page Vivian Forbes PhD (UWA), MA (Curtin), FMSIA Adjunct Associate Professor, Curtin University and Map Curator, University of Western Australia papers ECDIS AND POTENTIAL LEGAL IMPLICATIONS: PROCEEDING WITH CAUTION The navigation chart in use by the ship did not show the temporary replacement of a cardinal beacon with a temporary lateral buoy… The pilot’s electronic chart system was placed at a significant distance from where he was standing … Abstract The electronic chart and associated systems represents an entirely new approach to marine navigation Such a system is no longer regarded as simply a computergenerated display on a monitor designed to replace paper charts An Electronic Navigation Chart (ENC) and Electronic Chart Display Information System (ECDIS) are real-time navigation concepts that integrate electronic chart data with various types of positioning and navigation systems, including Global Positioning Systems (GPS), Radar/Automatic Radar Plotting Aids (ARPA), shipboard Automated Identification System (AIS) and the innovative International Ship Facility Security Code (ISPS) – an integrated, total bridge navigation system In 1987, the Harmonisation Group of IMO/IHO was established to develop a performance standard for ECDIS It was perceived then, that ECDIS would be recognised as a legal equivalent to the folio of paper charts that were required to be carried on ships in accordance with the Safety of Life at Sea (SOLAS) Convention, namely, that it may be used instead of the paper charts ECDIS, as an automated decision-making aid is capable of continuously determining a vessel’s position in relation to the adjacent land, charted objects, unseen hazards, other vessels in the vicinity and the prevailing marine environment ■ At the time of departure was the ship ‘seaworthy’ in all respects? ■ Were the navigational aids on board adequate and in good working order? ■ Was the Officer guilty of incompetence within the meaning…? ■ Was the grounding deliberate? ■ Was there a presence of an appropriate level of Bridge Resource Management? It concludes that whilst it is inevitable that ECDIS will be universally adopted such a system must not lull the mariner into a false sense of security The system must not be seen as a substitute for the observance of good seamanship nor for neglect of an effective watchkeeping throughout a voyage ECDIS and the paper chart, in tandem, must be seen as more than an aid to navigation Reliance THE HYDROGRAPHIC JOURNAL on computer-assisted navigation is not a substitute for the observance of good seamanship and for the neglect of maintaining an effective lookout at all times during the voyage Introduction The words: ‘Land Ahoy’ shouted from the forecastle (foc’sle) or crow’s nest of a ship when land was sighted is a distant memory Now, through the speaker in the computer of the integrated bridge system, mutters a soft, synthesised-human voice warning: ‘Danger Ahead’ that accompanies the announcement of alarms and flashing lights related to the approach to hazards during a voyage The mariner is now awash with computer jargon and petrified by legal terminology For centuries, the sextant, the magnetic compass, the hand-lead line and the nautical chart were basic tools for marine navigation In the latter-half of the 20th Century, more sophisticated techniques were developed for position-finding at sea, such as Radar, DECCA, LORAN, Satellite Navigation and Global Positioning Systems (GPS) By the late-1990s, new technology evolved that combined chart reading with position-finding, making navigating easier and more exact No 111 January 2004 ECDIS and Potential Legal Implications This paper examines the issues that might arise in a typical court of Marine Enquiry especially in the context of these leading questions and statements There are two basic types of electronic navigation charts Those that comply with the International Maritime Organisation’s (IMO) requirements for Safety of Life at Sea, 1974 (SOLAS) Convention class vessels, known as the Electronic Chart Display and Information System (ECDIS), and all other types of electronic charts, regarded generically as, Electronic Chart Systems (ECS) These concepts represent an entirely new approach to maritime navigation and offer a versatile and proven system for any environment The electronic chart is a relatively new technology that provides significant benefits in terms of navigation safety and improved operational efficiency – in a real-time navigation system that integrates a variety of information that is displayed for, and interpreted by, the user It is an automated decision-making aid capable of continuously determining a vessel’s position in relation to land, charted objects, aids-to-navigation, and unseen hazards by utilising an integrated bridge navigation system For an ECDIS to meet a minimum level of reliability and functionality, the IMO has developed a performance standard for the system This standard specifies how an ECDIS must work in order that it serves as an adequate replacement for the paper nautical chart The IMO Performance Standards permit National Maritime Safety Administrations to consider ECDIS as the functional equivalent to charts required by Chapter 20, Regulation V, of the 1974 SOLAS Convention In conjunction with the development of IMO Performance Standards for ECDIS, the International Hydrographic Organisation (IHO) has developed technical standards related to the digital data format, and specifications for ECDIS content and display They are IHO Special Publication 52 (S-52) that includes appendices describing the means/process for updating, colour and symbol specifications, and a glossary of ECDISrelated terms; and IHO Special Publication 57 (S-57) includes a description of the data format, product specification for the production of ENC data, and an updating profile page papers IMO has specifically requested that member governments encourage their National Hydrographic Offices (Services) to produce electronic navigational charts (ENCs) and provide the associated updating service as soon as possible, and to ensure that manufacturers conform to the performance standards when designing and producing ECDIS Herein, are latent and potential legal implications The purpose of this paper is to highlight the legal implications for the user of ECDIS, to discuss the roles of the producers and suppliers of the system and suggest that users proceed with caution It warns manufacturers, mariners and other users of the legal implications that are inherent in an integrated bridge navigation system National Hydrographic Offices (NHO) and the Nautical Chart ECDIS and Potential Legal Implications If a maritime nation is to maximise the benefit to be obtained from the potential wealth of the adjacent seas and its legal continental shelf, then it must systematically search for and assess that wealth Tools for use in this search include the nautical chart and the bathymetric map The latter, in some instances may be the responsibility of a national mapping authority; the former, falls within the gambit of the NHO One of the highest priorities of a maritime nation and its NHO should be the production of modern, accurate, upto-date