Rule 5 -- Is Single-Handing Illegal?

[Dockhead]

This question has been discussed a few times over the years, and a vigorous discussion has recently flared up in another thread (http://www.cruisersforum.com/forums/...199076-29.html). I've opened this thread to get the legal question separated from the moral one which was the premise of the other thread.


The question boils down to this:


Rule 5 states that:


"Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision."



So, if we are required to maintain a proper lookout BY SIGHT AND BY HEARING and AT ALL TIMES, then how can we fulfill that, when we are single handed and have been at sea long enough that we have to sleep?


Well, what is prohibited by Rule 5 is not single-handing -- it's failure at any time to maintain a proper lookout by sight and by hearing, etc. So to the extent you are able at all times to maintain a proper lookout by sight and by hearing, despite your lack of crew, then obviously there is no violation.



Also, there is certainly some room for interpretation of what "at all times" means. Obviously, you are allowed to blink. All of us leave off keeping a proper lookout to go below and take a leak, for example -- is that a violation? Could a single-hander cat napping for only 10 minutes at a time be considered to be "maintaining a lookout at all times"?



This is in fact the argument which Jessica Watson used in the civil case concerning her single-handed collision with the Silver Yang; she also blamed her radar for not waking her up. The court didn't buy it, and she was assigned an equal part of the blame in the collision. The Australian Transport Safety Bureau [equivalent of the MCA], in its official report on the incident, stated:


"This incident clearly demonstrates the conundrum that exists between long distance solo-sailing and the legal requirements of the COLREGS. Since it was not possible for the yacht’s skipper to keep a watch by sight and hearing at all times, it was not possible for her to comply with the COLREGS."



https://www.atsb.gov.au/media/1539485/mo-2009-008.pdf




Some on here have disagreed that it is impossible to comply with Rule 5 while sleeping. Some of the arguments made:


* "[A]t all times maintain a proper lookout by sight and hearing" means "proper watch" by some kind of effective means, not necessarily by sight and by hearing. The only thing actually required is a "proper watch"; the Rule does not mean that "by sight and by hearing" is required "at all times"; just a "proper watch".



* It cannot be impossible to comply with COLREGS while single handing for long distances, as various officials don't stop single handed races and even give certification to some of them. This proves that it is legal.





So in case anyone wants to discuss this further -- the legality of single handing under circumstances where it is not possible to stay awake all the time -- here is a thread for it, which will not distract from the discussion in the other thread of the moral side of the question.





This is a subject I have a special interest in, and I have tried to read everything relevant which is extant. I am particularly interested in any relevant statement of authority which I might have missed, especially if it contradicts the position I've outlined above, before I make a fool out of myself in print.

[Dockhead]

Originally Posted by TeddyDiver

Lucky me still having both hands

Claim:
Being anal is not the point of Colregs and even suggesting it's illegal to singlehand is moraly wrong.

and why:
Before anything else everybody should themself behave in a way not being a nuisance or a danger to other traffic and worry less what-if's of others as long they act accordingly. If not then there's a reason to complain and judge the particular vessel in question.
Every vessel (and skipper) make a sometimes a violation against the rules, if not yet then it's coming eventually..

Teddy

I agree with all of this, except the bit about "even suggesting it is illegal to single hand, is immoral."


I guess that was a joke, but to be clear -- whether something is OK and whether something is illegal, are two different questions. Wise men may disagree about whether it is OK to sleep while no one is keeping a lookout -- my own opinion is that it is not especially risky and quite OK, provided it's done with good seamanship and proper precautions (not in a traffic area, good electronic aids properly set up and operated, etc. etc.). But whether it's legal or not is an entirely different question, and the answer is not a matter of our opinions, but of what the law says and means.


