Sailboat collisions - Can responsibility be shared?

[BluJu]

Question arising out of a recent sailing incident.

Context: My wife, 2 young kids and I are cruising in coastal nova scotia water. Beautiful afternoon, 10-12 kts of wind, sailing upwind on a port tack, all sails out including a large genoa which obstruct the view downwind from our center cockpit. My wife is playing games in the cockpit with the kids, I’m trimming sails, checking our route, keeping an eye on the AIS and a couple of sailboats in the vicinity that we’re pretending to race with. No obstacles to navigate around up to our destination.

At some point, we hear someone scream and see a boat coming from downwind that hits us on starboard. The skipper (alone onboard) had just enough time to fall off to avoid a more perpendicular collision. The other boat (J-boat in the 30 ft range) bounced off of us (steel boat) and glided along the aft section of the vessel. No injuries or structural damage on either side, a few scrapes and gelcoat cracks on the J-boat and a slightly dinted steel plate and superficial paint damage on ours.

After the incident, we rolled our genoa and steamed to the other boat. She was on a startboard tack and so I acknowledged that I was at fault. Clearly I did not see her coming and the other skipper acknowledged that he did not see us either until a few seconds before the hit. We exchanged numbers, and I told him to contact me once he decided how to proceed.

The owner contacted me earlier this week. He will have the repairs on his boat done at a local yard. The cost comes close to my/his insurance deductible and so we’ve discussed to sort it out without an insurance claim. Under his proposition, I would cover an amount equal to the deductible and he would cover the difference (~ 25% of the total amount). I should point out that I’m handling all repairs on my boat on my own (mostly for financial and logistical reasons).

I don’t deny responsibility, and honestly feel really embarrassed about this event which I can only attribute to negligence, but I would like to understand how this case would be looked at by insurance or lawyers. Two cruising (i.e. non-racing) sailboats not restricted by any navigational hazards (e.g. shipping lane, shoals, etc..) collide, with the boat having right-of-way (starboard tack) hitting the other boat. My understanding of the rules of navigation is that boats should always take all actions to avoid a collision, even if they have right-of-way. We clearly both failed to maintain a proper lookout (for that purpose I was technically also single-handling) so my question is to what degree the other skipper may be at least partially responsible?

Thanks for any advice/opinion you might have.

[SailFastTri]

There's way too much extraneous information in your post, which clouds things a bit.

If he was on starboard tack, and he hit you on your starboard side (he was approaching from your starboard side) then he had right of way and was stand-on vessel. If both vessels admit to not seeing the other (failure to keep proper watch) or taking evasive action then some fault goes to the stand on vessels captain.

I don't know how a court would decide, but I would assume the stand-on captain would not be free of responsibility. Perhaps 20-25%?

[BluJu]

SailFastTri:

Good point, I was just trying to provide as much (maybe too much) context! The issue/question is best summarized by the last paragraph.

[StuM]

You really need to read some of the recent threads on COLREGs.

http://www.cruisersforum.com/forums/...rs-190361.html
http://www.cruisersforum.com/forums/...ns-189778.html
http://www.cruisersforum.com/forums/...ls-190360.html
http://www.cruisersforum.com/forums/...ns-189778.html


"with the boat having right-of-way (starboard tack) hitting the other boat. My understanding of the rules of navigation is that boats should always take all actions to avoid a collision, even if they have right-of-way."

There is no such thing as "right of way". That sort of thinking is what leads to situations like this.

Under the rules:

Rules 2,5,6,7 apply to both vessels equally - you are both equally at fault.

Rules 12 - 18 are covered by Rule 11 "Rules in this Section apply to vessels in sight of one another."

Since neither of you was aware of the other boat, you were not "in sight of each other" so the question of "stand on" or "give way" does not arise.

[danielamartindm]

First, thank goodness no one was hurt, and that the other skipper is a reasonable person. Everything you've said is true. You both failed to maintain an adequate watch and avoid collision (bottom line), you were the give-way vessel but when you didn't adjust course, at some point he should have. I'm not certain how a court would rule, if a percentage of fault would be assigned for the sake of determining awards; but I think you made a wise decision to settle it between you. It's scary how easily something like this can happen. Most vessels have their own unique "blind spots, and genoas really obscure that forward quarter. A mentor advised me to periodically set the autopilot and walk about the boat a bit, to see what might be obscured from the helm.

[StuM]

Originally Posted by SailFastTri

There's way too much extraneous information in your post, which clouds things a bit.

If he was on starboard tack, and he hit you on your starboard side (he was approaching from your starboard side) then he had right of way and was stand-on vessel. If both vessels admit to not seeing the other (failure to keep proper watch) or taking evasive action then some fault goes to the stand on vessels captain.

I don't know how a court would decide, but I would assume the stand-on captain would not be free of responsibility. Perhaps 20-25%?

He didn't have "right of way". He had an obligation to maintain his course and speed if he saw the other vessel - until such time as it became apparent that the give way vessel wasn't doing so. At which time he was obliged to take action to avoid the collision.

Both skippers are equally at fault for failing to maintain a proper lookout. End of story.

[BluJu]

StuM,

thanks for the reply, which is reassuring, though I still feel pretty dumb about the whole thing. I checked the lengthy threads you mentioned but failed to find a satisfying answer, hence my post. The incident did not arise as the result of any kind of thinking about the rules, but entirely due to a poor lookout. Won't happen again...

