The complexity of ensuring safety in inland waterway transport

Zajkova Svetlana Nikolaevna ORCID: 0000-0003-1205-501X PhD in Law Associate professor, Department of Administrative and Municipal Law, Saratov State Law Academy Volskaya St., 1, 410056 Saratov, Russian Federation snzaikova@rambler.ru Other publications by this author

Introduction

In the transport system of Russia, water transport occupies a special place. Positive technical and economic indicators (a significant length of Russian waterways - more than 100 thousand km, the carrying capacity of ships, low energy consumption) make inland waterway transport (hereinafter referred to as IWT) attractive for the transportation of passengers and cargo. However, statistical accounting records a decrease in the volume indicators of transportation for the period from 2000 to 2021 (from 28 to 9 million people) and an insignificant share of IWT in the structure of passenger transportation by all modes of transport - 0.4% [information and analytical materials and statistical indicators. URL: https://rosstat.gov.ru/statistics/transport (accessed 12.06.2023)].

According to scientists and practitioners, the decline in volume indicators is explained by a number of reasons: the critical state of infrastructure, shallow waters, obsolescence of the fleet (the total number of passenger and passenger vessels is 2,595, of which more than half are over 30 years old) and accidents. The number of deaths in accidents at the IWT has doubled over the period from 2012 to 2020. [Accidents with rolling stock and those injured in them. Electronic resource https://rosstat.gov.ru/statistics/transport (accessed 12.06.2023)].

The safety of water transport has previously been the subject of scientific research. Thus, in the literature devoted to issues of state regulation in the transport industry, there are studies on a number of areas of ensuring safety in water transport ^[1-3] and certain types of safety: environmental ^[4], information ^[5], fire ^[6], industrial ^[7], medical and sanitary ^[8]. Considering the indicators of environmental safety of water transport using a systematic methodology, scientists note that the safety system depends on the state of each of its elements. They distinguish in water transport, depending on the functional content, the security of transport processes (ship management, communications, transport infrastructure) and terrorist security. At the same time, the authors note the need for further detailing of the safety structure in water transport ^{[9, p. 162]}.  

Among the foreign works, it is possible to single out the research of a group of Belarusian scientists who consider the current state of legal regulation of transport safety on water transport. There is a confusion of the conceptual apparatus in the field under consideration and a significant number of departmental rules as the legal basis for ensuring transport security in this type of transport ^[10].

The content of the water transport safety system is reflected in the educational literature in different ways. In one case, special attention is paid to engineering, technical means of security and communication, a set of organizational measures ^{[11, p. 73; 12, p. 31]}. In another case, priority is given to legal regulation and building a system of security entities ^{[13, p. 8]}. Without disputing the significance of each of these elements, it should be noted that only their systematic alignment can guarantee the security of water transport.

Despite the research carried out, there is still no comprehensive study determining the place of transport security in the structure of the security of the IWT, their relationship and features of legal regulation. The issues of uniform interpretation of terminology used in regulatory legal acts in the field of transport industry and in the field of ensuring transport security remain relevant; establishing interaction between entities engaged in the protection and protection of river transport facilities; improving the current administrative and legal mechanism for protection against acts of unlawful interference.

The scientific novelty of the study consists in the proposed classification of the types of safety of IWT depending on the objects of protection, in the allocation of objects from the infrastructure of inland waterways, in respect of which the fulfillment of mandatory requirements is simultaneously the subject of federal state control (supervision) in the field of IWT and in the field of transport security.

The purpose of the study is to form proposals aimed at improving the efficiency of protection of river transportation of passengers and dangerous goods. Objectives of the study: to compare the legal foundations of ensuring the safety of inland waterways and ensuring transport security at the IWT; to analyze the types of safety at the IWT, to propose the author's definitions of key concepts used in the field under consideration and not found legislative consolidation.

The theoretical significance of the study lies in the developed provisions that identify the features of legal regulation in the field of ensuring the transport security of the IWT, systematizing the existing variety of legal terms used to regulate legal relations on water transport. Practical - in the proposals for amendments to the Code of Inland Water Transport of the Russian Federation (hereinafter – KVVT RF), which can be used to improve legislation in the field of transport industry.

