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Old 26-03-2019, 08:13   #256
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Re: When neighboring boat disagrees

Quote:
Originally Posted by thinwater View Post
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U.S. Admiralty Court decision number 124-5861 of 1956 says:
“A vessel shall be found at fault if it … anchors so close to another vessel as to foul her when swinging … and/or fails to shift anchorage when dragging dangerously close to another anchored vessel. Furthermore, the vessel that anchored first shall warn the one who anchored last that the berth chosen will foul the former’s berth.”
I found this interesting because it stated the obligation of the first anchored vessel to "warn" the second anchoring vessel
What I called in an earlier post....to ("Note Protest")

Dockhead claims that even so, financial apportionment of damages are usually 50:50

I don't have easy access to legal records to dispute DH, but it just doesn't ring true in Commercial shipping incidents where the first anchored vessel, hampered by loading or unloading cargo or bunkers from a tanker, was fouled by a new arrival and found responsible of ignoring first vessel's warning.

These are Incidents I remember from Hong Kong harbour in the 1980's.

Also in Vancouver Harbour where I operated a Pilot Boat out to English Bay.....

.... Ocasionally the trip was for the Pilot to be in attendance when a newly anchored ship was told by VTS and Port Control to re-anchor, because it was deemed to have fouled its neighbour's anchorage.

So if etiquette favours the established anchored vessel remaining in place and the added Pilot costs of reanchoring a 2nd vessel is to the 2nd vessels account, then why is that responsibility to shift not carried over to damages apportionment if the first anchored vessel had "Noted Protest" but was hampered to move because of Pilot Requirements or Cargo handling operations?
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Old 26-03-2019, 08:37   #257
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Re: When neighboring boat disagrees

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Originally Posted by GordMay View Post
Damm - that's some fine memory! I'm impressed.


Lloyd's Law Reports:


THE "DIOMED." (1946) 80 Ll.L.Rep. 164
“Collision - Anchored vessels - Dragging - Foul berth - Collision between motor vessel Kota Baroe and steamship Diomed in Durban Roads - Vessels at anchor, with Diomed astern of Kota Baroe and to leeward of her - Sudden squall - Impact between stem of Diomed and port quarter of Kota Baroe, followed by further impacts between port side of Diomed and stern of Kota Baroe - Whether Diomed anchored too close to Kota Baroe and gave her foul berth or whether Kota Baroe negligently dragged her anchor - Evidence of complaint made by master of Kota Baroe, in accordance with Port Instructions, that Diomed was anchored too close.”
https://www.i-law.com/ilaw/doc/view.htm?id=143487

THE “PEARL” AND “JAHRE VENTURE” [2003] EWHC 838 (Admlty.)
[2003] 2 Lloyd's Rep. 188
“Collision - Vessels at anchor - Apportionment of liability - Collision in Fujairah “B” anchorage - Allegations of fault - Whether claimants’ or defendants’ vessel 100 per cent. liable for collision - Apportionment of liability for collision.”
https://www.i-law.com/ilaw/doc/view.htm?id=149438


“Foul Berth”
https://books.google.ca/books?id=hoV...0berth&f=false



Ha, ha. Well, the memory is not what it used to be, but it was honed at one time by getting through law school and practicing for a number of years and there might be a bit of it left.


As I said, Google is an unsatisfactory law library, but here are three old cases from an old treatise I happened to find on board:


The Innisfail and The Secret, 36 L. T. N. S. 819 -- one vessel gave another a foul berth, dragged into the other one, but because it happened in bad weather, liability was apportioned 50:50.


The Maggie Armstrong v. The Blue Bell, 2 Mar. Law Gas. O. S. 318, 319 One ship gave another a foul berth and collided with her in a gale. First ship solely liable (so it does happen sometimes).


The Sapphire, 11 Wall. 164. An old U.S. Supreme Court case. One ship (the Sapphire) gave another a foul berth and failed to use both anchors; then failed to get the second anchor down when the first one started dragging. However, the ship the Sapphire dragged into was held equally liable, for failure to do anything to avoid the collision which then happened when a gale blew up. Although a watch was being maintained, the captain was not on board, and the first officer was asleep, and although he was warned of the dragging Sapphire, he failed to get on deck in time to do anything. 50:50 apportionment of liability.





Good illustration of one strong principle of maritime law -- your liability in a collision is not determined by what the other vessel did or did not do. It's determined by what YOU did or did not do. If you did not do everything possible, you will share at least some of the liability.


If someone swings into you, or collides with you at anchor, and no one is on watch, you will share a LOT of the liability, regardless of whether the person who swung into you came later.


