backVessel owners and mariners alike have lobbied the U.S. Coast Guard for years to recognize electronic navigational charts and publications as satisfying the marine chart carriage requirements of Titles of 33 and 46 of the Code of Federal Regulations. The failure to maintain the necessary and appropriate paper charts, as required by the regulations, can become the focus of any post casualty investigation and potentially render the vessel liable in any marine casualty (collision, allision, grounding, etc.). On February 3, 2016 the Coast Guard issued Navigation and Vessel Inspection Circular No. 01-16 (NVIC No. 01-16) recognizing the use of electronic charts as compliant with the chart regulations, which were previously interpreted as requiring physical, paper charts aboard the vessel.
What at first may appear to be a minor change has the potential to have a significant impact for vessels servicing the offshore oil and gas industry. These offshore supply vessels and crewboats can be more susceptible to running afoul of the chart carriage requirements because, within a relatively short period time, they may call at several terminals and docks across a region; navigate several rivers, channels, and bays; and be exposed to numerous navigational hazards such as platforms, wellheads, and jetties. Maintaining current paper charts for each area and appropriate Notices for Mariners can be a daunting task for these vessels, especially where frequent crew changes may create confusion as to which documents stay on board and which go with the master.
The use of electronic charts could alleviate this issue by providing the vessel owner greater control over the maintenance and updating of the charts and allowing the vessel owner to establish a more efficient program to ensure regulatory compliance. All of this has the potential to affect a vessel owners liability in the event of a marine casualty. While this may result in a net benefit for the vessel owner, the use of electronic charts is not without risk and may require a vessel owner to assume greater management and oversight over the vessels operations.
Electronic Charts and Publications Now Equivalent to Paper Versions
U.S. flagged vessels engaged solely in domestic voyages have historically been required to maintain paper charts published by an official hydrographic agency. These vessels predominately included those involved in the Jones Act trade ( e.g., U.S. port to U.S. port) and domestic oilfield support vessels ( e.g., crewboats and offshore supply vessels servicing domestic offshore oil and gas facilities). NVIC No. 01-16 now allows these vessels to satisfy their regulatory obligation to maintain currently corrected paper charts and publications through use of approved electronic charts.
The U.S. Coast Guards change was driven by several factors. Several of the necessary paper publications were becoming only available in electronic format. Additionally, the U.S. Coast Guard recognized that official electronic charts provide substantially more information to the mariner, and therefore may enhance navigational safety beyond that of official paper charts. NVIC No. 01-16 at pg. 4. For years many vessels have used Electronic Chart Display and Information Systems (ECDIS) to navigate. ECDIS, as it name implies, stores and displays electronic charts and allows the vessels master to plot courses; and it can provide the mariner with substantially more navigational information than a paper chart. Ultimately, the U.S. Coast Guard recognized their use has the potential to reduce marine accidents.
The Significance of Navigational Charts in Maritime Litigation
The ability to use electronic charts in lieu of paper charts is significant. A government investigator will request an inventory of a vessels navigational charts and publications at the beginning of any investigation; and a similar request is standard in litigation discovery requests. Where a vessel owner is unable to demonstrate compliance with the charting requirements for a particular voyage, what may amount to an obscure technical violation can turn into a major issue and threaten to overshadow other elements of a caseeven where the absence of a required or updated chart played little role in the incident. Thus, being able to demonstrate that the required charts are on board a vessel can avoid much scrutiny.
A principal defense in any significant marine casualty is the vessel owners right to limit its liability in the event of a marine casualty to the post-incident value of the vessel and any freight pending. 46 U.S.C. 30501 et seq. A vessel owner may be able to limit its liability to a fraction of the total damages. This right, however, is lost where the vessel owner and/or the shoreside management had privity and knowledge of the fault or negligent conduct which caused the allision, collision, etc. 46 U.S.C. 30505.
Several courts have held the vessel owner responsible for failing to ensure a vessel was equipped with the appropriate navigational charts and, therefore, not entitled to limit its liability. In In re Intern. Marine, a collision occurred between offshore supply vessels. F.Supp.2d 733 (E.D.La. 2009). The court denied limitation for the owner of the M/V INTERNATIONAL TITAN because the vessel did not have proper navigational charts on the vessel and did not have access to warnings specifically intended for vessels navigating the Calcasieu channel where the collision took place. Id.at 741. The court held the vessel owner either knew or should have known the vessel did not have the necessary charts; and if it had provided the charts to the vessel, the captain may have been aware of the warnings and avoided the collision. Id.; see also In re Texaco, 570 F.Supp. 1272, 1291 (S.D.Tex. 1983) (vessel owner breached its non-delegable duty of seaworthiness in failing to ensure, at a minimum, that an adequate system is in place for updating navigational charts). Thus, the failure to maintain the required charts and publications on board a vessel could deprive the vessel owner of a significant defense.