nautical charts Facilities for the progressive updating of these charts must also exist Priorities for updating of information would include the accurate representation on these nautical charts of all ports, harbours and their approaches, roadsteads and anchorages, sea-lanes and recommended tracks Further recognition must be given to convergence areas such as those adjacent to light-vessels in traffic separation zones and to offshore installations such as oilrigs, oil-producing platforms and other artificial islands Consideration should also be given to the surveying and charting of less densely navigated areas close inshore and offshore, and finally, to bathymetric and marine scientific surveys and investigations in the oceans and seas surrounding the coastline The Hydrographic Dictionary of the International Hydrographic Organisation (IHO) defines a chart as being a map specially designed to meet the requirements of marine navigation The chart portrays the depth of water, the nature of the seabed, elevations (heights) of structures for example, lighthouses and towers, and terrain (conspicuous to the mariner from seaward), configurations and characteristics of the coasts and dangers and aids to navigation A chart is one of the end products of a hydrographic survey It is an actual instrument of No 111 January 2004 navigation, just as much as a chronometer, compass, parallel ruler and pair of dividers, radar, satellite navigator and sextant are tools that aid marine navigation A chart shows such information as the least depth, underwater dangers and hazards of the seabed that may pose a potential endanger to the ship and lives of its crew Each chart is compiled to a natural scale The chart is an informative document that accurately portrays the nature and shape of the seabed, and it is complete in all essential detail The relative position of each item of data must be portrayed and maintained with the highest degree of accuracy The chart must be compatible with all other charts in the series Accurate tidal data, tidal streams, seabed data and magnetic variation should be shown A suite of publications, for example, Sailing Directions or Pilots and List of Lights complement the information portrayed on charts The revised SOLAS Chapter V Regulation 19.2.1.4 states that all ships irrespective of size must have nautical charts and nautical publications to plan and display the ship’s route for the intended voyage and to plot and monitor positions throughout the voyage Under the new regulation ECDIS may be accepted as meeting the chart carriage requirements of this subparagraph For a ship to depend totally on ECDIS for navigation, (as opposed to relying on paper charts); under SOLAS Chapter V Regulation 18, that system must conform to the relevant performance standards of the International Maritime Organisation (IMO) presently specified in Resolution A.817(19), Performance Standards for ECDIS, as amended and in particular: ■ Type approval of the hardware ■ The use of official electronic charts ■ Back-up arrangements ■ Training In accordance with the 1982 United Nations Convention on the Law of the Sea, which entered into force on 16 November 1994, coastal and island states are required to deposit with the United Nations, copies of the large-scale charts, upon which is delineated the territorial sea baseline system The baseline or datum is used by that state to measure the seaward limits of its maritime jurisdictional zones, for example, the territorial sea, contiguous zone and the Exclusive Economic Zone (EEZ) The charts must be officially recognised by that state It has been suggested that, where the scale of the chart permits, maritime jurisdictional zones – international as well as national – should be delineated This premise could extend to delimited maritime boundaries as well (Forbes, 1987 and 1995) This point alone illustrates that the nautical chart is more than an aid to navigation In the event of an accident, the chart may be tabled as a relevant document in the Court of Marine Inquiry Cooperation in the International Arena Worldwide, there are 22 national Hydrographic Offices; seven international organisations; six major ENC/EC producers; two producers of ECS/ECDIS; two discussion fora; and seven other useful links that are involved either directly or indirectly with electronic charting The United Kingdom Hydrographic Office (UKHO) is one of the world’s premier suppliers of navigational paper charts and publications to international shipping with a folio of over 3,300 charts and 220 publications Over three quarters of the UKHO’s charts and publications are sold to the merchant marine worldwide to enable compliance with SOLAS regulations It has been suggested that it will be several years before there is global ENC coverage In the interim, the IMO has approved the use of raster charts, so long as paper back-up is carried UKHO raster charts – the ARCS (Admiralty Raster Chart Series) series – are scanned images of traditional paper charts delivered on a CD-ROM and updated weekly ARCS offer almost global coverage At the 6th IHO/WEND Meeting (Norfolk, Virginia, 18-19 May 2001), it was noted that ENC coverage did not meet user demand and that this was inhibiting the acceptance of ECDIS In particular, concern was expressed about the relatively few ENCs that were available for commercial use at that time It was therefore decided that WEND should undertake a study to determine the state of ENC coverage It was noted that the study should also include: ■ The future plans for intensifying ENC production ■ The relationship of commercially available ENCs to the main shipping routes of the world ■ The need for assistance and support, including training to meet these requirements The International Hydrographic Bureau therefore issued CL 67 of 2002 requesting Member States to provide information concerning their ENC coverage The results of this study, which includes cells that are planned and in production were presented Manufacturers, many of whom have Websites, offer catalogues that provide information concerning ENC cell that are commercially available THE HYDROGRAPHIC JOURNAL page Electronic Chart and Electronic Navigation System Vector Electronic Charts (ENC) ENCs are vector charts that also conform to IHO specifications They are compiled from a database of individual items (‘objects’) of digitised chart data which can be displayed as a seamless chart When used in an electronic navigation system, the data can then be reassembled to display either the entire chart image or a user-selected combination of data ENCs are intelligent in that systems using them can be programmed to give warning of impending danger in relation to the vessel’s position and movement Accuracy and Status of GPS/DGPS The GPS standard positioning system available to civilian users incorporated a THE HYDROGRAPHIC JOURNAL Charts and maps that are compiled using different datum will show the same numerical value of latitude and longitude in slightly different locations All geodetic datum are named The GPS system is based on the WGS-84 datum, which covers the entire world Other datum may also cover the entire world, or just a small portion of the planet By default, GPS