As to the COLREGS not being "anal" -- YES. A lot more weight is given to due care and good seamanship, than to fine legal points -- the COLREGS are designed like that, and Rule 2 talks about it specifically. Another reason why I think that while it is beyond any doubt that sleeping while no one is keeping a lookout is a violation of Rule 5, it is not actually a big deal if you do it in a proper seamanlike manner.

[Dockhead]

Originally Posted by estarzinger

Yes. As they explained to me - it is viewed as a process designed to keep a “proper watch”, and there is a definitive mandate for it to have a human sight and sound component, for it not to totally rely on electronic gear watching.

That is clear.

The question/uncertainty is different - it is if the by sight and watch is a direct clause of at all times, or if it is an as necessary component of a proper watch (with proper watch being the component which is at all times).
. .. .

If it is "clear" that there is a "definitive mandate" for a "proper watch" to have sight and hearing in it, then what difference does it make what part of the sentence "by sight and by hearing" forms (as if it were unclear, but for the sake of discussion)?


Cockcroft says:


"The term ‘proper look-out’ has always been interpreted by the Courts
as including the effective use of available instruments and equipment,
in addition to the use of both sight and hearing."





And so if there is a "definitive mandate" for sight and hearing to be part of a "proper watch", as it seems everyone agrees, then you cannot be keeping a "proper watch" while sleeping -- at least if you close your eyes when you're asleep like most people.

[Dockhead]

Originally Posted by jtsailjt

. . . I personally wish the Colregs would spell out some guidance regarding just what a singlehanded sailor should do when he inevitably feels exhausted, both so he’d know what he must do in order to remain legal and others would know what to expect from singlehanders and everyone would be safer. By not addressing the issue of singlehanded or short handed crews crossing oceans they are putting these people in a position where they can’t possibly comply with rule 5 and other vessels see them pop up on their radar and expect them to give way but they don’t because they are asleep and that puts a greater burden on the crewed vessel that must accept 100% of the responsibility to deconflict them. . .. But I wish there was guidance that recognized the reality of singlehanders and get us all on the same page so we’d know what to reasonably expect from them and they’d know what was expected of them.

Well, the Rules are clear -- you must maintain a lookout at all times when you are at sea. If you set off without adequate crew resources to fulfill that requirement, and don't manage to somehow do it by yourself, then you are in violation of the law. That enough guidance for you?



But whatever the law says, there is no culture of handing out tickets for violations which don't lead to collisions, or preventing people from leaving port (except in cases of gross unseaworthiness of commercial vessels), or whatever, and always a lot of leeway is left for the discretion of the master, who is ultimately responsible for the result, and his general seamanship. But that is CULTURE, not law -- different questions. So the law requires one thing, but no one actually prevents you from violating it, and there are usually no consequences if you don't actually have an accident, and so everyone has to kind of make do with the practical reality.



And so single handing in conditions which make it impossible to stay awake at all times is widely tolerated (not universally, by the way), and if you are really careful about it, I don't think many people will complain. This might change if we see a lot of gruesome accidents involving high speed round the world racers, say, God forbid.


Make no mistake, though -- obeying the COLREGS is a legal obligation and even if there is rarely any enforcement of them without an accident, people DO get prosecuted for violating them, under certain circumstances. In the UK, the MCA has a whole team which pursues criminal prosecutions against mariners who violate the COLREGS or other maritime laws -- the MCA Enforcement Unit. Under the (admirable) UK system of transparency, summary reports of ALL of the prosecutions carried out can be read online:


https://www.gov.uk/government/collec...nd-information


There are no prosecutions of single handed sailors here, but interestingly, the number one violation, leading to prosecutions and fines, is failure to maintain a proper lookout in violation of Rule 5. While they may choose not to enforce the Rule against single handed sailors in cases up to now, they have every right and authority to even put you in jail for it, if they choose to, in a "serious" case which involves a risk of injury etc. See the enforcement policy here:


https://www.gov.uk/government/public...licy-statement


An accident actually resulting from the violation, is not required for a criminal prosecution to take place.

