All about the Colregs no 3 - single handed sailing and keeping a look out

[Rustic Charm]

Originally Posted by Dockhead

Google is a great way to find knowledge and learn things, but you have to actually read the sources you turn up that way , and not just the headline

That article is about CIVIL liability arising from COLREGS violations -- the right of one mariner to sue another mariner for damages, in case of an accident. The point is that a COLREGS violation cannot automatically be the basis of a lawsuit -- we talked about that earlier in the thread. That's because the source of liability in a civil matter is negligence or other duties of care established by domestic law; the COLREGS can only be a guideline for whether or not a duty of care existed under domestic law. Just because one mariner violated some obligation in the COLREGS does not by itself prove that he is responsible for the accident. We also talked about that earlier in the thread.

The article does not at all say that the COLREGS are merely "guidelines", where criminal or administrative liability is concerned, that is, the question of whether you can be fined or sent to jail, as opposed to paying damages to another mariner.

You said somewhere that you never wrote that the COLREGS are "mere rules". But here you are trying to cite authority that the COLREGS are merely guidelines. And again wrongly. What can I say.

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Your arrogance is astonishing Dockhead! the article is about both civil and criminal. It clearly distinguishes both. And the criminal case it sites is a Canadian case of a chap on criminal charges due to two people who died and the personal responsible is sentence to four years imprisonment, how in earth is that 'civil'?

And I did not suggest the Colregs are 'mere rules', you made that up in your underhanded way to discredit me. Nor am I now citing 'authority' that the Colregs are 'merely guidelines'. I Simply provided a link to an article written by a legal firm about the Colregs which is claiming they are guidelines and not Law. Personally, whilst I don't believe they are Law, I believe they are beyond 'guidelines'.

OMG what is wrong with you? You really can't take any correction can you? Have to be right? Is that it?

[Rustic Charm]

Originally Posted by boatman61

Ahhh.. The Law.. a peculiar American Obsession..
The ColRegs are not LAW FFS.. Get over it..
They are an Internationally agreed collection of recommendations for proceedure at sea and are used to achive some harmony in matters Maritime.
If they were Law the USA would be in breach of every one as they openly flout them by having everything navigational opposite to the rest of the world.
Get over all this Legal Illegal ******** FFS and get a life.
Go Sailing or Something..

How come you get away without the professor picking on you

I seem to attract Him like flies around a cows backside

[boatman61]

LMAO.. Then all I can say is.. Yacht Masters be grateful the UK prisons are overloaded with TV Licence dodgers..

[boatman61]

Originally Posted by Rustic Charm

How come you get away without the professor picking on you

I seem to attract Him like flies around a cows backside

I just swear a lot.. its beneath his dignity..

[Wotname]

Hey Boatie, I'll bail you next time you get nicked for single handing

I know a good Brief...

[Dockhead]

Originally Posted by Rustic Charm

Your arrogance is astonishing Dockhead! the article is about both civil and criminal. It clearly distinguishes both. And the criminal case it sites is a Canadian case of a chap on criminal charges due to two people who died and the personal responsible is sentence to four years imprisonment, how in earth is that 'civil'?

And I did not suggest the Colregs are 'mere rules', you made that up in your underhanded way to discredit me. Nor am I now citing 'authority' that the Colregs are 'merely guidelines'. I Simply provided a link to an article written by a legal firm about the Colregs which is claiming they are guidelines and not Law. Personally, whilst I don't believe they are Law, I believe they are beyond 'guidelines'.

OMG what is wrong with you? You really can't take any correction can you? Have to be right? Is that it?

Did you actually read the article, Rustic?

The criminal liability discussed, where COLREGS were used as a "guideline", was criminal negligence, NOT criminal liability for the violation itself, a completely different issue. You completely misunderstand what the article is about. Criminal negligence is a crime which is purely a matter of domestic law; it has nothing to do with whether or not failing to keep a watch is itself a crime or not. The article does NOT say that COLREGS are not law, does not say that they are mere rules or guidelines, and does not say that you cannot incur criminal liability for violations. It is only talking about indirect consequences of COLREGS violations.


