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

[skipmac]

Originally Posted by El Pinguino

Ah, the 'shipping lanes'...... there are in fact no such things... simply areas of greater or lesser traffic density.... which is what I was alluding to in my previous... too subtle I guess

Sorry if I was too subtle. I think I did get your point and was trying to agree and add some additional commentary to point out the fallacy of the concept of shipping lanes.

[Rustic Charm]

Originally Posted by Exile

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!

Yes, I find nothing I disagree with. You have accurately read me.

I too have read many of Dockhead's posts and I too have a lot of respect for his knowledge and experience. But I find that he's unable to see past my 'literalness' perhaps and then will never concede with me when he's even so plainly quoting things wrongly. In that sense, anything I write seems to attract his attention. But I thank you for your assistance. You have summed it up well.

[skipmac]

Originally Posted by monte

We had the same situation this year skip. 50M from land between antigua and st barts, some goose in an unlit tri. Didn't see him till our nav light lit up his sail as he passed 50m ahead, tacking upwind. Wth! Shone the torch on him and no sign of life on deck...

So in your case and mine, with no one on deck no way to tell if the other boat was single-handed or just the whole crew was below sleeping.

Regardless, to me the bottom line no matter how many are on board, it's irresponsible to not keep a lookout. Although based on a very small data sample, it seems to me that the risk of collision with another yacht is not as unlikely as some would suggest.

[Rustic Charm]

Originally Posted by Dockhead

You've got it all just right.

To put it another way, just to highlight these separate cases:

1. If a guy goes the wrong way down the Dover Straits TSS, the UK authorities can file a criminal case against the skipper and whack him with a fine (real case; French sailor fined over COLREGs - Yachting World) for violation of Rule 10 of the COLREGS. Even put him in jail in an aggravated case. Violation of COLREGS is a criminal matter in the UK (administrative in some others, but the difference is not important). Here the COLREGS are not a "guide" or "just rules", you are legally obligated to obey them and are subject to criminal or administrative sanctions if you don't, and it doesn't matter (from the legal point of view, but might from an enforcement point of view) whether there was an accident. The source of law is the COLREGS. The penalties are determined by domestic law, however, so will vary from state to state.

2. If a sailor is drinking a beer below and no one is on deck keeping a watch, and he runs down a kayak and kills the kayaker, he could be prosecuted for a domestic law crime like negligent homicide, reckless homicide, criminal negligence, etc., etc. -- depending on the country. The source of law is domestic criminal law about negligent homicide etc., and the COLREGS are only a guide as to what might be expected of a prudent mariner. That is to say that the violation of the COLREGS isn't enough by itself to show the elements of negligent homicide, but may be one indicator. FOR EXAMPLE: If it were a moonless night and thick fog, and the sailboat had no radar, the sailor might not be convicted of negligent homicide, because there might not be any causal link between the COLREGS violation of not keeping a watch, and the killing -- since he wouldn't have seen the kayaker in any case. So in this case, he might be convicted for the COLREGS violation itself, but be acquitted in the negligent homicide case, all on the same facts. OR ANOTHER EXAMPLE: Say the sailor went below for two seconds to take a leak, and while not keeping a watch, ran down the kayaker. He might be convicted of a COLREGS violation (or maybe not -- maybe a "proper watch" doesn't mean you can't leave the deck for a pee -- matter of interpretation and the judge will decide), but might be acquitted in the negligent homicide case, because "prudent mariners" go below for a second all the time to take a pee, despite the technical violation of the COLREGS.

3. In the same case, the widow of the killed kayaker could sue the sailor for damages for wrongful death (or equivalent under domestic law). The source of law is domestic civil law, tort law, or the law of obligations in Continental countries. The facts which form the basis of the claim are the same as the above, but the rules are different -- for example, proof in a civil matter is usually "preponderance of the evidence", not "beyond a reasonable doubt" as in a criminal matter (which is why those accused of murder sometimes get off on the murder charge, but lose the civil suit if one is filed). Again, the COLREGS violation does not establish liability -- how this is done is determined by domestic civil law, and the COLREGS will be just one indicator.

No problems with your examples of 2 and 3 Dockhead. finally. I don't think anyone has disputed these understandings. I certainly havn't been.

IN regards to 1. though. I looked up the case your referring to and the fact the guy is a dickhead aside, was it not the case that he was prosecuted under a Regulation called, The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 ?

More specifically Would not the 'complaint' have stated he breached that same piece of legislation, and it would have probably (Yes, I'm googling this from Tasmania, so I'm asking you the question), a breach of The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 Regulation 10 (b) (i) ?