[sailorchic34]

As the US coast guard does not stop or arrest the sailors entered in the single handed Transpac, a single handed race from SF to Hawaii, one can say with some assurance that single handing is not Illegal.

I have been stopped for coast guard safety inspections 4 times and not once was I fined or ticketed for sailing single handed. If it really was Illegal, I'm pretty sure I would have been ticketed by now.

Of course things may be different in other parts of the world.

[David M]

Good point Sailorchic.

Someone might argue that not all laws need to be enforced when it makes no sense to charge the violator.

In a different scenario, if a watch officer on a ship went below to take a nap and there was a collision then that person should sure as hell be charged with violating the law, the COLREGS.

The Coasties and other authorities may see the difference as the potential of doing a large amount of damage and/or causing a large loss of life on whether or not to enforce the law.

Also when the COLREGS were re-written back in 1972 from the 1960 rules, the IMO may not have even taken into consideration the scenario with single handers, since that organization is more larger vessel/commercial shipping based.

The COLREGS have been wisely written to not define everything down to the most minute detail, such as what defines a proper watch. This lack of detailed definitions gives countries more latitude in going after the worse, most egregious of the offenders........which solo sailors are not.

[Dave_S]

Schrodinger's cat (or mono)

You are both at fault and in compliance until you have a collision.

[GordMay]

"... According to the latest publication of the EU Integrated Maritime Policy, any EU member flagged vessel, or any vessel transiting EU controlled waterways, will be restricted to 12 hours of operation per crew aboard. The fines for not adhering to this law, or for not keeping a detailed log-book of watches, can be up to 100,000€ and/or 1 year in prison.

Said a spokesman from the European Convention's office of Maritime Affairs "This is not a new law. This is simply the progressive enforcement of existing law. Our water is too crowded with commercial traffic to allow individuals to operate water vehicles [sic] without lookouts." There have been, thus far, no arrests made ..."

Of course, Yacht Pals posted this on April 1, 2014.

[Pelagic]

Originally Posted by Dockhead

As to the COLREGS not being "anal" -- YES. A lot more weight is given to due care and good seamanship, than to fine legal points -- the COLREGS are designed like that, and Rule 2 talks about it specifically. Another reason why I think that while it is beyond any doubt that sleeping while no one is keeping a lookout is a violation of Rule 5, it is not actually a big deal if you do it in a proper seamanlike manner.

Ok, I am not a lawyer so I need a bit of schooling in this.

Interpretation of a specific law or rule generally happens in a courtroom BECAUSE someone feels that law is relevant to the events that caused the damages...yes?

So ... if the ability of a solo sailor on day 7 of his passage to maintain a "proper lookout" is held in question and "experts" testify that there would be huge gaps in both physical and cognitive awareness....does that not then become part of a legal judgement?

If yes and that legal precedence is set.....and let's say confirmed right up to Supreme court level. Would that not then become a working definition of whether the practice of extended solo sailing is "illegal"?

My guess is that this has not happened because their has never been enough commercial motivation to take it to that level of precedence. So no determination of ilegality has been ratified into law and administered (thank god)

If it was for example, on a commercial aircraft carrier where the company decided it was ok to just have a solo pilot on a 13 hr long haul and the plane crashed.... Is there already a precedence confirming that decision is illegal?

If YES, then I think a solo sailor runs the same risk, if argued in the Courts.

[Dockhead]

Originally Posted by Pelagic

Ok, I am not a lawyer so I need a bit of schooling in this.

Interpretation of a specific law or rule generally happens in a courtroom BECAUSE someone feels that law is relevant to the events that caused the damages...yes?

So ... if the ability of a solo sailor on day 7 of his passage to maintain a "proper lookout" is held in question and "experts" testify that there would be huge gaps in both physical and cognitive awareness....does that not then become part of a legal judgement?