units will depict the ship’s position on the chart using WGS-84 (World Geodetic System-84) datum However, it can also depict the ship’s position using any one of about 200 different geodetic datum On most GPS units the WGS-84 label is highlighted To change it to another system, it is a simple task of selecting the datum of one’s choice to suit the geographical region GPS gives geographical coordinate values on the WGS-84 geodetic datum Many charts are on local geodetic datum and a correction must be applied to the GPS position before plotting For example, many older AUS charts are on the AGD-66 datum; the differences between it and the GPS datum are not insignificant and are variable across the country For some charts, particularly off the coast of Papua New Guinea, the correction to be applied to GPS cannot be calculated and these charts display a specific warning to this effect Use of GPS alone on these charts is hazardous Many GPS receivers have the capacity to automatically convert between commonly used geodetic datum and WGS-84 Mariners need to monitor this feature closely as there is a danger of applying a correction which has already been applied by the receiver In Australia, a datum called Geodetic Datum of Australia (GDA-94) provides a single standard for collecting, storing and applying spatial data at all levels – local, regional, national and international The GDA-94 provides very significant and substantial benefits to those using satellite positioning and/or operating nationally or internationally, for example, the national hydrographic service It also provides direct compatibility with GPS measurements and mapping or GIS that are based on the geodetic datum It minimises the need for casual users to understand datum transformation and reduces the risk of confusion as GPS, GIS and navigation systems become more widely used in commercial and recreational activities In the Australian context, the difference between GDA-94 and AGD coordinates will vary on an average of 200 metres in a north-east direction because of the different models The actual size and orientation of the change will vary slightly from place to place For example, in the south-west of Western Australia, the difference may be 175 metres, whereas No 111 January 2004 ECDIS and Potential Legal Implications Raster Nautical Charts RNCs are raster charts that conform to IHO specifications and are produced by digitally scanning a paper chart image The image may be either the finished chart itself or the stable colour bases used in the multi-colour printing process The resulting digital file may then be displayed in an electronic navigation system where the vessel’s position, generally derived from electronic position fixing systems, can be show Since the displayed data are merely a digital photocopy of the original paper chart, the image has no intelligence and other than visually, cannot be interrogated IHO Special Publication S61 ‘Raster Nautical Chart Product Specification’ provides guidelines for the production of raster data IMO resolution MSC 86(70) permits ECDIS equipment to operate in a Raster Chart Display System (RCDS) mode in the absence of Electronic Navigational Charts The RCDS mode of operation is described in Appendix of the IMO Performance Standard for ECDIS Geodetic Datum and the Nautical Chart papers The concept of an electronic chart (EC) was conceived a number of years ago A whole new intelligent ship electronic navigation system (ENS) has evolved with the onset of Global Positioning Systems (GPS), other radio navigation techniques, computer technology and electronic charting In about 1987, the concept of combining the ship’s position from LORAN-C or DECCA with an image from the RADAR, on a computer screen whose backdrop comprised a scanned or digitised image of a portion of a part chart of a particular geographical region was warmly received (Weeks, 1992:94) Furthermore, the possibility that the electronic chart could be corrected and/or updated by inserting a floppy disk or CDROM would eliminate the tedious process of manually correcting the charts that was intended to be used during a voyage deliberate degradation of the system’s accuracy using a technique known as Selective Availability when it was introduced in 1993 Horizontal positional accuracies of 100 metres, at ninety-nine 95 per cent of the time were guaranteed However, on May 2000, the US Department of Defense discontinued the use of selective availability and a much higher degree of accuracy immediately became available A new performance standard for GPS was published in October 2001 The new horizontal accuracy standards are based on ‘Signal in Space’ errors A stated global average error from GPS signals of no less than 13 metres and worst site error of about 36 metres is now guaranteed The signal received by the user on the ground is subject to other variable influences not included in the standards and the actual accuracy achieved will vary with influences of ionospheric conditions, geographic location, time of day, and sophistication of the receiver A worldwide study over 24 hours at a period of high solar activity was conducted in June 2000 to determine the actual accuracy achieved by a representative single frequency receiver The results of the tests were in the vicinity of 95 per cent of the world-wide coverage had accuracy better than 16.4 metres at 95 per cent of the time, and all of the world-wide coverage had an accuracy of better than 23 metres at 95 per cent of the time Reliance on GPS for marine navigation has provided a quantum leap in navigational accuracy and reliability, however, it is not infallible and it is entirely possible for large errors caused by an ‘unhealthy’ satellite to go undetected for many hours Mariners are thus advised not to put total and absolute reliance for the safe navigation of their vessel solely on GPS It is stressed that where possible the vessel’s position must be independently verified by other means such as radar, gyro bearings, echo-sounder, and log Differential GPS involves the use of reference stations ashore whose geographical position is very precisely known By measuring the distance measurements to all satellites in view and using the surveyed position of the station’s antenna DGPS is able to: 1) monitor the integrity of the GPS satellite transmissions and immediately notify users to disregard any satellite operating outside specification; and 2) provide differential corrections in order to improve the accuracy of the navigation solution For example, the Australian Maritime Safety Authority’s (AMSA) DGPS network provides DGPS coverage to approximately 60 per cent of the Australian coast Accuracy of the AMSA’s DGPS network is specified to be better than 10 metres at 95 per cent of the time page papers in the offshore region of northern Queensland it may be 207 metres It is also important to note that grid coordinates (derived from a projection) and geographical coordinates (Latitude and Longitude) depend on the datum and both sets of coordinates will vary between the datum used In other words, a feature on the ground will have different sets of geographical and grid coordinates depending on the datum adopted