Methodology:

General scientific and special legal methods of cognition were used. When studying legislation in the field of military-industrial complex and legislation in the field of transport security, a formal legal method was applied. Administrative and legal relations on the organization of implementation, provision and compliance with security requirements at the IWT are considered using the dialectical method. The formal-logical method is used in classifying various types of security by objects of protection, identifying existing complications of legal regulation.

Results:

Ensuring security at the IWT has always been a strategic state task. The main regulatory legal act regulating the protection of the IWT is the KVVT of the Russian Federation.

The content of the concept of "safety of inland water transport" in the RF KVVT is not disclosed, but many legal norms are devoted to its provision: safety of navigation (clause 4 of Article 1), navigation of vessels (clause 4 of Article 1, clause 2 of Article 30, clause 12 of Clause 1 of Article 34.1, Article 41), their approach and parking (Articles 3, 56), technical operation (paragraph 3 of Article 31, paragraph 1 of Article 61), navigable (paragraph 4 of Article 4) and hydraulic structures (paragraph 1 of paragraph 2 of Article 4.1), loading and unloading operations (paragraph 2 of Article 56), inland waterways (paragraph 4 of Article 4), occupational safety (clause 4 of Article 28), fire (clause 1 of Clause 2 of Article 4.1), environmental (Articles 34, 39, 40), sanitary (Article 34) and other types of safety (clause 3 of Clause 4 of Article 34.1, Article 69).

The analysis of these legal norms, depending on the objects of protection, allows you to combine them into groups, each of which corresponds to a certain type of security on the IWT.

The first group of legal norms defines the content of the safety of navigation. The separation of this group is justified not only because a separate chapter 6 of the KVVT of the Russian Federation is devoted to this type of safety, but also because the concept of "navigation" is generalizing for activities on inland waterways using ships.

The responsibility for ensuring the safety of navigation is assigned to shipowners, owners of structures located on inland waterways, and administrations of inland waterway basins.

The main responsibility of shipowners is to develop and implement a ship safety management system, prepare the ship for sailing, manning it with a crew that meets the established requirements, and fulfilling safety requirements.

The owners of structures located on inland waterways are obliged to keep them in a condition that ensures the safety of navigation, and immediately inform authorized persons about the occurrence of a situation that threatens such safety.

The administrations of the basins of inland waterways are endowed with a wide list of functions that ensure the safety of navigation, including organizing, registration, licensing and control (clause 4 of Article 34 of the KVVT of the Russian Federation).

Along with the mandatory requirements for ensuring the safety of navigation established by the KVVT of the Russian Federation, certain requirements are contained in the rules approved by the Ministry of Transport of the Russian Federation. Thus, according to the Rules of Navigation of Vessels on Inland Waterways, approved by Order No. 19 of the Ministry of Transport of the Russian Federation dated January 19, 2018, the shipowner must develop and coordinate with the basin administrations a plan to ensure the safety of navigation of the vessel along the entire route, allowing taking into account the dimensions of the vessel to pass through locks and under bridges. In accordance with clause 7.5.1 of the General Rules of Navigation and Parking of Vessels in River Ports of the Russian Federation (approved by Order No. 33 of the Ministry of Transport of the Russian Federation dated May 31, 1995), the instructions of the port captain to ensure safety are mandatory for the captains of ships in port.

The safety of navigation of vessels is ensured by departmental rules: the movement of vessels in specific basins, passage through locks, dispatching traffic control and communications. According to the content, these rules establish the technical parameters of the safe operation of ships, so we can agree with the opinion that "the safety of navigation corresponds to the safety of the operation of ships" ^{[14, p. 6]}.

Of particular interest for the study are the Rules for the Development and Application of a ship Safety management system approved by Order No. 465 of the Ministry of Transport of the Russian Federation dated November 6, 2020.