Even where limitation of liability is not an issue, the failure to carry the navigational charts as required by the regulations may give rise to the application of the PENNSYLVANIA rule under the U.S. general maritime law. The PENNSYLVANIArule provides that when a vessel involved in an accident is shown to have breached a statute or regulation intended to prevent collisions, the vessel must show not only that its breach was not a contributory cause of the accident but that it could not have been. See THE PENNSYLVANIA v. Troop,86 U.S. 125 (1973). Regulations requiring the current navigational charts and publications are intended to prevent collisions and other marine casualties. As such, a violation of the chart regulations presumptively renders the vessel at fault and requires the vessel owner to accomplish the difficult task of proving the negativethat the absence of a proper chart could not have caused the incident. While not insurmountable, such a violation could substantially increase a vessel owners liability.
Reliance on Electronic Charts Raises New Issues in Maritime Litigation
The effective use of electronic charts has the potential to reduce a vessel owners exposure by allowing it to more easily demonstrate regulatory compliance. However, technological advances also bring new issues. Vessel owners must carefully weigh the additional risk and responsibility they may be assuming by relying on electronic charts.
By storing the navigational charts in the vessels navigational electronics and/or the watchstanders laptop, a vessel owner is able to avoid the lost or missing chart issues. The vessel owner also may be able to readily to push updates to the electronic charting system or distribute them via e-mail. This may allow a vessel owner to reduce instances where the vessel lacks the required charts and may be liable for technical regulatory violation. Conversely, the ability to provide updated and corrected electronic charts at a push of a button may impose a heightened burden to timely provide such information. It no longer may be sufficient to have the port agent provide updated charts when the vessel makes its next call. Vessel owners now may be expected to provide real-time information and updates.
The vessel is likely to be non-compliant with the regulations if the electronic chart cannot be accessed. What if the laptop computer or other electronic charting system crashes? NVIC-01-16 addresses this issue by requiring a vessel to have a redundancy system, which can be either a second electronic charting system with an independent power supply or a regulatory compliant folio of paper charts and publications. The redundancy system must also be compliant with the required charts potentially doubling the efforts required to ensure compliance and increasing the risk that a problem might occur.
What if the mariner cannot find the chart because he or she either does not know how to identify the correct map in the database or use the electronic charting system? Too many stored charts could create confusion as to which charts are corrected and appropriate for a given area. A vessel owners policy regarding the use of personal laptop computers on navigational watches may further raise issues regarding consistency of charts and access for all watchstanders. Parties will surely argue that not being able to readily access the chart is tantamount with not having the chart at all. Organization of these electronic charts and clear instruction on the manner in which they are to be stored will be essential.
NVIC-01-16 addresses mariner proficiency in the electronic charting system. It requires all mariners in charge of a navigational watch aboard a vessel that relies on electronic charting to obtain a certificate of completion from an approved ECDIS course and have the appropriate endorsement on their Merchant Mariner Credentials. Each credentialed crewmember must be familiar with installed navigation equipment prior to assuming their duties. NVIC No. 01-16 at pg. 7. This requires the vessel operator to document watchstander competency with the manufacturers standards, users manuals, and company policies regarding the electronic charts use.
The use of electronic charts, which has many potential benefits, further blurs the line between the shoreside management of a vessel and the masters navigation of the vessel. To effectively implement electronic charts with a fleetand satisfy the requirements of NVIC-01-16shoreside management must assume greater responsibility for the management of these charts and training of those mariners in charge of navigational watches. However, by exerting greater control over the charting process, the vessel owner potentially risks greater liability in the event of marine casualty. This will likely lead to an increased focus on the vessel owners actions (or inactions) in discharging these heightened responsibilities. Vessel owners are encouraged to carefully assess their reliance on electronic charts in light of the new Coast Guard guidance and fully consider the additional responsibility and risk they may be assuming.