Journal of Maritime Law & Commerce, Vol. 41, pp. 1-56, 2010
77 Pages Posted: 6 Sep 2009 Last revised: 23 Dec 2011
Date Written: September 6, 2009
The U.S. National Strategy for the Marine Transportation System highlights the importance to the nation of maintaining an effective, efficient and safe Marine Transportation System (MTS). That system comprises vessels, waterways, ports, intermodal connections, related infrastructure and the system’s users. Within the vital waterways of the nation’s MTS are some 25,000 miles of commercially navigable channels. Some of those channels are gifts of nature. Others were wrested from nature by resourceful and determined engineers charged by Congress to support and facilitate the nation’s security and maritime commerce. Many of those channels are narrow, forcing vessels into close and sometimes dangerous proximity.
Rule 9 of the International Regulations for Preventing Collisions at Sea (COLREGS) and the U.S. Inland Navigation Rules prescribes a unique collision prevention scheme for “narrow channels and fairways.” When it applies, Rule 9 of these two sets of “rules of the road” imposes a number of distinct obligations on vessel operators. For Rule 9 or any other collision avoidance rule to be effective, however, mariners must know when and where the rule applies. Unnecessary risk is injected into a situation whenever the rules fail to provide the mariner with sufficient direction or guidance to determine which rules apply to any given situation. Ambiguity in the rule may result in the operators of approaching vessels coming to conflicting conclusions regarding the rule’s application or in delayed collision avoidance maneuvers while those operators negotiate a solution to what is otherwise a doubtful, and often a rapidly developing, situation.
The international conference that drafted the 1972 COLREGS rejected a proposal to include a definition of “narrow channel” and the United States Congress simply ignored the matter. The U.S. National Transportation Safety Board (NTSB), in its investigation into a collision between two towboats, one of which concluded the inland rivers location fell within the narrow channel rule while the other concluded it did not, the Board reasoned that it does “operators little good to learn months after an accident that a court has ruled that a particular portion of a waterway, under a particular set of circumstances was or was not a 'narrow channel' under the rules, and that the narrow channel rule should or should not have been applied by the parties involved in the accident.”
The U.S. Coast Guard concurred with the NTSB’s recommendation to provide more guidance, but it qualified its concurrence. In a letter from the Coast Guard Commandant to the NTSB chair, the Coast Guard explained that “[to] define a ‘narrow channel’ so as to apply to all situations would be virtually impossible. It is possible, however, that the factors to be considered in determining when to apply the Rule can be bounded and broad guidance issues to mariners.” Although the project languished for years, the Coast Guard brought the issue before the U.S. Navigation Safety Advisory Council (NAVSAC) in the spring of 2009. The Coast Guard’s task statement asked NAVSAC to provide advice on whether there is a need to designate waterways as narrow channels and, if so, to identify criteria by which waterways can be so designated.
This Article takes up that task. It begins by examining the risks posed by vessel navigation in narrow channels and fairways in the United States and the risk management measures employed to eliminate or reduce those risks, including the narrow channel rule. The Article then identifies problems with the existing rule and examines several alternatives to address the problems. It concludes that mariners deserve clearer guidance on how to identify the waters where Rule 9 applies than they have so far been given. To provide the needed guidance, the Coast Guard should initiate rulemaking to formally designate waterways in the United States where Rule 9 applies. An easier, but less effective, alternative would be for the Coast Guard to publish a list of prior determinations on the status of U.S. waterways as narrow channels or fairways, together with a guidance document setting out specific criteria to apply in making determinations for waters not yet the subject of a determination.
Keywords: Marine Transportation System, risk managment, rules of the road, narrow channels, fairways, Coast Guard, collisions, allisions
JEL Classification: K19, K29, K32, L92
Suggested Citation: Suggested Citation
Allen, Craig H., Taking Narrow Channel Collision Prevention Seriously to More Effectively Manage Marine Transportation System Risk (September 6, 2009). Journal of Maritime Law & Commerce, Vol. 41, pp. 1-56, 2010. Available at SSRN: https://ssrn.com/abstract=1469217