The specified system includes instructions, procedures and other documents defining the algorithms of interaction between the shipowner's employees and the crew, the sequence of actions in case of emergency situations, assessment of the effectiveness of the measures taken (clause 1 of Article 34.1 of the KVVT of the Russian Federation).

The responsibility for the development and implementation of this system is assigned to the shipowner. The development of the system in accordance with the established requirements is confirmed by a compliance document, and its proper implementation is confirmed by a ship's safety management certificate. A responsible person is necessarily appointed, whose main task is internal (among the shipowner's employees) control over the safe operation of the vessel. The responsible person cannot be a member of the crew.

It should be noted that the presence of this system is one of the licensing requirements imposed on the applicant for a license for the carriage of passengers of the IWT.

Despite the legally established ship safety management system, the requirements for ensuring the anti-terrorist protection of ships are not included in it, which significantly reduces the security of these facilities.

Analysis of statistics on the causes of accidents on water transport showed that among the errors in the operation of ships in 2021, non-compliance with transport safety accounted for one-fourth of the total number of violations. The main cause of accidents and emergencies in water transport remains the human factor – "mistakes of the decision-maker" ^{[15, p. 88]}. That is why systematic training of the ship's crew and employees of the transport security forces is required, which is indicated in the monographic study by Professor A.I. Zemlin ^{[16, p. 118]}. However, attention should be paid to the existing legal contradictions.

For the purposes of ensuring transport security at the IWT, Federal Law No. 16-FZ of February 9, 2007 "On Transport Security" (hereinafter referred to as Federal Law No. 16-FZ) defines not all vessels, but only those that are used to transport passengers and (or) high-risk cargo. Among the mandatory requirements for carriers using these vessels are the appointment from among the command staff of the person responsible for ensuring the transport safety of the vessel, the development and referral to Rosmorrechflot of a passport for ensuring the transport safety of the vessel and a number of others.

In the first case (ship safety management), the person responsible for ensuring safety cannot be a crew member, in the second case (transport safety) – is appointed from the crew members, which means the need to train and maintain the qualifications of at least two employees of the carrier carrying out passenger transportation by river transport. The question arises about the efficiency of using the carrier's resources and the excessive administrative burden on the business.

This problem also entails an increase in the number of subjects providing transport security along with representatives of law enforcement agencies. The multiplicity of subjects causes difficulties in coordinating their joint activities.

The need to establish interaction between transport entities and public authorities to prevent emergencies has been repeatedly noted in scientific publications ^[17-19]. Some authors even propose to create monitoring centers in ports to coordinate all security services that ensure transport security ^{[20, p. 58]}. It is quite difficult to support such a proposal, since the uncertainty of the administrative and legal status of such centers will not allow them to regulate the activities of law enforcement agencies.

Thus, the safety of navigation of the IWT correlates with the transport safety of ships as a whole and frequent. Since safety management is presented in the form of a system of documented measures, it seems possible for ships that are used to transport passengers and (or) high-risk cargo to supplement their list, defined by paragraph 1 of Article 34.1 of the KVVT of the Russian Federation, with a passport for ensuring the transport safety of an air transport vehicle, the standard form of which is approved by the Government of the Russian Federation. It also seems necessary to clarify the mandatory requirements established to ensure the safety of ships and the transport safety of ships similar in content.

The second group of legal norms under study regulates the safety of the infrastructure of inland waterways (paragraph sixteen of Article 3 of the KVVT of the Russian Federation): lighthouses, sedimentation points of technical fleet vessels, navigable hydraulic structures (for example, navigable locks).

The provision of this type of security is entrusted to the owners of these facilities. Thus, a common requirement for them is the installation, in agreement with the administrations of the basins of inland waterways, of navigation lights, signs, equipment and their maintenance (clause 2 of Article 9 of the KVVT of the Russian Federation). Separate safety requirements are established, for example, for owners of shipping locks, including regular inspections of hydraulic structures, monitoring of its condition indicators, certification of employees on safety issues, declaration and other requirements. The fulfillment of these requirements is the subject of federal state control (supervision) in the field of military-industrial complex.

