were automatically generated by the system’s ‘check route’ function were ignored.

3.  The second officer monitored the vessel’s position using the ECDIS but did not take any action when the vessel crossed the 10m safety contour into shallow water.

4.  The effectiveness of the second officer’s performance was impacted upon by the time of day and a very low level of arousal and she might have fallen asleep periodically.

5.  The disablement of the ECDIS alarms removed the system’s barriers that could have alerted the second officer to the danger in time for successful avoiding action to be taken.

Safety Issues

·         The intended track over Haisborough Sand was unsafe and grounding was inevitable given the vessel’s draught and the depth of water available

·         ECDIS safeguards were ignored, overlooked or disabled

·         The track over Haisborough Sand was not planned or checked on an appropriate scale chart

·         The revision of the passage plan conficted with the 2/O’s watchkeeping duties

·         The master directed the OOW to revise the route but he did not see or approve it

·         The OOW’s performance was probably adversely affected by a low state of alertness

·         The use of software to disable the audible alarm and the guard zone removed the ECDIS barriers intended to alert bridge watchkeepers to imminent danger

·         The use of the ‘standard’ chart view limited the information displayed and the reliance of visual checks when passage planning was prone to error

·         ECDIS use on board Muros was not as envisaged by regulators or equipment manufacturers.

Actions taken 

UK MAIB has commenced a safety study, in collaboration with the Danish Maritime Accident Investigation Board, to provide further research on the reasons why seafarers are utilising ECDIS in ways that are often at variance with the instructions and guidance provided by the system manufacturers and regulators.

The overarching objective of the study is to provide comprehensive data that can be used to improve the functionality of future ECDIS systems by encouraging the greater use of operator experience and human centred design principles.

Explore more by reading the full report:

https://www.gov.uk/maib-reports/grounding-of-bulk-carrier-muros

https://assets.publishing.service.gov.uk/media/59e6020ced915d6aaafc2eb8/MurosCombinedAnnexes.pdf

Marine engine subcontractor not liable towards shipowner under product liability law

 

 

Introduction

On September 13 2017 the Supreme Court passed down its decision in a product liability appeal case between a manufacturer of marine engines and a Danish ship owner. The pivotal question before the Supreme Court was the distinction between damage to:

• the defective product itself, which was not compensable under product liability law; and
• other property, which was compensable.

Facts

A plaintiff ship owner (S) ordered 10 gas carrier new buildings between 2007 and 2010, seven of which were sister ships delivered by a Korean shipyard (Y). The defendant, a marine engine manufacturer (M), was engaged as a subcontractor.

The marine engines were fitted with an electronic cylinder lubricating system designed to reduce friction within the cylinder, as the pistons moved to and fro, thus allowing for better engine durability. Although more expensive than mechanical lubricating systems, the reduced lubricant consumption enabled by the electronic system made it the best economic choice, with an estimated payback period of less than two years.

However, after a period of service, the piston crown, liner and rings had been exposed to extraordinary wear damages, requiring overhaul and maintenance work to be carried out earlier than anticipated. S submitted that the considerable wear damages inflicted on seven of its ships' engines had been caused by a defect in the lubricating system and claimed $4,426,557.43 in damages for the losses incurred, including:

• direct and indirect expenses (ie, spare parts, repair costs and port and pilot fees);
• time loss; and
• bunker expenses.

When the contract was drawn up, the electronic lubricating system had been applied only in larger marine engines of 60, 80 and 90 cm and not in the smaller 35 cm engines in question.

Given the absence of a contractual relationship between S and M, S brought a direct claim against M under the rules on product liability developed in Danish case law. When the claim for damages was brought against M, the guarantee period and the period of notice for non-conformities had elapsed under the contracts between S and Y and Y and M.

A key hurdle for S was convincing the court that the wear damages, which were allegedly caused by M's lubricating system, constituted 'product damage' under Danish product liability law (ie, that the product delivered by M had inflicted damage to property other than that which had been delivered, and not merely to the product itself).

While the self-inflicted damage could have caused a contractual claim between S and Y for non-conformities, a product damage could merit a product liability claim for damages directly against M.

S argued that as the electronic lubricating system in both technical and economic terms could be distinguished from the engine and replaced by a different mechanical lubricating system, the lubricating system and the engines delivered by M constituted distinct and individual components. This was further supported by the fact that on choosing the engines, S was presented with a choice between the electronic lubricating system and a mechanical system. The damage therefore constituted product damage inflicted to "other property".

M argued that the damage in question should be considered damage to the product itself. The fact that the engines could be separated into component parts did not, in the defendant's view, merit a finding that the system had been sold and delivered as an individual product. M further argued before the Supreme Court that the relevant test was to examine what M had sold as a unit to its contractual counterpart Y.

Maritime and Commercial High Court decision

The Maritime and Commercial High Court found that the electronic lubricating system constituted a product, rendering the damages inflicted on the engine components product damage to other property, as required under product liability law.

