This is the revival of an old theme, but still interesting and basically unanswered. Anyone have an informed
Scenario: A motor-driven vessel is navigating within a narrow channel and cannot safely navigate outside this channel. A sailing vessel which can navigate safely outside the channel is crossing this channel. No overtaking situation exists.
What are the burdens and privileges (if any) of the SV skipper
9(b) and Rule
18(a)(iv) and why?
Does the burden of the SV skipper
under Rule 9(b) cancel his privilege
under Rule 18(a)(iv) throughout the encounter, or does the privilege
under Rule 18(a)(iv) come back into force when a “risk of collision” exists or when the vessels are in sight of one another?
Is the MV skipper
entitled to stand-on in an encounter with the SV? Must the SV skipper give way? Or must the MV skipper give way notwithstanding the fact that he is privileged by Rule 9?
Rule 9 requires the burdened skipper to not impede
the privileged vessel. Rule 18 requires the burdened skipper to keep clear of
the privileged vessel. When one vessel is obligated to not impede
the other vessel, and the second vessel is obligated to keep clear of
the first vessel, which vessel is the stand-on vessel, and which is the give-way vessel, in an encounter with risk of collision
The precise meaning of the obligation to not impede
is notoriously difficult to interpret and has been much discussed. An attempt was made to clarify the meaning of “not impeding” with the later adoption of Rule 8(f), which states that (a) a vessel burdened with the obligation to not impede must take early action
to allow sufficient sea-room for the passage
of the privileged vessel; that (b) the burdened vessel is not relieved of its obligation
[to not impede] if approaching the other vessel such that a risk of collision exists
, and that (b) the privileged vessel in an encounter where an obligation to not impede exists remains fully obligated to comply with the rules
[of Part B] when the vessels are approaching one another so as to involve a risk of collision.
In my opinion, the meaning of the obligation to “not impede” is not all that obscure. It is, first of all, more general than the obligation to “keep clear” created by the other rules. It is found only in Section I and therefore applies in all conditions of visibility, including (a) when ships are not in sight of one another, so that Section II rules have not yet come into force, but an obligation to “not impede” also applies in cases when (b) ships are
in sight of one another, so that the Section II rules are also in effect. In my opinion, Rule 8(f)(ii) makes the point that an obligation to “not impede” does not disappear when a risk of collision exists – that is, an obligation to “not impede” is not replaced by obligations to “keep clear” under Section II when these come into effect when a risk of collision appears, but rather, continues in full force and effect throughout the encounter.
In my opinion, the obligation to “not impede” is broader than the obligation to “keep clear”. Keeping clear is an obligation which applies in a close encounter (by definition – when vessels are in sight of each other). As long as ships pass at a safe distance, and as long as this passing is achieved without any illegal maneuvers, such as turning to port in front of a ship to the port of the maneuvering ship, an obligation to keep clear has been fulfilled. An obligation to “not impede” is broader and stronger, and applies at a greater distance, so that the burdened vessel is obligated not merely to pass at a safe distance in an encounter, but to take early action to give plenty of sea room well before the situation becomes a close encounter. That is exactly the meaning, in my opinion, of Rule 8(f)(i). But when an obligation to “not impede” exists, and the situation develops into a close encounter with a risk of collision, the obligation continues in full force and effect, and creates an obligation on the part of the burdened vessel to give way,
althout Rule 9 says nothing about standing-on or giving way. So in effect, the obligation to “keep clear” is a lesser and narrower obligation which is included within the greater and broader concept
of “not impeding”. So in a situation where the vessels are in sight of one another or are in a close quarters situation, an obligation to “not impede” is identical to an obligation to “keep clear”.