And: Is not the The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 a piece of what you call Domestic legislation of the United Kingdom?

Or is the The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 in actual fact a piece of legislation from the International Maritime Authority, in which case I'll respectfully admit I'm wrong and you have been correct all along and I'll apologise and bow to you from now on.

[sailorchic34]

To put this in perspective, it is the law to drive at or below the speed limit when driving a car. Yet almost everyone breaks that law. There have even been cases of people being ticketing for driving the speed limit, when everyone else was zooming 10-15 mph over the speed limit. The reason for the ticket; Obstruction of traffic. Even when the driver was following the letter of the "LAW".

So yes sailing single handed is breaking the letter of the law, if you sleep while doing it. But the danger it represents is tiny in the overall perspective.
But then, Laws are made to be broken....

Boy I sure miss those nice quite anchor thread.

[Rustic Charm]

Originally Posted by skipmac

Ah yes, safety when away from shipping lanes. Almost had a head on collision with a cruising sailboat in the middle of the night, over a hundred miles from the nearest shipping lane. No idea if it was a single-hander but the boat was sailing without lights and obviously no one on watch since we were well lit and hard to miss.

It was a moonless night, overcast and almost dark as a cave. I was fortunately paying attention and noticed something light in the darkness dead ahead. Got my attention since nothing should have been there so focused on it. When it was a boat length or two away I realized I was seeing the sails of another boat. Immediately cut the AP, altered to stbd and passed close enough I could have spit in their cockpit. Now if I had been napping we would definitely have hit.

Similar situation a few years ago south of DE Bay. This time it was broad daylight and all three of us were in the cockpit. Watched a boat leave the coast a few miles away on an intersecting course. At first didn't pay any attention but as they got closer we started watching. We were stand on so maintained course and speed until it became obvious the other boat was not going to change course. Cut the AP and altered course to pass astern of the boat. No one in the cockpit, wind vane steering. Now we were only a few miles off the coast but well south of any shipping lanes coming out of the bay.

So whatever the reason, not standing watch just because you aren't "in a shipping lane" doesn't seem to be a guarantee there's no one to run into.

I had a very similar near miss at around 2am one morning coming back from an Island in Bass Strait. It was my watch. I spotted what seemed to be a light. I went below and checked my chart plotter and the chart. I was gone less than a second and rushed back up on deck. The rest of my crew were sleeping. Crossing my bow about 100m (hard to tell in the dark) was a yacht running an anchor light, I presume heading towards Flinders Island. No response from the radio on 16 at all. I didn't have to take any action at all as it 'missed' me, but I'm not sure it was as a result of the skipper taking evasive action because he seen me or it was just dumb luck that we missed. Certainly illustrated to me the importance of constant vigilance.

[Rustic Charm]

Originally Posted by jackdale

Ther have several references to "shipping."

In mid ocean, there are really no shipping lanes. There are areas of denser traffic, as traffic takes its shortest route.

This is the AMVER plot from August 2012.

wow! that put's it all into perspective. That means I'm in one of the safest areas to go to sleep whilst solo

[Pelagic]

Originally Posted by jackdale

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

Good link Jackdale

However...From a legal perspective within that broad definition..... 'Of EXCEPTIONAL'.. would not a solo crew, unable to maintain a proper lookout be within his rights to display NUC as a warning to all traffic, while they recuperated from excessive fatigue?

I can not remember the specific case, but this NUC recommendation was put forth in a case where the whole crew were all down with severe food poisoning.

[FamilyVan]

RC, I can't see how you can insist that the Collision Regulations are not law in Canada. All acts, codes and regulations that fall under the Canada Shipping Act are law including the regulation that is titled "International Regulations for Preventing Collisions at Sea 1972 with Canadian Modifications" locally know as the ColRegs. I know dozens of Licensed Canadian Masters, Steamship Inspectors and Lawyers who refer to them as the ColRegs and know that they are derived from the "International Regulations for Preventing Collisions at Sea 1972".

I am curious what makes an Australian ex cop such an expert on what constitutes Canadian Maritime law?

Do you hold a Canadian Masters licence? Do you hold a foreign STCW licence of any description? Are you a member of the Canadian Bar? Are you a professor of nautical science? Have you ever set foot on Canadian soil? Or you are just right and that's all there is to it?