Once again, here is how it works:

1. COLREGS are the law. What penalties there are for violations are not determined by the COLREGS themselves, but by each contracting state. In some states the violation of COLREGS might be considered a crime with possible imprisonment besides fines (e.g. UK); in other states maybe just an administrative violation with nothing but a fine (e.g. US), but everywhere and in every case some kind of violation.

2. Enforcement of COLREGS varies according to states. It's not very common for fines to be issued, when there's no accident, but it does happen -- several such cases were cited earlier in this thread. An exception is Germany, which hands out 1000 euro fines almost every day for violations of the TSS in the German Bight. You could theoretically even go to prison for a COLREGS violation which did not result in an accident (e.g. in the UK where the law provides for this), but I've never heard of such a case.

3. Penalties for COLREGS violations are not set in the COLREGS themselves, but are decided by each individual state.


Surely this is not so hard to understand.

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[TeddyDiver]

Originally Posted by barnakiel

Educating others. Oh. Whatever.

Look: These are "...regualtions for preventing collisions ..."

When there is no collision (and no risk of collision), they do not apply.

Fair winds,
b.

Excactly! That was also told by the inspecting captain when I did my license.
Thou the thruth is they apply but nobody (authorities) cares as long as you don't cause a close call with a wrong vessel. They do count and check flares and CO2 dates and such but not intersted how you do your sailing..
BR Teddy

[Rustic Charm]

Originally Posted by Dockhead

Did you actually read the article, Rustic?

The criminal liability discussed, where COLREGS were used as a "guideline", was criminal negligence, NOT criminal liability for the violation itself, a completely different issue. You completely misunderstand what the article is about. Criminal negligence is a crime which is purely a matter of domestic law; NO DISPUTE. it has nothing to do with whether or not failing to keep a watch is itself a crime or not. NO DISPUTE The article does NOT say that COLREGS are not law, does not say that they are mere rules or guidelines, and does not say that you cannot incur criminal liability for violations. It is only talking about indirect consequences of COLREGS violations.

The following is a direct quote from the article.

"the breach of a ColReg Rule does not typically result in a criminal conviction, rather, the ColRegs act as guidelines which are used by the criminal court to measure the reasonableness of the mariner’s conduct in assessing guilt under the Criminal Code."

Once again, here is how it works:

1. COLREGS are the law. What penalties there are for violations are not determined by the COLREGS themselves, but by each contracting state. In some states the violation of COLREGS might be considered a crime with possible imprisonment besides fines (e.g. UK); in other states maybe just an administrative violation with nothing but a fine (e.g. US), but everywhere and in every case some kind of violation.

Wrong. The Colregs on their own are NOT Law! Read the IMO's FAQ as earlier cited. They must be incorporated into the laws of member states and then that's the Law.


2. Enforcement of COLREGS varies according to states. It's not very common for fines to be issued, when there's no accident, but it does happen -- several such cases were cited earlier in this thread. An exception is Germany, which hands out 1000 euro fines almost every day for violations of the TSS in the German Bight. You could theoretically even go to prison for a COLREGS violation which did not result in an accident (e.g. in the UK where the law provides for this), but I've never heard of such a case.NO ONE is disputing this either. Though you have moved on I notice from your earlier claims of insisting that heavy fines, jail time and vessel confiscation can be the result everywhere.

3. Penalties for COLREGS violations are not set in the COLREGS themselves, but are decided by each individual state. Why do you keep repeating this. And again, NO ONE is disputing it.. NO ONE


Surely this is not so hard to understand. No it's not hard to understand. But NO ONE is disputing these three things. MOVE ON!

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You have an incredibly dishonest way of avoiding anything that shows you to be wrong don't you. And an exceptionally distasteful way of twisting things around to discredit people.

[Rustic Charm]

Originally Posted by Dockhead

The article does NOT say that COLREGS are not law, does not say that they are mere rules or guidelines, and does not say that you cannot incur criminal liability for violations.