The court explicitly emphasized that:

• the use of the electronic lubricating system when the contract was made should be considered a novel development for such smaller types of marine engines; and
• M had promoted the system as a distinct product in a special campaign with the potential of facilitating considerable savings.

Supreme Court decision

The Supreme Court reversed the first-instance decision and explicitly distanced itself from this rationale, stating that the fact that S had chosen the electronic lubricating system in question could not justify such a result.

On the contrary, the court found it apposite to reiterate its previous decision in Masnedø (published in UfR 2010.1360 H), wherein it had decided whether a producer of a defective component, which had been integrated into a product acquired by a later buyer, could be held liable under the Danish product liability rules.

Pursuant to Masnedø, the relevant test when distinguishing between the product in question and other property is to consider what has been sold as a unit to the plaintiff by its contractual counterpart.

Accordingly, in order to determine whether the damage constituted damage to other property, the correct test was to consider what had been acquired as a unit by S – in this case, the ship – as opposed to what had been delivered by M to Y.

The Supreme Court noted that the defendant's counsel had not made this point during the proceedings. However, this did not change the final outcome, as the court went on to find that the marine engines and the appurtenant electronic cylinder lubricating system had been sold as a single unit to Y by M. The product sold by M had therefore not caused damage to other property.

Therefore, the losses claimed for by S, to the extent that they had been caused by an alleged defect in the lubricating system, constituted damage to the product itself and, as such, were not recoverable under product liability law.

Comment

To a non-Danish reader, it is noteworthy that the Danish product liability regime is twofold. Whereas the EU Product Liability Directive (85/374/EEC) has been implemented in Danish law by statute (Produktansvarsloven), the other regime is a result of Danish case law as developed and interpreted by the courts. Compared to the EU directive, the latter regime further permits compensation for damage to property that is not ordinarily intended for private use and consumption and does not make compensation contingent on whether the property was in fact used privately (compare with Article 9(b)(i-ii) of the EU directive).

In general product liability law, the delimitation between liability for the non-conformity of goods covered by the Danish Sale of Goods Act and the rules on product liability for defective products remains a classic conundrum.

The producer will be held liable for damage caused by a defect in its product, commonly defined as physical damage to property other than the product itself. Cases wherein the product causes damage to itself are therefore assessed outside the scope of the product liability regime. Such damages must instead be determined under contract law and the rules on the non-conformity of goods.

In this particular case, the Supreme Court underlined the test previously set out in Masnedø, stipulating that the correct test when making the distinction is to examine what the claimant has acquired from its immediate contractual counterparty. Damage caused by a component part to an end product in which the component is integrated can provide grounds for a contractual claim only against the seller. In the case at hand, there were no contractual relations between S and M, and the unit that S had acquired from Y was a ship. The claim therefore had no merit under product liability law.

 

USCG raleases El Faro final report

The US Coast Guard issued an official investigation report on cargo vessel El Faro, which sank along with its 33 member crew, in October 2015, becoming one of the worst maritime disasters in US history. The investigation report on El Faro cargo vessel found that the captain underestimated the strength of a hurricane and overestimated the ship’s strength on a trip between Florida and Puerto Rico. Also, ship’s owner, Tote Maritime Inc., had not replaced a safety officer and had violated regulations regarding crew rest periods and working hours.

The incident

At the time of the sinking, EL FARO was on a U.S. domestic voyage with a full load of containers and roll-on roll-off cargo bound from Jacksonville, Florida to San Juan, Puerto Rico.

As EL FARO departed port on September 29, 2015, a tropical weather system that had formed east of the Bahamas Islands was rapidly intensifying in strength. The storm system evolved into Hurricane Joaquin and defied weather forecasts and standard Atlantic Basin hurricane tracking by traveling southwest. As various weather updates were received onboard EL FARO, the Master directed the ship southward of the direct course to San Juan, which was the normal route.

The Master’s southern deviation ultimately steered EL FARO almost directly towards the strengthening hurricane. As EL FARO began to encounter heavy seas and winds associated with the outer bands of Hurricane Joaquin, the vessel sustained a prolonged starboard list and began intermittently taking water into the interior of the ship. Shortly after 5:30 AM on the morning of October 1, 2015, flooding was identified in one of the vessel’s large cargo holds. At the same time, EL FARO engineers were struggling to maintain propulsion as the list and motion of the vessel increased. After making a turn to shift the vessel’s list to port, in order to close an open scuttle, EL FARO lost propulsion and began drifting beam to the hurricane force winds and seas.

At approximately 7:00 AM, without propulsion and with uncontrolled flooding, the Master notified his company and signaled distress using EL FARO’s satellite distress communication system. Shortly after signaling distress, the Master ordered abandon ship. The vessel, at the time, was near the eye of Hurricane Joaquin, which had strengthened to a Category 3 storm. Rescue assets began search operations, and included a U.S. Air National Guard hurricane tracking aircraft overflight of the vessel’s last known position. After hurricane conditions subsided, the Coast Guard commenced additional search operations, with assistance from commercial assets contracted by the vessel’s owner. The search located EL FARO debris and one deceased crewmember. No survivors were located during these search and rescue operations.