The Australian Height Datum (AHD) will not be affected by the adoption of the GDA94 The GDA-94 employs a more accurate model which is endorsed by the International Association of Geodesy (IAG) and to which WGS-84 is being aligned For all practical purposes, the GDA and WGS-84 are the same The difference is of the order of 10 centimetres In an example taken from the nautical chart series of Western Australia, WA 966 – Cape Naturaliste, Edition (Australia West Coast, compiled and produced Department of Planning and Infrastructure, September 2001), notations appear in the legend box relating to Satellite Derived positions and the Geodetic Datum, which states that: ■ Positions - Positions are related to the Map Grid of Australia, Zone 50, based on GDA 94 For GPS use, this approximates WGS 84 ECDIS and Potential Legal Implications ■ GDA - The location of points on this chart are referenced to the Geocentric Datum of Australia 1994 (GDA 94) and will differ by approximately 200 metres to the same points shown on charts referenced to the Australian Geodetic Datum 1984 (AGD 84) All heights remain the same For further information, contact Department of Land Administration ■ Sources - From the latest information available to Department of Planning and Infrastructure, including Royal Australian Navy surveys of 1975 and other surveys of 2001 The chart user is warned thus: The information provided on this chart is subject to change All such changes of a safety or navigational nature will be promulgated Ensure that the latest edition of the chart is used at all times, and kept corrected with the relevant Notice to Mariners Carriage of ECDIS by Australian Registered Ships Under the terms of SOLAS Chapter V Regulation 19.2.1.4, an ECDIS, which meets the performance standards of IMO No 111 January 2004 Resolution A.817(19) as amended, may be accepted by a national authority as meeting the chart carriage requirement as specified in that regulation AMSA is the national authority in this context Beyond near coastal waters, (defined as being outside the Australian Economic Exclusion Zone) AMSA requires full compliance with SOLAS requirements for ECDIS when being used as the primary means of navigation This includes the carriage of an ‘appropriate folio’ of paper charts as complement to the ECDIS when navigating on raster scanned charts, that is, in the Raster Chart Display System (RCDS) mode of operation For ships within or near coastal waters a safety case (risk assessment) can be presented to AMSA, which if accepted will allow operators to dispense with the need for paper charts to be carried when ECDIS is operated in the RCDS mode Potential Errors in Marine Navigation A difference of the order of 10 centimetres in the marine environment may be acceptable, but what of a discrepancy of between 175 and 300 metres Will your ship be ‘virtually grounded’? It has been suggested (Casey, 1996:1) that on a number of occasions chart data, particularly in canals, locks, harbours, ports and alongside wharves could not withstand the resolution of the ECDIS ‘zooming’ function In many instances, the result has been that the ship’s image on an ECDIS display is depicted as overlapping the dock or jetty There are many contributing factors that may suggest that the ship’s image on the ECDIS screen is portrayed where ‘it does not belong’ These are due to GPS errors; DGPS errors; ECDIS errors; Installation errors; ENC conversion errors; chart errors; and hydrographic survey errors There is also the factor of human-induced error Consider this finding by the regulatory authority: The pilot went to his electronic chart system, which had reverted to a blank screen stand-by mode He tapped a key and when the chart was restored he suddenly realised that he had ordered the course alteration too soon [See Annexe, below] The potential GPS error has been previously discussed The DGPS is a complex system as it includes all of the complexity of the GPS and all of those things that can contribute to minor, but cumulative errors when relying on a single reference station The errors induced by DGPS are unlikely to cause mariners trouble It is important, however, to guard against the unnoticed loss of DGPS signal It is beyond the scope of this paper to offer an in-depth discussion of these potential errors Manufacturers of ECDIS integrate the DGPS information received with ENC data, to generate the ship’s position on the ECDIS monitor Errors in the accessed data may impact on what is portrayed on the monitor Whilst it is inconceivable that an error in the ECDIS programming could lead to serious problems it is nevertheless, difficult to stimulate all marine-related conditions in any testing programme An algorithmic error will, sooner or later, reveal itself Installation error, usually a one-time error, results when an incorrect value is used for the GPS antenna position on board the ship For example, an error of 10 metres in each of the ‘x’ and ‘y’ coordinates of the positioning would equate directly into a similar error in the shape of the ship depicted on the monitor When discovered and corrected, it will not recur unless the incorrect values reappear each time the system is bootedup – a concept used, when the system is checked for viruses and general verification of both the hardware and software Even a faulty ground wire could result in loss of GPS signals Although ECS are programmed to switch to dead reckoning in cases of a loss of GPS, a faulty system, undetected by the officer(s) on watch, may continue to estimate the ship’s position from incorrect data The concept of quality control is required at all phases in the production and utilisation of an ECDIS product Errors may result in the conversion process when data from an ENC is used by the manufacturer of an ECDIS system Whenever data is converted from one form to another, there is the risk of under- or overinterpretation However, standards have been established in S-57 Edition and other IMO and IHO specifications A common source of error exists in the underlying data from which the ENC is derived Such errors are a result of the ‘inappropriate’ scaling of the chart data caused by: survey errors; horizontal datum errors and uncertainties; unreported changes; and obsolescent survey technology Survey errors can be caused by a variety of reasons The data obtained from the survey is conveyed to the chart but at a scaled down version Recall that a three-dimensional ‘real world’ is portrayed on a two-dimensional flat piece of paper – the paper chart, whose maximum dimension maybe up to an A/0 (841x1189 mm) format Consider then, the information contained on that paper chart, now depicted on a monitor When ECDIS is used for docking and manoeuvring, the navigator may prefer scales of up to 1:500 and not 1:2 000 or smaller A displacement error of 1mm (+ or -) on the screen equates as five metres on a chart of scale 1:5 000 In the conventional sense, there was never a need for very large-scale charts THE HYDROGRAPHIC JOURNAL page Legal Issues: ECDIS & the User ■ Were the navigational aids on board adequate and in good working order? ■ Was the ship seaworthy in all respects? THE HYDROGRAPHIC JOURNAL Civil Liability Recent developments