"In civil cases, there is no Crown seeking to convict a mariner for a breach of the Criminal Code or a regulation under the Shipping Act 2001. Instead, private parties are suing one another for compensation for property damage or injury. Typically, the claimant will allege the defendant was negligent in the navigation of a vessel. In considering whether someone is negligent, the court must determine what the appropriate standard of care is in the circumstances, whether the mariner’s conduct fell below that standard, and if so, did the failure to meet that standard cause the accident. In doing so, the court will often be referred to the ColRegs as the appropriate standard of care for a mariner. In other words, the court will use the ColRegs as a guideline for what a reasonably prudent mariner should do in the circumstances."


"All this being said, readers ought not interpret these observations to mean the ColRegs should not be treated as “rules” in the traditional sense of the word: directions to be respected and followed. Clearly, adherence to the ColRegs is immensely important to maintaining safety at sea. The point to take from this article however is: do not assume that just because you have breached a ColReg that you will be found responsible in a civil or criminal court, and similarly, simply because someone else has breached a ColReg does not mean they will necessarily be responsible to you for your resulting damages. The focus of the legal inquiry will typically come down to this question: to what extent does the breach of the ColReg demonstrate a sufficient departure from the conduct of a reasonably prudent mariner in the circumstances to warrant responsibility?"


From Understanding Marine Collision Regulations

[Dockhead]

Originally Posted by Rustic Charm

"In civil cases, there is no Crown seeking to convict a mariner for a breach of the Criminal Code or a regulation under the Shipping Act 2001. Instead, private parties are suing one another for compensation for property damage or injury. Typically, the claimant will allege the defendant was negligent in the navigation of a vessel. In considering whether someone is negligent, the court must determine what the appropriate standard of care is in the circumstances, whether the mariner’s conduct fell below that standard, and if so, did the failure to meet that standard cause the accident. In doing so, the court will often be referred to the ColRegs as the appropriate standard of care for a mariner. In other words, the court will use the ColRegs as a guideline for what a reasonably prudent mariner should do in the circumstances."


"All this being said, readers ought not interpret these observations to mean the ColRegs should not be treated as “rules” in the traditional sense of the word: directions to be respected and followed. Clearly, adherence to the ColRegs is immensely important to maintaining safety at sea. The point to take from this article however is: do not assume that just because you have breached a ColReg that you will be found responsible in a civil or criminal court, and similarly, simply because someone else has breached a ColReg does not mean they will necessarily be responsible to you for your resulting damages. The focus of the legal inquiry will typically come down to this question: to what extent does the breach of the ColReg demonstrate a sufficient departure from the conduct of a reasonably prudent mariner in the circumstances to warrant responsibility?"


From Understanding Marine Collision Regulations

You continue to confuse liability for death -- criminal negligence -- a domestic law matter -- with liability for COLREGS violation. These are completely different things. This article has nothing to do with the question of this thread -- namely what do COLREGS violations mean in themselves. There is no "reasonably prudent mariner" standard in the COLREGS -- the article is all about civil liability, and criminal liability for the deaths under domestic law, nothing to do with enforcement of the COLREGS.

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[dannc]

Originally Posted by Jon Eisberg

...

Anyway, it's all those CONTAINERS floating around out there that are gonna get you... And if not one of those, then it will probably be a METEORITE...

:-)

Don't forget whales.

I read a study that had self reported collisions between boats and whales. Since it was self reported accidents I think the numbers are higher than in the study because I don't think many people even knew about the study.

The bottom line was that 1-2 boats a year are sunk by whales. I suspect the number is higher.

How many single handed boats sink or have the captain disappear at sea? I can only think of one guy who went missing over the last few years. The boat was found but the captain was missing so its not really an example of a Colreg violation.

Later,
Dan

[Dockhead]

Originally Posted by Rustic Charm

You have an incredibly dishonest way of avoiding anything that shows you to be wrong don't you. And an exceptionally distasteful way of twisting things around to discredit people.

I'm often wrong, and learned long ago to admit it right away when someone points it out It's embarrassing when it's something I've taken a strong position on, but still better just to own up to it rather than drag out the agony It's always a comfort, though, to know that I've just been saved from some stupidity of my own making, and I always try to be grateful to those who have shown me the light.

Here, however, I can say with confidence gained from years working in the field, that I am not wrong. Pretty much first year stuff

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[weavis]

Originally Posted by dannc

Don't forget whales.


