An Appalling Example of California Justice . . .

[TaoJones]

Originally Posted by ronbo1

While I share the emotion and outrage expressed, the words you credit me with are from the editors of the fine 'Latitude 38' publication that can be found online. Only the bold font is mine...sorry if I didn't make that clear.

And the article from 'Lectronic Latitude, reprinted in its entirety in ronbo1's post, above, is from the mind and computer of Richard Spindler, publisher of Latitude 38. It is quite apparent that Mr. Spindler is feeling the same frustration many of us are feeling: Why is this miscarriage of justice being allowed to continue? Why is the California Attorney General, never shy about proclaiming himself champion of the weak at any other time in his political career, taking a hands-off approach to this case?

I wish I shared your confidence, Kai Nui, that as the process grinds on, the truth will emerge and all will be well. I'm afraid I've lived too long to believe that truth and justice always prevail in the end.

For Mr. Dinius, in particular, bur for all of us, as a society, I remain hopeful that not only is he cleared, but that the corrupt Lake County law enforcement officials who conspired to frame an innocent man so that a guilty man could go free will be held to account for their actions.

TaoJones

[dacust]

Originally Posted by TaoJones

I don't think anyone has argued that there is not blame enough to be spread around, Dan, but most of us who see this as unjust feel that the DA's decision to completely excuse the operator of the power vessel flies in the face of common sense.

And I think your last line is a pretty good summation of the DAs position; i.e., "If we can't come up with something like 'The sailboat was unlit,' we've got nothing, and our friend Chief Deputy Perdock is screwed!"

And if, as you seem to infer, the sailing vessel is at fault, how does that responsibility fall entirely on the head of one of the guests, who happens to be sitting at the tiller, and not on the owner of the vessel, a few feet away and also over the legal limit for intoxication?

TaoJones

Sorry, TaoJones, your response to me is totally understandable. I should probably have restated what I have before and not assumed everyone has read all the posts and remembered what was said by who.

I have said before, but not recently, that in THIS case that this thread is actually about, I think the fault lies at least mainly and probably ALL on the speedboat. What I was trying to point out in the recent posts, was first that we don't know all the facts and should not state things as if we did. And in the last 3 posts, that an unlit boat DOES incur liability even though the COLREGS doesn't spell it out that way. Before I started hunting down court cases I was willing to concede the possibility that I was wrong about that, but now I think I'm right. So IF it is determined that the sailboat was unlit, there probably is some liability there.

Once again, I say that based on the reportings of the press, I think the sailboat was probably lit, the speedboat is at fault and that there is a coverup going on. But that's only what I think from what has been reported. I don't actually KNOW what happened or what all the evidence is. And I think that the fact that the judge is letting it go to court doesn't make him an idiot.

Sorry Gord, I think I'm doing it again, going off topic. Although THIS post is directly related (only because TaoJones drug me back - thanks), the previous ones are tenuous. So I'm going to shut up now.

-dan

[dacust]

Now THIS is bizarre. I replied to you, but the reply ended up back at post 212!!!!

ronbo, Tao, I appreciate the clarification on the article. Great words.
I agree that justice moves slowly, but it does move. I too have been around long enough to see first hand, the corruption of the legal system, especially in Ca. That said, in all fairness, as with any legal case, only the parties involved know all of the facts, and only the attorneys handling the case know how they will present those facts. I do believe there is sufficient evidence to conclude that there is a cover up. I also feel there is sufficient evidence to conclude that Perdock has some responsibility, and should be charged. While I may agree 100% on Dinius' innocence based on the available information, I would not presume to state that I have all the facts. That said, I do whole heartedly agree this is a travesty of justice, and no matter the outcome, the credibility of the legal system in California will be damaged.
I just do not want the credibility of our community to suffer the same damage by falling trap to judgment without all the facts.

[dacust]

Originally Posted by Kai Nui

ronbo, Tao, I appreciate the clarification on the article. Great words.
I agree that justice moves slowly, but it does move. I too have been around long enough to see first hand, the corruption of the legal system, especially in Ca. That said, in all fairness, as with any legal case, only the parties involved know all of the facts, and only the attorneys handling the case know how they will present those facts. I do believe there is sufficient evidence to conclude that there is a cover up. I also feel there is sufficient evidence to conclude that Perdock has some responsibility, and should be charged. While I may agree 100% on Dinius' innocence based on the available information, I would not presume to state that I have all the facts. That said, I do whole heartedly agree this is a travesty of justice, and no matter the outcome, the credibility of the legal system in California will be damaged.
I just do not want the credibility of our community to suffer the same damage by falling trap to judgment without all the facts.

It'd be nice if more people would state their opinions like you have. You state what you think but acknowledge that you don't know all the facts. Thanks.

Totally separate from what I just said, I agree with you.

Someone earlier on said "any idiot in a robe...". But the judge has to simply act on the evidence he is presented with. If he sees that one side has experts saying one thing and the other side has experts saying the another, he CAN'T decide. He must let a trial decide. He can only decide if there is enough evidence to warrant a trial. Not enough evidence to convict, only enough to warrant a trial. He can be TOTALLY convinced that the person is innocent, but if there is enough evidence, he MUST allow a trial.