in civil law have imposed increased liability and responsibility on Government Agencies and Authorities that provide services to the public The NHO, as an agent to the Government of a State, providing reliable information to the user of its products, must be aware of the legal responsibilities and duties and to the extent to which the Government may be liable for shipping casualties and other marine accidents There are three primary elements of liability They are: Product Liability; Strict Liability; and Contract Liability In contract liability there exist warranties – expressed and implied In the former instance, these are basically what the manufacturer and seller describes about the product; any promises they make about it; any advertisements and photographs relating to that product that implies that the item will perform in the described manner The latter is based on the premise that the product should be suitable for the purpose for which it was intended Product liability exists when the seller is liable for negligence in the manufacture and sale of any product which may reasonably be expected to be capable of inflicting harm to the user if it is defective The concept of strict liability is that liability that is attached to the manufacturer The distinction here relates to the burden of proof and negligence This legal concept applies even though a manufacturer has taken all possible care in the preparation and sale of the product and even if the user has not purchased the item from the manufacturer or negotiated into a contract with the manufacturer National Hydrographic Offices, as producers of digital data through which electronic charts are produced will have responsibility for these products They will be responsible for the accuracy of the data, and they will be liable for any negligence that is involved; liable at least to the extent that their Government allow themselves to be liable However, if the NHO is only producing the paper charts and these charts, in turn, are copied by the EC manufacturer to create a digital data base, then the NHO would only be responsible for the information that is contained on the paper chart If a mistake exists on the paper chart and it is thereby copied by the manufacturer that becomes one issue, if the error has been introduced in the process of copying, that is another problem altogether If the product is packaged by the manufacturer and sold to a user through an independent seller – Chart agent – and the seller does not modify the product or its package, then the seller would not normally have any strict liability to be concerned about The manufacturers of ECDIS and associated equipment are responsible for the design of the hardware and software that they produce Their liability exists independently of the existence of contractual relationship The standard of care and the professionalism required of them is significantly higher in the context of product liability The manufacturer is obliged: to produce a product that is free of design or physical defect; to instruct the user in the proper utilisation and handling of the product; and to warn the user of the dangers it knows or ought to know are inherent in the product’s use Legal liability may be based either on contract or in tort A Contract is a legally binding agreement upon legal consideration to or abstain from doing some act and it maybe written or verbal A Tort is a civil wrong independent of contract that gives rise to a claim in damages In the former, the liability will arise if there is an agreement to supply an accurate chart and the supplier provides an inaccurate chart If there is a breach of contract the user can then sue the supplier for any damages resulting from the breach However, the more common case is a claim in negligence The user of the product sues the Government for the negligence of a person to act carefully where the law imposes on that person an obligation to so accordingly Most manufacturers and suppliers would state that their product meets and exceeds IMO and IHO standards They would suggest that the equipment possesses a ‘userfriendly graphical interface’ and that simultaneous overlay of raster and vector images could be displayed Furthermore, they would stress that GPS simultaneously facilitates the preparation and training for a voyage providing insurance for a safe navigation Safety and Regulatory Aspects ■ At the time of departure was the ship ‘seaworthy’ in all respects? ■ Was the grounding deliberate? No 111 January 2004 ECDIS and Potential Legal Implications In general, a ship is not considered seaworthy unless it has an adequate portfolio of charts to cover its intended voyage or voyages Electronic charts are an aid to navigation New navigation technologies and systems have been introduced in order to reduce incidence of shipping casualties It could be argued that such technology has also been introduced at the expense of reduction in ship’s personnel There are five major actors that have input into the effective operation of these equipment and systems They are the NHO (hydrographer, cartographer and printer) who carry out the survey and compile the chart; the manufacturer of ECDIS; the regulating authority; the shipowner; and the user or mariner It is the responsibility of the NHO to ensure that the information contained on the chart is accurate and offers an adequate delineation of the facts which have been ascertained from the surveys and other secondary sources The NHO does not have a duty to search out obstacles and record them, unless they are obvious or readily ascertainable However, failure to correctly describe the characteristic of a light on a buoy or to depict a shoal extending over the range line of the chart could be perceived as misleading and hence a misrepresentation of the fact How confident can the mariner feel about using digital data in an electronic form? What are the liabilities and whose copyright exists on the data? Is there a backup system in the event of total power failure on board the ship? Is there a voice data recorder and some means of archiving the data that relates to a ship’s passage, say in the past 12 or 24 hours or for the duration of the voyage Such concerns are not new They have been debated at various fora since 1990 The three legal issues relating to the ENC problem are (a) copyright, (b) safety and regulatory aspects and (c) civil liability These issues are not new They exist in the current regime of paper charts Mukherjee (1990:18) notes that in the electronic media – the new regime – there are old issues that have new implications There are many more persons involved in the production of electronic chart and the electronic systems that use the chart data papers A concept, termed ‘Blind Navigation Aid’, is capable of guiding a vessel into a channel and towards its berth by entering the ship’s intended track numerically without reference to the chart This is made possible when an Electronic Navigation System (ENS) is used in conjunction with DGPS The concept is fine in principle, but what of the unknown quantity? For example, an eddy, change in wind strength and direction, the onset of a sandstorm, or another vessel approaching but changes