[rbk]

The answer to your post title, can liability be shared, in Canada and most likely the US as well...absolutely. There are many, easy to find rulings that support this even where you'd expect it to be a one sided ruling. The most unobvious that I've read was a house boat on a lake encountered mechanical failure and captain was working on engine with crew helping. Approaching power boat improperly trimmed bow up, intoxicated hits said houseboat, injuries and property damage etc, goes to court...powerboat MUST be at fault...not entirely. I believe the liability was split something like 80/20 in favour of the house boat. The 20% was for the houseboat captains failure to maintain or assign a proper lookout and indicate inability to maneuver.

[waterman480]

StuM > Since neither of you was aware of the other boat, you were not "in sight of each other" so the question of "stand on" or "give way" does not arise.

Not correct - they were only unable to see each other due to the failure to maintain a proper lookout. That rule refers to weather/distance conditions, not negligence on the part of the operator.

[StuM]

Originally Posted by waterman480

StuM > Since neither of you was aware of the other boat, you were not "in sight of each other" so the question of "stand on" or "give way" does not arise.

Not correct - they were only unable to see each other due to the failure to maintain a proper lookout. That rule refers to weather/distance conditions, not negligence on the part of the operator.

I stand corrected. (But it's not absolute)

Cockcroft again:
A vessel is unlikely to be excused for not complying with the appropriate Rule of Section TI if it is considered that failure to sight the other vessel was due to a bad visual look-out.

[Dockhead]

Originally Posted by StuM

. . . . Both skippers are equally at fault for failing to maintain a proper lookout. End of story.

This.

When such cases go to court, judges SOMETIMES hold that the stand-on vessel gets somewhat more of the responsibility for a collision (but never all of it), because the give-way vessel was supposedly not doing what it was supposed to doing for a longer period of time. In this case, if the facts are as they were presented, I agree with Stu that it's pretty much 50/50.

The stand-on vessel was equally responsible for seeing you and getting ready to maneuver, and then for maneuvering in time to prevent the collision. A big fail all around, but I don't think the OP's fail was any worse than that of the other vessel.

This is a good illustration of why, as Stu says, there is no right of way. If he had had right of way, then you would be entirely responsible for preventing the collision, but he did not.

[Dockhead]

Originally Posted by StuM

I stand corrected. (But it's not absolute)

Cockcroft again:
A vessel is unlikely to be excused for not complying with the appropriate Rule of Section TI if it is considered that failure to sight the other vessel was due to a bad visual look-out.

"In sight of one another" is usually interpreted to mean that the vessels COULD see each other, not that they DID see each other. Rule 3(k), General Definitions:

"Vessels shall be deemed to be in sight of one another only when one can be observed visually from the other."


I've never seen a case where failure to keep a watch was deemed to make the Steering & Sailing Rules inapplicable, and if there were such a case, I think it would be wrong. "Can be" means visual sighting is possible, not that it takes place.

Maybe Lodesman has seen some cases I'm not aware of.

[Lodesman]

Originally Posted by Dockhead

Maybe Lodesman has seen some cases I'm not aware of.

None that I'm aware of. A point you've made in many posts, is that the "stand on" vessel has far more responsibility - beside the various parts of rule 17, he should have sounded 5 short (34d). But I agree there is a tendency to weight higher for the failed steering/sailing rule(s). Probably would come out 60/40 with the OP getting the larger share of the blame.

[StuM]

Originally Posted by Dockhead

"In sight of one another" is usually interpreted to mean that the vessels COULD see each other, not that they DID see each other. Rule 3(k), General Definitions:

"Vessels shall be deemed to be in sight of one another only when one can be observed visually from the other."

I've never seen a case where failure to keep a watch was deemed to make the Steering & Sailing Rules inapplicable, and if there were such a case, I think it would be wrong. "Can be" means visual sighting is possible, not that it takes place.

Maybe Lodesman has seen some cases I'm not aware of.

Nit -picking time again. You say "usually", Cockcroft (quoted a few posts back), expresses a similar qualification.

Note the wording of "only when". That is completely different to "whenever" and makes the intent of the section something totally different to the point in question.

"Only when" is exclusive (it stipulates when vessels are deemed not to be in sight of each other, e.g. "They do not apply to vessels which have detected one another by radar but are not in visual sight - Cockcroft"),

"Whenever" would have been inclusive ( it stipulates when vessels are deemed to be in sight of each other).

Given the care with which the COLREGs were framed, I strongly suspect that the intent of the section is indeed exclusive.

[Dockhead]

Originally Posted by StuM

Nit -picking time again. You say "usually", Cockcroft (quoted a few posts back), expresses a similar qualification.

Note the wording of "only when". That is completely different to "whenever" and makes the intent of the section something totally different to the point in question.

"Only when" is exclusive (it stipulates when vessels are deemed not to be in sight of each other, e.g. "They do not apply to vessels which have detected one another by radar but are not in visual sight - Cockcroft"),

"Whenever" would have been inclusive ( it stipulates when vessels are deemed to be in sight of each other).

Given the care with which the COLREGs were framed, I strongly suspect that the intent of the section is indeed exclusive.

Well argued! Yes, you can argue that this particular passage intended to limit, rather than define.

This might be worth a separate thread. To answer the question, you have to probe the intent of the drafters - did they mean that Section II of the Steering and Sailing Rules apply only when vessels actually see each other? Or whenever conditions allow that they should be able to see each other? What does "in sight" mean?

It's an excellent nit. I'll need some case law. Would be a great junior associate research memo. Shame I don't have them anymore