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Old 26-03-2019, 09:14   #258
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Re: When neighboring boat disagrees

I never argue with someone who dropped their hook prior to my arrival; that's just the etiquette I learned a thousand years ago, and it makes sense in that it's the newcomers who are changing the physical situation upon which the decisions of those already anchored were based. This rule is sorely tested sometimes when night is falling, weather is threatening, the anchorage is so crowded that there ARE no other spots, or egos come into play. Friendly communication is always advised.
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Old 26-03-2019, 09:22   #259
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Re: When neighboring boat disagrees

Quote:
Originally Posted by Pelagic View Post
I found this interesting because it stated the obligation of the first anchored vessel to "warn" the second anchoring vessel
What I called in an earlier post....to ("Note Protest")

Dockhead claims that even so, financial apportionment of damages are usually 50:50

I don't have easy access to legal records to dispute DH, but it just doesn't ring true in Commercial shipping incidents where the first anchored vessel, hampered by loading or unloading cargo or bunkers from a tanker, was fouled by a new arrival and found responsible of ignoring first vessel's warning.

These are Incidents I remember from Hong Kong harbour in the 1980's.

Also in Vancouver Harbour where I operated a Pilot Boat out to English Bay.....

.... Ocasionally the trip was for the Pilot to be in attendance when a newly anchored ship was told by VTS and Port Control to re-anchor, because it was deemed to have fouled its neighbour's anchorage.

So if etiquette favours the established anchored vessel remaining in place and the added Pilot costs of reanchoring a 2nd vessel is to the 2nd vessels account, then why is that responsibility to shift not carried over to damages apportionment if the first anchored vessel had "Noted Protest" but was hampered to move because of Pilot Requirements or Cargo handling operations?

I didn't say "usually 50:50". That would have been the case under the old equal division of liability rule, but that's been gone since the 1910 Brussels Collision Convention which abolished the equal division of liability and abolished all legal presumptions about who is at fault in what situations (never ratified by the U.S., but proportionate liability was introduced after the Reliable Transport case in 1975). But now it will be in proportion to the fault of the two vessels. If you anchored first, but were not on watch when the later arriving boat swings into you, you might well end up with more than 50% of the liability.


In the last several decades there has only been one English collision case where damages were divided 100:0.


This might also be different in U.S. waters, and elsewhere. The U.S. still has (to some debatable extent), the so-called "Pennsylvania Rule", which creates a legal presumption of fault with respect to either or both vessels, if they violate one of the collision rules. So that means that if you did not specifically violate one of the COLREGS, then your chances of being assigned less of the liability, are improved, in U.S. waters. But most of the rest of the world specifically abolished all such presumptions in 1910. The only way to avoid liability is to prove that you employed at all times exemplary seamanship and did everything humanly possible to prevent the collision, without regard to the other vessel's violation.




And I never said that a vessel coming later and giving an earlier anchored vessel a foul berth, has no obligation to move. On the contrary! Of course it does. I only said that if the later coming vessel fails to do so for whatever reason, you must move yourself if that is the only way to ensure the safety of your vessel and prevent a collision. If it's possible, of course (we discussed some cases where it's not).



What you absolutely cannot do, is just say to yourself "it's his problem; he should have given me enough room", and wait for the collision. And God forbid you should just go to sleep and leave your boat without an effective watch. The point is that his obligation to give you a clear berth, does not create any privileges in you, with respect to avoiding a collision.


However, with respect to whether you can charge the later coming vessel for pilotage (or a tug, or whatever) -- I believe you absolutely can. If that expense was incurred because of a violation of the later coming vessel's obligation to give you a clear berth, then I believe you could sue him for it.

I nowhere intended to diminish the obligations of the later coming vessel, which I think everyone agrees about. My point was only that these obligations do not diminish our own obligations to keep your own vessel safe and prevent a collision.
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Old 26-03-2019, 09:29   #260
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Re: When neighboring boat disagrees

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Old 26-03-2019, 10:09   #261
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Re: When neighboring boat disagrees

personally I distrust the practical usefulness of any anchoring etiquette item that involves the word "law"
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Old 26-03-2019, 10:45   #262
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Re: When neighboring boat disagrees

Quote:
Originally Posted by danielamartindm View Post
I never argue with someone who dropped their hook prior to my arrival; that's just the etiquette I learned a thousand years ago, and it makes sense in that it's the newcomers who are changing the physical situation upon which the decisions of those already anchored were based. This rule is sorely tested sometimes when night is falling, weather is threatening, the anchorage is so crowded that there ARE no other spots, or egos come into play. Friendly communication is always advised.