Mandatory safety requirements are also established by Federal Law No. 16-FZ, since navigable hydraulic structures are objects of transport infrastructure subject to protection from acts of unlawful interference. For example, to ensure the transport security of shipping locks, mandatory requirements are: monitoring the state of the borders of the transport security zone, certification of its security forces, and others. The fulfillment of these requirements is subject to federal state control (supervision) in the field of transport security.

Thus, the safety of the infrastructure of inland waterways (Clause 1, clause 2 of Article 4.1 of the KVVT of the Russian Federation) and the transport safety of the transport infrastructure of the IWT (clause "d" of Article 1 of Federal Law No. 16-FZ) have similar mandatory requirements in content.  In terms of navigable hydraulic structures, they are correlated as types of security that intersect with the objects of protection.

In terms of ensuring the safety of river ports, there are various legal approaches contained in Federal Law No. 16-FZ and in the KVVT of the Russian Federation. Federal Law No. 16-FZ classifies river ports as objects of transport infrastructure. In the KVVT of the Russian Federation, river ports are not assigned to the infrastructure of inland waterways and are considered as independent structures intended for passenger service, loading (unloading) of cargo. At the same time, the KVVT of the Russian Federation does not establish mandatory requirements for ensuring the safety of river ports, separate legal norms relate only to safe approaches and parking of vessels, as well as loading and unloading operations. This provision allows us to come to the conclusion that at present the security of river ports is regulated exclusively by the legislation on transport security.

The third group is represented by legal norms regulating the safety of inland waterways (clause 4 of Article 4 of the KVVT of the Russian Federation). Basin administrations maintain inland waterways, ensure the safety of ship passages and raids. The KVVT does not contain any requirements for ensuring the transport safety of inland waterways.

According to Federal Law No. 16-FZ, not all inland waterways are subject to anti-terrorist protection, but only certain sections located within the borders of the Southern Federal District. It seems necessary in relation to these sections of waterways to supplement the KVVT of the Russian Federation with a provision on the adoption of mandatory measures related to the anti-terrorist protection of such sections.

Returning to the previously conducted research and accepting the proposal of scientists on detailing the safety structure developed by them in water transport, depending on the functional content ^{[9, p. 162]}, it seems possible to propose the following structure: the safety of transport routes, the safety of water transport and infrastructure transport facilities, the safety of transport processes and terrorist security.

Conclusion

Based on the analysis of the legal norms contained in the RF CWT and departmental legal acts, it can be stated that the safety of the IWT includes the safety of navigation, inland waterways and infrastructure located on them, and does not single out transport safety as an obligatory component. The absence of legal norms regulating transport security in the RF KVVT does not allow us to talk about the comprehensive security of the IWT, about the legal mechanism created to protect this type of transport from various types of threats, including acts of unlawful interference.

It seems possible to propose the following definitions of key concepts used in the field under consideration and that have not found legislative consolidation.

The safety of inland waterway transport is proposed to be understood as the state of protection of the inland waterways of the Russian Federation, shipping, ships and infrastructure of inland waterways from transport accidents, acts of unlawful interference, other internal and external threats, provided by the system of measures established by the state.

By ensuring the safety of inland waterway transport, it is proposed to understand the implementation of measures established by the legislation of the Russian Federation to prevent terrorism, legal, organizational, economic, informational and other measures for safe navigation on inland waterways.

It is proposed to understand the safety of inland waterways, navigation, ships and infrastructure of inland waterways as their condition, which excludes or reduces the risk of harm to the individual, society and the state.

In order to increase the security of ships and river ports, it is proposed to include the passport of ensuring the transport safety of the vessel in the documented system of measures for managing the safety of the vessel with the introduction of appropriate changes in the CVT of the Russian Federation. In order to exclude cases of unreasonable burden on business, it seems necessary to conduct further scientific research in terms of comparing the content of mandatory requirements for ensuring the safety of ships and mandatory requirements for ensuring the transport safety of ships, as well as in terms of comparing various control and supervisory activities carried out on inland waterway transport in terms of navigable hydraulic structures.