Conclusions – Probable Causes

·         TOTE did not provide the tools and protocols for accurate weather observations. The Master and navigation crew did not adequately or accurately assess and report observed weather conditions.

·         EL FARO Incurred a Severe Port List and Lost Propulsion : At 5:54 AM on October 1, the Master altered course to intentionally put the wind on the vessel’s starboard side to induce a port list and enable the C/M to access and close the Hold 3 starboard scuttle. This port list was exacerbated by his previous order to transfer ramp tank ballast to port, and resulted in a port list that was greater than the previous starboard list and a dynamic shifting of cargo and flood water.

·         The loss of propulsion resulted in the vessel drifting and aligning with the trough of the sea, exposing the beam of the vessel to the full force of the sea and wind.

·         The EL FARO crew did not have adequate knowledge of the ship or ship’s systems to identify the sources of the flooding, nor did they have equipment or training to properly respond to the flooding.

·         A lack of effective training and drills by crew members, and inadequate oversight by TOTE, Coast Guard and ABS, resulted in the crew and riding crew members being unprepared to undertake the proper actions required for surviving in an abandon ship scenario.

·         After 5:43 AM on October 1, the Master failed to recognize the magnitude of the threat presented by the flooding into the hold combined with the heavy weather conditions. The Master did not take appropriate action commensurate with the emergent nature of the situation onboard EL FARO, including alerting the crew and making preparations for abandoning ship.

·         When the Master made the decision to abandon ship, approximately 10 minutes before the vessel sank, he did not make a final distress notification to shore to update his earlier report to TOTE’s Designated Person Ashore that they were not abandoning ship. This delayed the Coast Guard’s awareness that EL FARO was sinking and the crew was abandoning ship, and impacted the Coast Guard’s search and rescue operation.

·         The cumulative effects of anxiety, fatigue, and vessel motion from heavy weather degraded the crew’s decision making and physical performance of duties during the accident voyage.

·         EL FARO’s conversion in 2005-2006, which converted outboard ballast tanks to fixed ballast, also severely limited the vessel’s ability to improve stability at sea in the event of heavy weather or flooding.

·         Although EL FARO’s open lifeboats met applicable standards (SOLAS 60), they were completely inadequate to be considered as an option for the crew to abandon ship in the prevailing conditions.

Recommendations

Among others, it is recommended that Commandant direct a regulatory initiative:

·         to review U.S. regulations, international conventions, and technical policy to initiate revisions to ensure that all ventilators or other hull openings, which cannot be closed watertight or are required to remain normally open due to operational reasons such as continuous positive pressure ventilation, should be considered as down-flooding points for intact and damage stability.

·         to eliminate open top gravity launched lifeboats for all oceangoing ships in the U.S.commercial fleet.

·         to require that a company maintain an onboard and shore side record of all incremental vessel weight changes, to track weight changes over time so that the aggregate total may be readily determined.

·         to require review and approval of software that is used to perform cargo loading and securing calculations.

·         to require that all Personal Flotation Devices on oceangoing commercial vessels be outfitted with a Personal Locator Beacon.

·         to develop a shipboard emergency alert system that would provide an anonymous reporting mechanism for crew members to communicate directly with the Designated Person Ashore or the Coast Guard while the ship is at sea.

·         to request that NOAA evaluate the effectiveness and responsiveness of current National Weather Service (NWS) tropical cyclone forecast products, specifically in relation to storms that may not make landfall but that may impact maritime interests.

·         to require that all cargo ships have a plan and booklets outlining damage control information. 

·         to update 46 CFR to establish damage control training and drill requirements for commercial, inspected vessels.

·         to require electronic records and periodic electronic transmission of records and data to shore from oceangoing commercial ships.

·         to explore adding an OCMI segment to Training Center Yorktown’s Sector Commander Indoctrination Course for prospective officers who do not have the Prevention Ashore Officer Specialty Code, OAP-10. 

·         to update NVIC 2-95 and Marine Safety Manual Volume II to require increased frequency of ACS and Third Party Organizations (TPOs) direct oversight by attendance of Coast Guard during Safety Management Certificate and Document of Compliance audits.

·         to establish and publish an annual report of domestic vessel compliance.

·         to implement a policy requiring that individual ACS surveyors complete an assessment process, approved by the cognizant OCMI, for each type of delegated activity being conducted on behalf of the Coast Guard. 

·         to explore adding a Steam Plant Inspection course to the Training Center Yorktown curriculum.

·         to require that all existing cargo vessels meet the most current intact and damage stability standards.

Explore more by reading the full report at,

https://www.safety4sea.com/wp-content/uploads/2017/10/UCSG-Steamship-El-Faro-sinking-and-loss-of-the-vessel-with-33-persons-missing-northeast-of-Acklins-and-Crooked-island-2017_10.pdf