Later,
Dan

Whales! I knew their cuteness was just an act! Probably in league with White Mice for taking over the world one solo sailor at a time.

Be aware!

[jackdale]

Originally Posted by Pelagic

Adding to this thought experiment.... What If.....
Solo sailor hove to and showed NUC Day and Night signals when not on watch.

Are the Rules being properly followed?

No. NUC means the vessel is disabled, not the skipper.

"A vessel claiming not-under-command status must (1) find itself in exceptional circumstances, and (2) thereby be unable to maneuver as would ordinarily be required by the Rules. The following are examples of conditions that could result in not-under-command status:

Vessel with anchor down but not holding
Vessel riding on anchor chains
Vessel with inoperative steering gear
Sailing vessel becalmed or in irons
Exceptionally bad weather (relative to vessel claiming status)
Vessels claiming not-under-command status are considered to be underway. That is, they re not considered to be at anchor, made fast to the shore, or aground."

Rule3.html

[Exile]

Originally Posted by Rustic Charm

You have an incredibly dishonest way of avoiding anything that shows you to be wrong don't you. And an exceptionally distasteful way of twisting things around to discredit people.

RC -- I usually appreciate and often learn from your many posts and insightful thread starters, but I find this comment entirely at odds with the many posts I've read from Dockhead over the years. If anything, humility & learning seem to be his overriding mantras, to the point when I remember being surprised upon learning one day how extensive his sailing resumè really was. In my observation anyway, DH 's m.o. seems to often invoke the old saying about how it's better to risk looking stupid on occasion and learn, than try and always look smart & stay stupid forever.

FWIW, I also have some background in this general area, and my casual observation is that you & DH actually agree more on the interpretation, application & enforcement of the Colregs than your back & forth suggests. When it comes to legalese, it's often more a problem of vocabulary & nomenclature than a problem understanding the deeper concepts. Terms such as "law," "rule," or "guideline," for example, often only compound the confusion depending on how one might define or intepret such terms that might otherwise seem pretty basic to a layman. And then, of course, they can take on different meanings depending on the application. Sorta like my ongoing dysfunction with most matters electrical & certainly SSB radio-related -- I just can't seem to get past the language . . . .

For example, DH says the Colregs are the "law"; you say they are not the "law" until adopted by signatory states; but they have been adopted by all states (other than W. Sahara apparently); so they do in fact have the force of law (if you will) in all those signatory states. But this step only gets you so far . . . .

For e.g., if a signatory state adopts civil or criminal penalties to enforce the Colregs, then only such signatory states -- through its administrative and/or law enforcement agencies -- can bring enforcement actions against violators.

Then again, and totally apart from actions brought by a state to directly enforce a violation of the Colregs, a state may also bring a criminal prosecution for criminal negligence or malfeasance, and may utilize the Colregs to demonstrate that a criminal defendant has violated a universally accepted standard of care. Here the state is seeking a conviction for a completely separate criminal offense defined under the common law or by statute (depending on jurisdiction), and is not attempting to prove a breach of the Colregs themselves (although that would invariably follow). This should not be confused with the example above which, whether it seeks to enforce/punish using civil or criminal penalties, is more akin to an administrative action. Sorta like, at least here in the U.S., how DWI/DUI is handled. The state can bring an administrative action to revoke or supend a driver's license based on a violation of the motor vehicle code (administrative set of regs.), but may also bring, if warranted, a separate criminal prosecution for a violation of the Criminal Code (state statute).

Finally, a private party may bring a civil action against another private party to recover money damages. An example is the case I cited earlier in the thread about the sailor who was run down from behind by a commercial ship. Again, proving a specific violation of the Colregs is only evidence (if you will) of what must ultimately be proved to impose liability, namely a breach of a duty of care in navigable waters, i.e. negligence. Here again the Colregs are used merely to help establish what that standard actually is and not necessarily to prove that the Colregs were in fact violated (although again, that would likely follow).

Again, your postings suggest, to me anyway, that this is all fairly well understood, but perhaps this will help further clarify. Although I have a general background, I'm certainly no legal expert in this specific area. So feel free to correct anything that seems awry. And if you don't, I'm sure DH will!