I agree with you, however -- I do reserve the right to not comply with unreasonable requests. Very rarely but sometimes I will anchor over someone's objections, but really only if there is just no other place, and only if the objecting sailor has really misjudged the distance (which is easy to do).


Friendly communication is indeed an essential tool, and even better, beer therapy. It can be tricky.
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Old 26-03-2019, 11:14   #263
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Re: When neighboring boat disagrees

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Old 26-03-2019, 12:58   #264
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Re: When neighboring boat disagrees

So this old wooden boat came into the anchorage 2 days ago and dropped anchor next to me (I wasn't here when they dropped so don't know where their anchor really is). This morning with the wind shift they are now 1 boat length away from me. I saw them on the beach a while ago and asked how much chain they had out and I'm not sure if their answer is 180' total or 90' for each as they said they have 2 anchors out. I only see 1 chain down so don't understand their 2 anchor answer, and I have about 80-90' out. Their rode may even be laying on mine!!!! They say they are planning on taking off for a couple of months! They even said they notice they are kind of close to me!

Now I'm all and my wife is having ME the bitch wings about it
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Old 26-03-2019, 13:01   #265
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Re: When neighboring boat disagrees

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Originally Posted by sailorboy1 View Post
So this old wooden boat came into the anchorage 2 days ago and dropped anchor next to me (I wasn't here when they dropped so don't know where their anchor really is). This morning with the wind shift they are now 1 boat length away from me. I saw them on the beach a while ago and asked how much chain they had out and I'm not sure if their answer is 180' total or 90' for each as they said they have 2 anchors out. I only see 1 chain down so don't understand their 2 anchor answer, and I have about 80-90' out. Their rode may even be laying on mine!!!! They say they are planning on taking off for a couple of months! They even said they notice they are kind of close to me!

Now I'm all and my wife is having ME the bitch wings about it



So maybe move?
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Cushion me soft . . . . rock me in billowy drowse,
Dash me with amorous wet . . . . I can repay you."
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Old 26-03-2019, 13:05   #266
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Re: When neighboring boat disagrees

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So maybe move?
Yes we are considering it, but it's bs. There was lots of empty space here 2 days ago when they showed up. But there's a blow coming tomorrow so now the place is more packed so there isn't a good place for me to move to.
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Old 26-03-2019, 13:49   #267
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Re: When neighboring boat disagrees

When I "throw down the challenge" I actually mean I WANT people to find references rather than just give opinions. I'm glad that Dockhead did and truly appreciate the effort. The law is weird and more information helps.


This is not a simple one. The one that troubles me in my local waters, from time to time, is when I have been anchored for some time, and then at the last moment before an epic afternoon Chesapeake squall, someone anchors too close. Holding is often not that great (soft mud) which means that he may drag and moving and getting anchored somewhere better in 10 minutes is pretty much impossible. I know anchoring and I know I can't do it. In many cases, I honestly believe that d___ing around with the anchor to the roll of nearby thunder and lightning is unsafe. I won't do it, not because I am lazy or chicken, but because I believe that doing so increases the risk of a serious accident.


What you can often do, even in a storm, is increase scope, or sometimes, move to one side by using a second anchor (boats yaw; drop it at the extreme).


Finally, this sort of thing is typically settled between insurance companies, and that is a whole other dynamic. I asked these questions of two insurance companies and they would not answer in any meaningful way.
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Old 26-03-2019, 13:51   #268
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Re: When neighboring boat disagrees

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.

In the last several decades there has only been one English collision case where damages were divided 100:0.


This might also be different in U.S. waters, and elsewhere. The U.S. still has (to some debatable extent), the so-called "Pennsylvania Rule", which creates a legal presumption of fault with respect to either or both vessels, if they violate one of the collision rules. So that means that if you did not specifically violate one of the COLREGS, then your chances of being assigned less of the liability, are improved, in U.S. waters. But most of the rest of the world specifically abolished all such presumptions in 1910. The only way to avoid liability is to prove that you employed at all times exemplary seamanship and did everything humanly possible to prevent the collision, without regard to the other vessel's violation.
Thanks Dockhead, I think the penny has finally dropped [emoji4] .

In the case of an external risk beyond your control, from another vessel fouling your anchorage:

My Marine College lecturers on Marine Law and Ship Master Business always emphasized
to prepare for contingency plans in case the event occurs.

That legally Noting Protest and diligent documentation of your preperatiions to avoid damages (Engine Room and Foredeck Crew on Standby) would help in your legal defense.

I am aware that Judgements differ by Jurisdictions as well as by Judge, but never knew the history....
...most enlightening!