If yes and that legal precedence is set.....and let's say confirmed right up to Supreme court level. Would that not then become a working definition of whether the practice of extended solo sailing is "illegal"?

My guess is that this has not happened because their has never been enough commercial motivation to take it to that level of precedence. So no determination of ilegality has been ratified into law and administered (thank god)

If it was for example, on a commercial aircraft carrier where the company decided it was ok to just have a solo pilot on a 13 hr long haul and the plane crashed.... Is there already a precedence confirming that decision is illegal?

If YES, then I think a solo sailor runs the same risk, if argued in the Courts.

It seems very difficult for people to get their heads around the idea that something might not be enforced, or might not be enforced much, or might not be enforced except in case of an accident, and yet -- it's illegal, and not only if an accident occurs.


This is a common situation, actually. A lot of things are illegal but there is little enforcement. The policy about enforcement -- whether, and when a given law will be enforced -- is actually a very substantive issue, sometimes as substantive as the law itself, and it is very admirable that the UK has started to publish these policies.


So but to answer your question -- of course, a solo sailor who is not fulfilling Rule 5, takes certain risks of trouble. If there is an accident, he might be prosecuted but he will most certainly be given a significant share of the responsibility for the accident, if he was sleeping when it happened. If there is no accident, it is unlikely that anything will happen to him, but it's not impossible, because nothing prevents the authorities from enforcing the law if they wake up one day and feel like it for some reason.



Probably most people who set off on long single hand voyages simply don't care. They take a raft of different risks and however you slice this once, it just doesn't move the needle.

[David M]

Probably true. Most people who go to sea for fun are trying to get away from all the rules and laws that made living on land less fun. Most probably don't give a rip about Rule 5 and in a certain way, good for them.

[ArmyDaveNY]

I think we have been missing something in this discussion and that is whether the vessel is under way. I don't think anyone would argue that one needs to keep a lookout when anchored. Certainly one still has to monitor things so make sure they are not dragging and so on, but I don't think anyone would expect the vessel to have a lookout while anchored.


If we accept this, then the next logical step is to consider what Dockhead pointed out on the other thread. There is nothing wrong with taking a nap under certain circumstances, such as not in shipping lanes, not in well traveled areas, away from shore, etc. If you're not underway, does this mitigate your need for a lookout? In particular, if you are 1,500 NM from shore, and are hove to, and in the middle of nowhere, does this change things?


I would think that a board of inquiry would consider that and assign either no blame or more likely reduce the amount of blame it assigns to you if there were an incident.

[James S]

So what happens when you lose crew or their ability to perforrm on a passage... yet still under command.. but forced to effectively single hand?

[Kelkara]

I think almost said everything I have to say I said on the other thread ... but the Jessica Watson case is interesting, so I'll add a few points here ...

Originally Posted by Dockhead

Also, there is certainly some room for interpretation of what "at all times" means. Obviously, you are allowed to blink. All of us leave off keeping a proper lookout to go below and take a leak, for example -- is that a violation? Could a single-hander cat napping for only 10 minutes at a time be considered to be "maintaining a lookout at all times"?

I see no difference between going below to take a leak, or to take a nap ... If you're not watching the horizon, you're not watching the horizon, whatever it is you may be doing ... Are you suggesting that the law would see it differently?

Why should there be any ambiguity in the phrase "at all times" ... the wording is simple: "shall at all times maintain a proper watch" ... meaning that at no time (not even a blink) should your watch be improper. The ambiguity to me is how to interpret "proper" which is a much less precise word ... the wording suggests "proper" means that you have included "sight and hearing" into a "full appraisal of the situation" ... but doesn't specify how you must do that.

