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VTS duty of care and liability
VTS is recognised internationally as a navigational safety measure through the International Convention on the Safety of Life at Sea 74/78 (SOLAS). In particular, the provisions in SOLAS Chapter V (Safety of Navigation) Regulation 12 provides for VTS and states that:
- 'VTS contribute to safety of life at sea, safety and efficiency of navigation and protection of the marine environment, adjacent shore areas, work sites and offshore installations from possible adverse effects of maritime traffic.'
- 'Governments may establish VTS when, in their opinion, the volume of traffic or the degree of risk justifies such services.'
SOLAS also states that contracting governments planning and implementing VTS shall, wherever possible, follow the guidelines developed by the IMO.
Section 2.2.4 of IMO Resolution A.857(20) Guidelines for VTS states:
'The liability element of an accident following compliance with VTS guidance is an important consideration which can only be decided on a case-by-case basis in accordance with national law. Consequently, a VTS authority should take into account the legal implications in the event of a shipping accident where VTS operators may have failed to carry out their duty competently.'
SOLAS is implemented in Australia by the Navigation Act 2012 (the Act) and Marine Order 64 (Vessel Traffic Services), which establishes AMSA as the competent authority for VTS in Australia and allows regulations to be made in relation to VTS.
Section 214 of the Act (Liability of master or owner under vessel traffic service arrangements) states that:
- The master of a vessel is not relieved from responsibility for the conduct and navigation of the vessel merely because the vessel is subject to vessel traffic service arrangements.
- A requirement under a law of the Commonwealth or of a State or Territory that VTS arrangements be complied with does not affect the liability of the owner or master of a vessel that complies with such arrangements for:
(a) loss or damage caused by the vessel
(b) loss or damage caused by a fault of the navigation of the vessel
In terms of Australian law:
- An authorisation to provide a vessel traffic service for a VTS area does not have the effect of creating a discrete legal personality/entity to provide that service. Liability could therefore only arise in the case of an existing entity (i.e. a legal person) in that original capacity (that is, in the capacity as a port authority, for example).
- An entity which is authorised as a VTS Authority is neither immune from the scrutiny of a Court or shielded from civil liability in the event it is found negligent. This position is not changed by the operation of section 214 of the the Navigation Act.
- Negligence, in broad terms, arises where:
- a duty of care is owed
- there is a breach of that duty (by act or omission)
- material damage is caused as a consequence of the breach of the duty.
- A duty of care is a legal obligation to avoid causing harm, and arises where harm is foreseeable if due care is not taken.
- The scope and nature of any duty of care owed by an entity which is authorised as a VTS Authority is complex and depends on a range of factors, including, but not limited to the nature of services provided, for instance, whether the entity is authorised as:
- an information service
- a navigational assistance service
- a traffic organisation service.
- Entities which are authorised as VTS authorities should therefore carefully consider the nature of all interactions with relevant vessels. Paragraph 2.3.5 of the IMO Guidelines suggests that:
When the VTS is authorised to issue instructions to vessels, these instructions should be result-orientated only, leaving the details of execution, such as course to be steered or engine manoeuvres to be executed, to the master or pilot on board the vessel. Care should be taken that VTS operations do not encroach upon the master’s responsibility for safe navigation, or disturb the traditional relationship between master and pilot.
Adopting this guidance would assist to preserve the distinction of responsibilities of a master and a VTS authority which are in turn preserved by section 214 of the Act.
Entities authorised as VTS authorities should seek independent legal advice if questions or concerns arise about the nature and extent of liability which might arise in the performance of VTS-related functions