its intended action at the last moment` to complicate the matter, as is often witnessed in confined waterways, such as a harbour or approaches to a navigation channel In such instances, there is no substitute for local knowledge Indeed, any unreported changes could result in instances where an ENC has not yet incorporated new features, such as reclaimed land, a new jetty or a drifting buoy Here, the Notices to Mariners play a vital role in offering safety to navigation and in the process of updating the charts in a folio or in digital media whether it is ECDIS, ENC or other ENS page Many technical problems and ‘glitches’ may arise prior to sailing, during the voyage and indeed whilst the ship is entering the harbour at the end of the voyage Let us examine four prime cases: papers Problem – The computer system may consistently crash immediately on starting the programme Solution – this usually indicates that the chart object database that is created by the program has been corrupted The chart object database stores all chart objects used by the system Unfortunately the only fix to this problem is to delete the chart object database before you run the program which means you will lose all the chart objects held by the system unless you have previously Archived them to a file For this reason it is recommended that you regularly Archive all your chart objects to a file in case your chart object database becomes corrupted To delete the chart object database, delete the senc directory, which is found under C:/Program Files/??? Then run the program and it should not crash You can now import any chart objects that you have previously exported to a file Problem – The ship’s GPS is switched on and receiving a signal, but a ‘GPS Failure’ warning is given Solution - check that the system is set up correctly for the GPS The usual setting for a GPS would be either COM1 or COM2 with a baud rate of 4800 Check that the GPS is actually plugged into the COM port you specified to the system’s manual Check the user manual for your GPS or contact the GPS manufacturer to ensure that your GPS is sending out NMEA 183 data Most GPS units can this, but they may need to be configured to so If you are using the serial cable supplied with the software to run a GPS and an autopilot off the same port, ensure this is wired up correctly Problem – The ship’s autopilot is not responding to the ENC Solution – check that the ENC is set up correctly for the autopilot Also ensure that it is set up to send the correct NMEA sentences; look in the autopilot manual to see what NMEA sentence it needs Please note that autopilot data will only be sent if ‘Route Tracking’ is turned on, and the ship is under GPS control with a valid GPS signal or in Dead Reckoning mode with ‘Use autopilot on dead reckoning’ turned on If you are using the serial cable supplied with the ENC to run a GPS and an autopilot off the same port, ensure this is wired up correctly Problem – The ECS had reverted to a blank screen stand-by mode On tapping a key the chart was restored but the course alteration had been ordered prematurely The ECS was placed at a significant distance from where the Officer was standing, with its display in power-saving mode at a critical moment ECDIS and Potential Legal Implications Amendments to Chapter V of SOLAS now makes mandatory the fitting of Voyage Data recorders (VDR) units – the equivalent to the ‘black box’ placed on aircraft – on all new ships of 3000 gross registered tons or more and all passenger ships and roll-on/roll-off vessels Copyright In the current law of copyright, which is developing rapidly by way of legislation as well as court decisions, copyright subsists in databases In the case of ECDIS, it is likely that private entities will collect and hold data The Governments, through their national hydrographic office, will also own the data Computer software is now copyrightable in most jurisdictions There is good reason to argue for protection of electronic software On the other hand, copyright should not be used to control either the paper or electronic chart The rationale for this justification was based on three factors: The paper chart lacks both the morality aspect and the commercial/economic aspects protected by copyright Even if copyrighting charts cannot be justified in common law, charts are copyrighted under statutory law which overrides common law The stated objective of the statute is safety of marine navigation It is not necessary to use copyright as a means of ensuring safety since there are other ways to accomplish the objective (Mukherjee, 1990:112) Carter (cited in MacDougall and Acheson, 1990:110) suggests that three major issues will come to the fore in the event of a marine accident which relates directly to the use ECDIS and liability: What is the evidence from ECDIS that can be taken to court in the event of an accident? How are ‘due diligence’ and ‘seaworthiness’ to be determined in the context of ECDIS? No 111 January 2004 How much information is enough on ECDIS: where the responsibilities lie for changing the ECDIS database and for updating the ECDIS? As events leading up to a marine accident and contributing to the cause can sometimes be unique several basic questions are asked: Was the chart being used at the time of the accident? Were other aids to navigation in use, for example, radar, echo sounder and other distancemeasuring device? Have the ship’s logbook entries been altered? Was the officer of the watch competent to use ECDIS? Conclusion ECDIS is an effective tool for safe navigation, provides real-time information for the mariner and will inevitable be universally adopted ECDIS has demonstrated, particularly in times of reduced visibility, its cost-effectiveness to shipping as delays in berthing can be reduced or eliminated It is a sophisticated object database that maintains the mariner’s navigations objects such as waypoints, routes, and specific points of interest and provides very good security for the user’s navigation data However, the mariner needs to have total confidence in the capability and limitations of the equipment Such a system must not lull the mariner into a false sense of security Mariners must ensure that they not depend solely on one system without some means of occasional cross-referencing or verification Audible and visual alarms must be heeded The system must not be seen as a substitute for the observance of good seamanship nor for neglect of an effective watchkeeping throughout a voyage ECDIS and the paper chart, in tandem, must be seen as more than an aid to navigation ECDIS integrates a number of key components into a single system Thus, the degree of reliance placed on electronic charts, other nautical publications and navigational systems produced by the national authorities and manufacturers of the equipment potentially exposes not only the hydrographers and marine cartographers – the spatial scientist – but also the Government The legal implications for the misuse or wrong interpretation of the data are the same in the current regime as they will be for the electronic media The only change is that there many more entities that must share the responsibilities The mariner and user