This is in fact the argument which Jessica Watson used in the civil case concerning her single-handed collision with the Silver Yang; she also blamed her radar for not waking her up. The court didn't buy it, and she was assigned an equal part of the blame in the collision. The Australian Transport Safety Bureau [equivalent of the MCA], in its official report on the incident, stated:

"This incident clearly demonstrates the conundrum that exists between long distance solo-sailing and the legal requirements of the COLREGS. Since it was not possible for the yacht’s skipper to keep a watch by sight and hearing at all times, it was not possible for her to comply with the COLREGS."

https://www.atsb.gov.au/media/1539485/mo-2009-008.pdf

Thanks for posting this link, it is very interesting ... I have a few comments you might like to think about.

The quote you snipped above is clearly in error. It says "It was not possible" ... however she had only been underway for 17 hours, it is very possible to remain alert for 17 hours, so it clearly was possible ... what it maybe ought to have said is "It will not be possible over the course of a circumnavigation" ... As such it does not solve the question as to whether they believe that cat-napping is a breach of rule 5, or simply that it is not possible to maintain a cat-napping schedule for a circumnavigation.

The next paragraph suggests that cat-napping does not meet obligations, but it is written from Jessica's point of view, and so stops short of being the court saying it.

In the findings, the only mention of her sleep pattern is in this 'contributing safety factor':

About 5 minutes before the collision, Ella’s Pink Lady’s skipper checked for ships in the area, both visually and on the radar, but she did not detect Silver Yang. She then went to bed for a short sleep and remained there until she was awakened by the collision.

It is not clear to me here whether they are saying that taking a short sleep was the problem, or whether taking a short sleep after failing to detect a ship less than one mile away was a problem. The real problem that this paragraph is talking about is the actual failing to detect a ship in close proximity.

The findings are clear that a 'contributing safety factor' she was not using "all available means", but they only specify AIS, they do not mention that she was not using "sight and hearing" as either a 'contributing safety factor' nor as an 'other safety factor'.

Under 'Safety Action' in the category 'Appropriate watch keeping' the only safety issue mentioned is to do with AIS ... no mention of cat-napping or "sight and hearing" at all.

Nor does the summary mention either sleep or failing to use "sight and hearing" as a factor ... it just says "not keeping a proper watch etc", which is a no brainer, since there was a ship less than one mile away and she didn't see it despite using her eyes and radar when she was awake ... the ship didn't appear while she was sleeping.

The Australian Transport Safety Bureau (ATSB) investigation found that Ella’s Pink Lady was not fitted with a passive radar reflector and that, at the time of the collision, neither the yacht’s skipper nor the ship’s watch keepers were keeping a proper lookout or appropriately using the available electronic aids to navigation to make a full appraisal of the situation and the risk of collision.

Some on here have disagreed that it is impossible to comply with Rule 5 while sleeping. Some of the arguments made:

* "[A]t all times maintain a proper lookout by sight and hearing" means "proper watch" by some kind of effective means, not necessarily by sight and by hearing. The only thing actually required is a "proper watch"; the Rule does not mean that "by sight and by hearing" is required "at all times"; just a "proper watch".

No - "sight and hearing" are clearly specified as necessary means, and a "proper watch" is clearly required "at all times" ... what is not clearly specified is continuous and unbroken sight and hearing.

* It cannot be impossible to comply with COLREGS while single handing for long distances, as various officials don't stop single handed races and even give certification to some of them. This proves that it is legal.

This only proves that, if it is illegal, authorities don't care, so it might as well be legal ... what is illegal is having an accident.

[transmitterdan]

Which countries laws (if any) are violated by a solo sailor on the open ocean outside all territorial waters?

When fog surrounds the boat making visibility zero does that cause an immediate violation of COLREGS due to lack of sight? Obviously not.

The word “proper” in the rule gives a lot of wiggle room to argue against the pedants’ who would have us believe solo sailing in and of itself violates the regulations. It does not.

Countries are free to pass more stringent rules but those are not part of the COLREGs. IMO having more restrictive laws violates the principal of the COLREGs as being universally the same everywhere.

With proper aids to navigation and good seamanship solo sailors are at less risk of collision than many crewed maxi racing yachts.