Some confusion is created by the fact that standing-on and giving-way is discussed only in Section II – Vessels in Sight of One Another. Does this mean that none of the obligations to “not impede” creates any obligations or rights to stand-on or give-way? I have seen some interpretations to this effect. But in my opinion this is absurd. If a vessel is obligated to “not impede”, and it fails to avoid impeding to such an extent that a risk of collision comes into existence, and if the Colregs specifically say that the obligation to “not impede” continues after a risk of collision has developed, then how in the world could the burdened vessel fulfill its obligation to “not impede” without giving way? Note that Rule 17, Action of the Stand-On Vessel, does not create any right
to stand on. This right is created merely by implication by the obligation of the other vessel to keep clear; nowhere in the Colregs is any right to stand on specifically created. So I don’t see why the right could not be implied by the obligation of the other vessel to not impede, if the situation has developed into an encounter with a risk of collision. Rule 17 creates an obligation
to stand-on in certain circumstances, where the other vessel is obligated to keep clear. In my opinion, this in no way contradicts the idea that obligations to “not impede” create a right
to stand on the part of the privileged vessel and an obligation
to give way on the part of the burdened vessel, when the situation has developed so far as to create a risk of collision. Whether or not Rule 17 creates an obligation
of the privileged vessel in a “not impede” situation to stand-on is more complicated. If an obligation to “keep clear” in implied by and included within an obligation to “not impede”, which I think is logical, then such an obligation might be created by Rule 17. But that is not really part of the problem at question here.
There has been a great deal of discussion about how Rule 9 burdens and privileges interact with the burdens and privileges of Rule 15. In crossing situation between two power-driven vessels, it seems that one vessel might be privileged by Rule 9 while the other vessel is simultaneously privileged by Rule 15. Which rule has priority? I am not sure; Rule 15 does not mention Rule 9 or any priority between them. See: http://www.nautinst.org/colregs/articles/seawaysOct03Syms.htm
for a discussion of this situation. In my opinion it would be an absurd situation for one vessel to be privileged by an obligation by the other vessel to “not impede”, while the second vessel is simultaneously privileged by an obligation of the first vessel to “keep clear”. One cannot stand-on and force another vessel to maneuver while at the same time fulfilling an obligation to not impede. There must be priority between obligations to keep clear and obligations to not impede. But our problem is different.
Our problem is different, because the privileges and burdens between a motor-driven vessel and a sailing vessel are governed not by Rule 15, but by Rule 18. And Rule 18 specifically states that it applies “except where Rules 9, 10, and 13 otherwise apply”.
Therefore, in my opinion, the answer to our problem is the following:
The sailing vessel is burdened by Rule 9 both prior to any close quarters situation, and in fact prior to the vessels being in sight of one another, as well as during the whole course of any encounter involving risk of collision.
The sailing vessel is at no time privileged by Rule 18, since Rule 18 is specifically subordinated to Rule 9, and at no point can be considered the stand-on vessel in such an encounter. Indeed, using common sense, standing-on by the sailing vessel in this situation might easily cause the motor
vessel to go aground, exactly the result which Rule 9 is specifically intended to prevent.
In any such encounter which has developed to the point of involving a risk of collision, the motor-driven vessel has a right to stand-on, and possibly an obligation to do so, and the sailing vessel has an obligation to give way.
Obviously, like in all other situations involving a risk of collision, the motor
vessel is obligated to maintain a proper watch, take any action which it might take to avoid a collision only in a proper way, and in fact is obligated to maneuver itself in case the sailing vessel fails to give way or otherwise fails to maneuver effectively.
All of this seems fairly clear to me from the plain meaning of the Colregs (to the extent they can be said to have plain meaning at all). But some of participants in our forum violently disagree. There exists a view, strongly held, that the sailing vessel in the hypothetical encounter can somehow be the stand-on vessel pursuant to its privilege under Rule 18 even though it may be burdened at the very same time by an obligation to not impede under Rule 9. In support of this position, comments by Cockcroft and Lameijer, in A Guide to the Collision Avoidance Rules, are offered, which imply that contrary to my view, the sailing vessel in our situation which is burdened by a Rule 9 obligation to not impede will nevertheless become the stand-on vessel under Rule 18 once the encounter develops into a risk of collision, which thus burdens the motor vessel even as the motor vessel continues to be privileged by Rule 9. This, to my mind, absurdity – how can the sailing vessel simultaneously stand-on and yet avoid impeding the motor vessel? -- is explained away by Cockcroft and Lameijer by the fact that a stand-on vessel is permitted to take action itself by Rule 17(a)(ii). To my mind this patently weak argument is entirely contradicted by the phrase in Rule 18 which says “except when Rules 9, 10, and 13 otherwise imply”, which establishes priority of Rule 9 over Rule 18, but obviously not everyone accepts this, including some of our most esteemed forum participants, and some authorities at the exalted level of Cockcroft and Lameijer.