of the integrated system must be aware of the terms and conditions that come with the equipment and of the warranties – expressed or implied – and THE HYDROGRAPHIC JOURNAL page other small print documents they sign They should proceed with caution at all times, maintain an effective lookout and observe the standards of good seamanship Mariners are thus advised not to put total and absolute reliance for the safe navigation of their vessel solely on GPS and manufacturers are warned that they are liable for warranties which they express or imply to their clients through advertising or responses to enquiries papers Annexe Investigation Report No 181 – Summary Date: 19 July 2002 Ship’s name: ANL EXCELLENCE THE HYDROGRAPHIC JOURNAL The report conclusions include: ■ The pilot did not follow his normal procedure of checking the position of the course alteration using his portable electronic chart system ■ The temporary buoy marking the original position of the original east cardinal beacon E5 (the turning mark) was obscured by rain ■ The green light on the temporary buoy was not as conspicuous as a white light, which would normally be associated with a cardinal navigation mark ■ Although not suffering from chronic fatigue, the pilot’s performance was probably affected by the trough in his circadian rhythm associated with the hours between 0400 and 0600 ■ The pilot’s electronic chart system was placed at a significant distance from where he was standing, with its display in power saving mode at a critical moment ■ The bridge team did not detect the erroneous helm order and failed to challenge the pilot The report recommends that: ■ Where port authorities use a buoy or other temporary aid to replace an established navigation aid, the shape and the light characteristics of the temporary aid should be consistent with those of the aid it replaces ■ Brisbane Marine Pilots should review the power management settings and placement of a pilot’s portable electronic chart system to ensure that the information displayed remains easily visible from the pilot’s conning position at all times during a pilotage Type: Grounding Conclusions These conclusions identify the different factors contributing to the incident and should not be read as apportioning blame or liability to any particular individual or organisation Based on the evidence available, ANL Excellence grounded on Middle Banks on 19 July 2002 as a result of the pilot erroneously ordering an alteration of course at the starboard lateral beacon E3 instead of at the temporary starboard lateral buoy marking the position of the original east cardinal beacon E5 The following are considered to be factors in the incident: The pilot did not follow his normal procedure of checking the position of the course alteration using his portable electronic chart system The temporary buoy marking the original position of the original east cardinal beacon E5 (the turning mark) was obscured by rain The green light on the temporary buoy was not as conspicuous as a white light, which would normally be associated with a cardinal navigation mark Although not suffering from chronic fatigue, the pilot’s performance was probably affected by the trough in his circadian rhythm associated with the hours between 0400 and 0600 The pilot’s electronic chart system was placed at a significant distance from where he was standing, with its display in power saving mode at a critical moment The bridge team did not detect the erroneous helm order as a result of: Both the Master and Mate were probably fatigued as a result of their hours of work during the passage through the Great Barrier Reef, which was exacerbated by the ‘time of day’ effect Neither the Master nor the Mate were sufficiently aware of the ship’s situation, at the time, to challenge the pilot’s premature order for the course alteration Insufficient attention was paid to the ship’s radar display The navigation chart in use by the ship did not show the temporary replacement of E5 cardinal beacon with a temporary starboard lateral buoy marking the southeast extremity of Middle Bank The interpersonal tension between the master and mate effectively nullified the active participation of one qualified navigator in the bridge team Source: Australian Transport Safety Bureau, Web page accessed on 23 May 2003, for the Report of the Grounding of the ship ANL Excellence at 0318 hours 19 July 2002 - www.atsb.gov.au/index.cfm This source contains many other reports of maritime casualties in Australian waters No 111 January 2004 ECDIS and Potential Legal Implications At 0318 on 19 July 2002, the Liberian flag container ship ANL Excellence embarked a pilot off Point Cartwright, Queensland, for the passage to Fisherman Islands container terminal in the Port of Brisbane After arriving on the bridge, the pilot set up a portable electronic chart display equipped with a differential global positioning system, to allow him to independently monitor the passage to the berth The pilotage proceeded routinely There were no other movements within the port or the approach channels during this time The weather was reasonable, though visibility was reduced at times by passing rain showers At 0518, ANL Excellence passed beacon E1 and entered the East Channel Rain was falling at this time and the bridge window wipers were operating Ahead, the starboard lateral beacon E3 and the port lateral beacons E2 and E4 could be seen A temporary, starboard lateral buoy was marking the position of the cardinal beacon E5 which had been destroyed by a ship some 15 months previously This temporary buoy was not seen by anyone on the bridge As the vessel passed starboard lateral beacon E3, the pilot ordered starboard rudder to bring the ship to a heading of 240° and then called Brisbane Port Control to advise that the ship would be at the entrance channel at 0600 The master, sitting in front of one of the two radars, realised that the relative bearings of beacons E4 and E2 were changing and went to the helmsman to see what was happening The pilot went to his electronic chart system, which had reverted to a blank screen stand-by mode He tapped a key and when the chart was restored he suddenly realised that he had ordered the course alteration too soon The main engine was stopped and put astern, but ANL Excellence grounded before the ship had begun to slow The ship was re-floated on the high tide of the afternoon of 19 July 2002, using its main engine and with the aid of tugs Following an inspection of the hull, both internally and externally on 20 July, the vessel was cleared by the Australian Maritime Safety Authority, and its classification society to continue in service Report Released: 19 May 2003 Location: Moreton Bay, Queensland page 10 Acknowledgements papers The author acknowledges with thanks the invitation from Captain Wilson Chua, Maritime and Port Authority of Singapore, to participate in this conference and to Mr Wayne Winchester of the Marine Branch of the Department of Planning and Infrastructure, Western Australia for verifying certain aspects of charting in Western Australia This paper was originally presented at the 2nd International ECDIS Conference, 7-9 October 2003, Singapore and is reproduced with the kind permission of the organisers REFERENCES Alexander, L ‘Implementing ECDIS: Challenges and Opportunities’, Contour, Summer, 1995, pp Canadian Hydrographic Service Electronic Chart Pilot Project Final Report, 1994, CHS, Ottawa International Hydrographic Organisation (1991) Glossary of ECDIS-related Terms, Rev 1.1, Special Publication S-52, Appendix 3, IHB, Monaco, 1991 Casey, M J ‘Hey! Why is my Ship Showing Up on the Dock?’ Contour, Fall, 1996, pp p Johnansson, K and Laitakari, I ‘Digital Revolution of Navigation – Exploiting ECDIS and production of Electronic Navigational Charts’, 1997, paper at web address www.esri.com/base/ common/ userconf/proc97 Coochey, J ‘An Economic Evaluation of hydrographic Charting with Special Emphasis of the Australian Case’, IHR, LXX (1), 1993, pp 91-101 Kerr, A J ‘Conceptual Model of a Regionally Integrated data base for ECDIS’, International Hydrographic Review, LXXI (2), 1994, pp 37-45 Forbes, V L Law of the Sea, Nautical Charts and the Delineation of Maritime Limits’, Paper presented at the SEAPOL International Conference, 1987, Bangkok Kerr, A J ‘A Worldwide Database for Digital Nautical Charts’, IHR, LXXII (2), 1995, pp 97-109 Kite-Powell, H L and Jin, D ‘Safety Benefits of Digital Navigation’, IHR, LXXIII (1) 1996, pp 65-75 Knight, P ‘Chartmaking by the Private Sector’, Proceedings of the Hydographic Surveyors Association, Fremantle, 1997, pp 109-112 MacDougall, J R and Acheson, S M (Editors) Proceedings of the International Conference on Maritime Law and the Electronic Chart, Canadian Hydrographic Association, Ottawa, 1990 Mukherjee, P K ‘Copyright Control of the Nautical Charts – The Pros and Cons’ in MacDougall and Acheson (eds) Proceedings of the International Conference on Maritime Law and the Electronic Chart, 1990, pp 29-31 Kerr, A J ‘International Perspectives on ECDIS’, IHR, LXXIII (1), 1996, pp 115-125 Rowland, B and Furness, R ‘Australian Digital Navigation Charts’, Paper presented at the Mapping Sciences Institute of Australia Conference in May 1998 at Fremantle Halls, I ‘Raster Formats used in Hydrographic Charting’, IHR, LXXIII (1), 1996, pp 43-53 Kite-Powell, H L and Gaines, A G (1995a) ‘Evaluation of a Technological Standard for Electronic Chart Systems’, Marine Policy, 19 (3), pp 185-198 Vadus, J R ‘Electronic Nautical Charting: Economic Value and Role in Sustainable Development of Marine Transport Operations’, IHR, LXXIII (1), 1996, pp 30-42 Halls, I, Wild, S, O’Neil, P and Furness, R ‘Attention All Mariners – Official Electronic Charts Have Arrived’, Proceedings of the Hydrographic Society of Australia Conference, Fremantle, 1997 Kite-Powell, H L and Gaines, A G ‘Provisions and Evaluation of the IMO Performance for Electronic Chart Display and Information Systems’, Journal of Maritime Law and Commerce, 26 (2), 1995(b), pp 197-214 Forbes, V L The Maritime Boundaries of the Indian Ocean Region, Singapore University Press, Singapore, 1995 ECDIS and Potential Legal Implications Weeks, C G ‘ECS or ECDIS – or ENS’, The Hydrographic Journal, No 61, July 1991, pp19-22 Weeks, C G ‘The Price of ECDIS – Is It Worth Paying?’ IHR, LXIX (1), 1992, pp 93-102 Useful Websites www.hydroservice.no/Links/ www.hydro.gov.au/ www.magellan.com.au/news/index.htm?area=Press+Releases&style=full www.amsa.gov.au/amsa/mn/MN2002/mn0702.htm www.atsb.gov.au/marine/incident/incident_detail.cfm?ID=181 No 111 January 2004 THE HYDROGRAPHIC JOURNAL page 11 biography New Special Publication No Hydrographic Surveying as a Career A new format, full-colour version of this invaluable, popular Special Publication is due to be published over the coming months In addition to being available via the Society’s website, SP will continue to printed in booklet form, with the addition of new loose-leaf appendices Hydrographic Surveying as a Career is provided free of charge to careers offices and fairs, trade exhibitions and to students, of all ages, interested in pursuing a career in hydrography Sponsors are currently being sought for this very worthwhile publication The valuable financial assistance offered by sponsors will naturally be acknowledged within the publication If your company would like to discuss sponsorship of this new version of SP please contact: The Hydrographic Society PO Box 103, Plymouth, PL4 7YP, United Kingdom Tel and Fax: +44 (0)1752 223512 E-mail: helen@hydrographicsociety.org No 111 January 2004 ECDIS and Potential Legal Implications SPONSORS NEEDED THE HYDROGRAPHIC JOURNAL papers Dr Vivian Louis Forbes is Map Curator at the University of Western Australia and an Adjunct Associate Professor at the Department of Spatial Sciences, Curtin University He is professional, practising cartographer, marine political geographer, lecturer in spatial sciences and marine affairs and former British Merchant Naval Officer He is a professional cartographer, lecturer, supervisor to Graduate and Under-graduate students at UWA and Curtin University and is a Research Associate of the Maritime Institute of Malaysia Dr Forbes has developed expertise in international law particularly as it relates to maritime and terrestrial political boundary determination, law of the sea and associated issues; practical experience in terrestrial and hydrographic surveying; lecturing in Law of the Seas issues, spatial sciences and political geography; and has many years of practical experience in cartography He has an excellent understanding in the problems of maritime boundary determination especially in the regions of Southeast and East Asia and those ocean areas surrounding the Australian continent His research interests are in the disciplines of cartography, marine political geography and maritime studies He lectures in these topics and has published widely on these themes The main focus of his research is on maritime boundary delimitation and geopolitical issues He has specialised on Indian Ocean maritime affairs and international boundary issues of East, South and Southeast and Southwest Asia He has presented a number of papers at conferences and seminars at national and international fora and conducted workshops on the cartographical concepts and geopolitical concerns in determining maritime boundaries He is the author of a number of books that include The Maritime Boundaries of the Indian Ocean Region (1995) and Conflict and Cooperation in Managing Maritime Space in Semi-enclosed Seas (2001), an atlas and has been consulted on matters relating to maritime and terrestrial boundaries and has appeared as a witness at Joint Standing Committee on Treaties Sessions for the Australian Federal Senate in relation to the delimitation of Australia’s maritime boundaries with Indonesia in 1997 and East Timor in 2002 He has presented on an annual basis (September 2002 and 2003) Workshops on maritime boundary issues at the Maritime Institute of Malaysia in Kuala Lumpur Dr Forbes has developed a close honorary research/working relationship with MIMA since its inception through attendances at Conferences, Seminars, publication of Occasional Papers, an Atlas of Malaysia’s Maritime Space, Bulletin Articles and presenting Workshops on the cartographic aspects and geographical concepts of maritime boundary delimitation