And Hiracer, you say that "The nautical rules of navigation require all vessels to avoid collisions with unlit objects, including unlit vessels.". But that's your words. The regs I read didn't specify "unlit" anywhere in them. Doesn't mean the rules don't mean that or can't be interpreted that way. But it doesn't say that. If I am mistaken about that, I apologize. Please show me where I am wrong. And the next paragraph is NOT intended to single you out. Please read the paragraph following that one before you get upset with me, please?

Basically, I think several people need to be a little more objective. I'm not saying your opinions are wrong, just that several are stating things as facts that are not known. And several people are making judgments on the case as if what we are hearing from the press is sworn testimony.

And, Hiracer, it's unfortunate that I addressed something you said and followed it up with that paragraph. All in all I think you have stated things very well. That paragraph was not specifically intended for you. Well, maybe for that one comment , but not as an overall attitude. I think we had a pretty good exchange earlier. We never agreed, but we had a good open discussion. Thanks.

-dan

[dacust]

Hiracer, I hope I get this posted before you reply. That sentence "Please read the paragraph following that one before you get upset with me, please?" should have been phrased something like "Please read the paragraph following that one before you get upset with me, otay? " to make it flippant. From your previous behavior I would expect you to be reasonable, and that sentence makes it sound like I don't. Sorry.

-dan

[GordMay]

Originally Posted by Hiracer

... Observation: The nautical rules of navigation require all vessels to avoid collisions with unlit objects, including unlit vessels. I challenge any and everybody to quote where the rules say vessels are excused from fault if they hit an unlit vessel. Sorry, the rules don't say that--for very good reasons ...

The rules say a lot of things.

The COLLREGS: PART B (STEERING AND SAILING RULES), specifically rules 6 (Speed) , 7 (Risk of collision), 8 (Action to avoid collision), 18 (Responsibilities between vessels), and PART C (LIGHTS AND SHAPES) Rule 20 will all apply.

[dacust]

Originally Posted by GordMay

The rules say a lot of things.

The COLLREGS: PART B (STEERING AND SAILING RULES), specifically rules 6 (Speed) , 7 (Risk of collision), 8 (Action to avoid collision), 18 (Responsibilities between vessels), and PART C (LIGHTS AND SHAPES) Rule 20 will all apply.

Sorry, I'm may be taking this out of context. Is that stating that all that would be taken into account in collisions?

[Hiracer]

Originally Posted by dacust

The regs I read didn't specify "unlit" anywhere in them.

Dan,

You just made my point. The COLLEG obligation to avoid collisions with objects and vessels does not make a distinction whether the object or vessiel is lit or unlit. That is precisely my point.

Thus, a driver of a motor boat must limit his speeds to whatever is slow enough to see and avoid hitting unlit objects and vessels. Period. It's that simple.

This is pretty basic. Why is this so hard to accept? The very essence of the rules of the road is collision avoidance. That's the core problem they are intended to solve. Their raison d'etre. (Did I spell that right?)

Some people want to debate this point. That's fine with me.
But if you want to debate this point with me, be prepared to quote where COLLREG say you can hit things without fault. I'm reasonably sure that they don't say that. Just the opposite. They say you are obligated at all times to avoid hitting all objects and vessels. No weasel words employed.

[TaoJones]

Originally Posted by Hiracer

<snip>

Their raison d'etre. (Did I spell that right?)

<snip>

Perfectly, Hiracer. The second word, d'etre, is a contraction of de (of, for) and etre (to be). And, of course, raison is French for reason, thus raison d'etre is reason, or justification, for being or existing.

A+ for Hiracer for his understanding of collision avoidance, as well.

TaoJones

[Hiracer]

Originally Posted by GordMay

The rules say a lot of things.

Gord,

Sometimes the most important thing is what the rules don't say.

One of the difficulties with Perdock's case is the fact that he hit Dinius.

Remember that Perdock came up from behind and hit Dinius from the rear. Dinius's forward motion contributed to this accident only in the since that it put him in the wrong place at the wrong time. But one cannot plausibly maintain that 'Dinius hit Perdock.'

Thus, Perdock violated one of the most basic and elementary rules of the road: don't go hitting stuff.

Further, this line of thought has no applicability to Dinius. Dinius didn't hit anything.

Perdock's defense, that he couldn't see the sailboat because it wasn't lit up, falls apart because Perdock was supposed to be going slow enough to see and avoid hitting unlit objects and vessels.

Perdock's position implicitly admits that, had he been traveling slower, he would have had time to see and avoid hitting the sailboat. He seems to imply that he was not obligated to avoid hitting unlit sailboats. That is the crux of his defense to the public outrage surrounding this case. That is the position that the DA is using to protect Perdock from prosecution.

That position, as I have pointed out, is simply not supported by the COLLREGs. It is an entirely vacuous argument.

And, I hope, helps to explain why I keep hammering this point over and over again, that the obligation to avoid hitting other vessels extends to unlit vessels as well. It is an important point in this case, me thinks.