Finally, all the above is for big ships where damages can be extreme both physically and environmentally.
For our small boats, friendly etiquette should be followed to alleviate any real risk, failing that, move at the first safe opportunity.

I find that usually the latecomer spends the night at anchor, where we both keep a close watch and then moves the next day.
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Old 26-03-2019, 14:00   #269
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Re: When neighboring boat disagrees

Quote:
Originally Posted by Pelagic View Post
Thanks Dockhead, I think the penny has finally dropped [emoji4] .

In the case of an external risk beyond your control, from another vessel fouling your anchorage:

My Marine College lecturers on Marine Law and Ship Master Business always emphasized
to prepare for contingency plans in case the event occurs.

That legally Noting Protest and diligent documentation of your preperatiions to avoid damages (Engine Room and Foredeck Crew on Standby) would help in your legal defense.

I am aware that Laws differ by jurisdictions as well as by Judge, but never knew the history.....most enlightening!

Finally, all the above is for big ships where damages can be extreme both physically and environmentally.
For our small boats, friendly etiquette should be followed to alleviate any real risk, failing that, move at the first safe opportunity.

I think we are in complete agreement.


But I think jurisidiction this or that, insurance company, whatever -- I don't think you need to even think about the law. I think the main thing is to proactively avoid getting into a collision, whatever it takes, not relying on any other vessel but only on yourself, and if you can't eliminate the risk, then moderate it as much as you can (keep an anchor watch for example) and be a good seaman. Other than that, suck it up if something does happen (why God created insurance, after all). I think that's about it.


And two thumbs up on the primacy of friendly etiquette
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Cushion me soft . . . . rock me in billowy drowse,
Dash me with amorous wet . . . . I can repay you."
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Old 27-03-2019, 02:27   #270
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Re: When neighboring boat disagrees

Quote:
Originally Posted by thinwater View Post
When I "throw down the challenge" I actually mean I WANT people to find references rather than just give opinions. I'm glad that Dockhead did and truly appreciate the effort. The law is weird and more information helps.


This is not a simple one. The one that troubles me in my local waters, from time to time, is when I have been anchored for some time, and then at the last moment before an epic afternoon Chesapeake squall, someone anchors too close. Holding is often not that great (soft mud) which means that he may drag and moving and getting anchored somewhere better in 10 minutes is pretty much impossible. I know anchoring and I know I can't do it. In many cases, I honestly believe that d___ing around with the anchor to the roll of nearby thunder and lightning is unsafe. I won't do it, not because I am lazy or chicken, but because I believe that doing so increases the risk of a serious accident.


What you can often do, even in a storm, is increase scope, or sometimes, move to one side by using a second anchor (boats yaw; drop it at the extreme).


Finally, this sort of thing is typically settled between insurance companies, and that is a whole other dynamic. I asked these questions of two insurance companies and they would not answer in any meaningful way.

I don't really see where we disagree on anything.


Just like in all collision avoidance situations, you just do the best and most seamanlike thing you can, which sometimes even requires deviating from the Rules.


If you can't practically or safely move, then naturally you don't move. And that's the same whether you came first or second, right? Of course.


If you can't move, but you judge the vessels are too close, then you take other measures. Veer some chain, put out another anchor, put out some fenders, warn the other skipper, and for God's sake -- keep a watch.


There's no privilege -- is the fundamental point. It's not actually so different from the case of being the stand-on vessel in a crossing situation -- yes, the give-way vessel is obligated to maneuver, but if it fails to for any reason whatsoever, including pure malfeasance, then you have to take the crossing into your own hands and sort it out. This is not optional.



Same with anchoring. Yes, the later-arriving vessel is obligated to give you a clear berth, but if it doesn't, you have to sort it out yourself, as best you can under the circumstances. If there's a collision, you will in any case find it hard to avoid ANY liability, and if you simply do nothing, just relying on the later arriving vessel to deal with it, thinking that it's solely his problem, you could end up with most or even all of the liability.



Especially if you fail to keep a watch when you knew there was a risk of his dragging or swinging into you, which is a really heinous violation of the COLREGS, regarded as worse than practically any other violation by the courts.



So if you hope to get any sleep while anchored, you really don't have any choice but to move until there isn't any material risk of someone dragging or swinging into you, and whether you came first or second is really immaterial in this regard. If you can't move, then forget about sleeping. It's unfair, but fairness is not the main point of the Rules -- it's safety.
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We must have a turn together . . . . I undress . . . . hurry me out of sight of the land,
Cushion me soft . . . . rock me in billowy drowse,
Dash me with amorous wet . . . . I can repay you."
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