Sent from my SGH-I547C using Cruisers Sailing Forum mobile app

[Rustic Charm]

Originally Posted by sailorchic34

To put this in perspective, it is the law to drive at or below the speed limit when driving a car. Yet almost everyone breaks that law. There have even been cases of people being ticketing for driving the speed limit, when everyone else was zooming 10-15 mph over the speed limit. The reason for the ticket; Obstruction of traffic. Even when the driver was following the letter of the "LAW".

So yes sailing single handed is breaking the letter of the law, if you sleep while doing it. But the danger it represents is tiny in the overall perspective.
But then, Laws are made to be broken....

Boy I sure miss those nice quite anchor thread.

Can you really site ANY case when someone has been ticketed for driving the speed limit? I have my doubts this would be correct. Certainly not in any Western courts. It could be argued that someone doing 40kmh in a 110kmh zone is 'obstructing' the course of traffic. Back in the 80's I booked a guy for doing just this, but the supervisor cancelled the ticket saying he'd never hear of such over handed policing. I only booked him because he challenged me to do something about it and didn't care of the 40 something cars banked up behind him.

But for reason's others have stated here. I think whether it is in fact 'not complying with the Colreg's is questionable for reasons many have raised. As for 'breaking the Law'? As I have been raising, it can only be breaking the Law if there is a LAW it is breaking.

So my question again, is, 'Does anyone know of anywhere in the world where it is specifically stated in legislation that it is unlawful to operate a vessel solo' ? Because I would continue to contend, that unless there is a LAW, then you can't be breaching it!

[Rustic Charm]

Originally Posted by FamilyVan

RC, I can't see how you can insist that the Collision Regulations are not law in Canada. All acts, codes and regulations that fall under the Canada Shipping Act are law including the regulation that is titled "International Regulations for Preventing Collisions at Sea 1972 with Canadian Modifications" locally know as the ColRegs. I know dozens of Licensed Canadian Masters, Steamship Inspectors and Lawyers who refer to them as the ColRegs and know that they are derived from the "International Regulations for Preventing Collisions at Sea 1972".

I am curious what makes an Australian ex cop such an expert on what constitutes Canadian Maritime law?

Do you hold a Canadian Masters licence? Do you hold a foreign STCW licence of any description? Are you a member of the Canadian Bar? Are you a professor of nautical science? Have you ever set foot on Canadian soil? Or you are just right and that's all there is to it?

Sent from my SGH-I547C using Cruisers Sailing Forum mobile app

I'm not pretending to be an expert on anything!
And if you don't like my 'right' as a member of CF to make a post then just don't comment. They should have an imoticon for when some is trolling.

And I have NOT even come close to suggesting the Canadian Collision Regulations are not LAW in Canada. Of course they are.

[jackdale]

Originally Posted by Pelagic

Good link Jackdale

However...From a legal perspective within that broad definition..... 'Of EXCEPTIONAL'.. would not a solo crew, unable to maintain a proper lookout be within his rights to display NUC as a warning to all traffic, while they recuperated from excessive fatigue?

I can not remember the specific case, but this NUC recommendation was put forth in a case where the whole crew were all down with severe food poisoning.

I think the distinction would be that the solo sailor intentionally put themselves in that condition while the poisoned crewed did not.

[FamilyVan]

I'm not trolling? I stopped posting on this silly thread long ago, but you keep bringing up how some people are claiming you can be fined under the ColRegs as if they were law. At least in part referring to me 10 pages after I bailed out of the thread because it was a bunch of circular rhetoric.

In Canada, you can be fined under the ColRegs, by TC (not the IMO) for breaching the ColRegs. It's uncommon but it can happen and it has happened. Although I sincerely doubt it has happened to somebody single handing and likely won't unless there is a serious incident.



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[monte]

Originally Posted by jackdale

I think the distinction would be that the solo sailor intentionally put themselves in that condition while the poisoned crewed did not.

That's my understanding as well.

[sailorchic34]

Originally Posted by Rustic Charm

Can you really site ANY case when someone has been ticketed for driving the speed limit? I have my doubts this would be correct. Certainly not in any Western courts.!

Here's one link.
Maryland Woman Ticketed For Driving 2 Miles Under The Speed Limit (UPDATED)

I remember reading about another one, in the north SF bay area on 101, a few years back, which is the main north south highway, 4 lanes each direction, and packed. Posted speed limit is 65. But if your doing 75, your being passed. It does not happen often, but it does happen.

and this : http://www.seattlebikeblog.com/2015/04/21/wa-bill-would-ticket-people-for-driving-below-the-speed-limit/,