[dacust]

Originally Posted by Hiracer

Dan,

You just made my point. The COLLEG obligation to avoid collisions with objects and vessels does not make a distinction whether the object or vessiel is lit or unlit. That is precisely my point.

Thus, a driver of a motor boat must limit his speeds to whatever is slow enough to see and avoid hitting unlit objects and vessels. Period. It's that simple.

This is pretty basic. Why is this so hard to accept? The very essence of the rules of the road is collision avoidance. That's the core problem they are intended to solve. Their raison d'etre. (Did I spell that right?)

Some people want to debate this point. That's fine with me.
But if you want to debate this point with me, be prepared to quote where COLLREG say you can hit things without fault. I'm reasonably sure that they don't say that. Just the opposite. They say you are obligated at all times to avoid hitting all objects and vessels. No weasel words employed.

Interesting reaction. Maybe you need to go read my post again a little more open mind. I was not in any way trying to argue whether your conclusions were right or wrong.

I was only pointing out that your wording said it stated "unlit", whereas it doesn't actually state it. I specifically said in the same paragraph that just because it wasn't stated didn't mean it wasn't included. I was showing that I recognize that just because you misquoted the COLREGS didn't mean your conclusions were wrong.

In the post overall, I was simply trying to say that I think we should be a little more careful about stating something as fact when it either isn't fact, or we have no way of knowing whether it is fact.

My interpretation is that it should not include illegally operating vessels if that illegal operation contributes to the collision.

Your interpretation is that is most definitely includes all vessels no mater what.

I totally understand your position. I see how it is the result of rational thought on your part. You have good reasoning.

I just disagree. And I don't think quoting COLREGS is going to prove it to me one way or another. I think it'd take court decisions for anyone to really know what it means. And actually, it could go either way, because the court will decide what it means even if the people who wrote it didn't mean it that way.

It'd be interesting, does anyone know of a case where an unlit vessel was charged in a collision where it would have been the other vessel's fault it they had been lit?

[dacust]

Here's the first one I've found.

PDF bersion. I loaded it once, but necxt time it wanted me to create an account.
FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code

This is the HTML version.FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code


It's a PDF of a court case finding.

Page 5 says:

The basis for this universal requirement is to protect persons and property
by enabling vessels to be able to see at night. Waring v. Clare, 46 U.S. 441, 465
(1847). “The extreme blackness of water at night makes any departure from light
rules ‘one of the most wrecklessly [sic] unlawful acts a vessel can commit.’”
Cliffs-Nedrill Turnkey Int’l Oranjesta The obligation to display proper lights is
firmly established by both domestic and international regulation as part of the law
of the sea. d v. M/T Rich Duke, 947 F.2d 83, 88 (3d Cir. 1991). Failure to comply
“shall be proved to exist when injury shall occur to persons or property, it throws
upon the master and owner of a steamer the burden of proof, to show that the injury done was not the consequence of it.” Waring, 46 U.S. at 465.

EDIT: I should point out that this was an appeal. Blame was found 50/50. I didn't read through enough, but it did state that cocaine was found in the captain of the moving vessel. The moored vessel was unlit (not in a charted mooring field).

[TaoJones]

As you suggest, dacust, when the question is before the court, nothing is cut-and-dried, and the historical record is not lacking in judicial decisions that hang by the most tenuous of threads.

That said, I don't think an 1847 precedent can realistically be claimed to have anticipated the notion of a powered vessel roaring through the dark at 45-60 mph, the operator of which is held blameless if he strikes a vessel (or anything else) simply for the reason that there is debate as to whether or not the vessel or object struck was unlit.

TaoJones

[dacust]

Originally Posted by TaoJones

As you suggest, dacust, when the question is before the court, nothing is cut-and-dried, and the historical record is not lacking in judicial decisions that hang by the most tenuous of threads.

That said, I don't think an 1847 precedent can realistically be claimed to have anticipated the notion of a powered vessel roaring through the dark at 45-60 mph, the operator of which is held blameless if he strikes a vessel (or anything else) simply for the reason that there is debate as to whether or not the vessel or object struck was unlit.

TaoJones

OK, we'll try another one. In this one, the boat operator was drunk and hit, not an unlit barge, but an inadequately lit one. And not in a marked channel, but a channel marked by spraypaint marks on a bridge. They were awarded over 19mil.

2006 Appeal

As far as the 1847 precedent goes, I didn't say it was fair, just that this is what the court decided. And this court applied that 1847 precedent in 2003. And just because it is that old does not seem to negate to me that "The basis for this universal requirement is to protect persons and property
by enabling vessels to be able to see at night." This case, BTW did not involve excessive speeds, but it did involve the vessel taking a wrong turn before they hit the unlit barge up the wrong channel.

But I agree with you. With the speeds boats are capable of these days, it would make sense to take speed into account, especially at night. Probably that would require to set a nighttime speed limit. However, at current there isn't one.

The link in this post does involve speeds of 22-34mph according to the court. And involved a drunk (just says he was above the legal limit, not how much). However, that's not 40-45 (the lower limit reported) as in the case this thread is about.