Rule 5 -- Is Single-Handing Illegal?

[Dockhead]

Originally Posted by 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 ...

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?

No, I agree with you. That was my point. I think actually that if you went below for even two minutes to take a quick leak, and you managed to get run down by a ship while you were there, in the middle of the ocean, you would be cited for failure to keep a proper lookout. Even though the ship could not have appeared out of nowhere, and there were obviously some very big other failings.

Originally Posted by Kelkara

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.

Well, I didn't say “at all times” is ambiguous -- I just said that there is some room for interpretation. Blinking certainly does not mean you’re not doing it “at all times”. As for going below for 2 minutes to take a quick leak – I am not sure. 5 minutes? I don’t think there is a bright line, and different judges will apply their own judgement. But I doubt any judge would accept an argument that you are maintaining a lookout “at all times”, if you sleep for 15 minutes at a time, on the basis that 15 minutes, like a blink, is so short as to not be deemed a lapse of “at all times”, and I’ve never run across any single case nor any authority, which says otherwise.

As to “proper” -- I don’t think this word is very important, in that sentence. In my opinion it’s a catch-all intended to emphasize that the lookout must be effective, and might require doing more than what is specified. But “sight and hearing” is not optional – there must be “sight and hearing” “at all times”, but I think everyone has come around to that by now already, and it’s certainly what the authorities say, as well as being pretty obvious from the plain meaning of the text.

Originally Posted by Kelkara

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.

I don’t agree that there is any error. The 17 hours is a nit which doesn’t mean anything. “Is”; “will not be”; who cares – what he means is very plain. What the commissioner was talking about was the same thing that we have been talking about – she set out on a voyage without the crew resources to comply with Rule 5 (so already “is” impossible), and she in fact did not comply with Rule 5. It is impossible to comply with Rule 5 if you don’t have the crew resources (or the necessary bottles of amphetamines) to have someone awake and looking out “at all times”, considering the length of the passage.
As the commissioners said (on page 24): “There is no substitute for keeping a proper lookout at all times by sight and hearing, and all other appropriate means.”

Originally Posted by Kelkara

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.

There’s no need to mention sight and hearing again – the violation was failure to keep a proper lookout, plain and simple. She was asleep. The “sleep pattern” is irrelevant in this point, she was actually asleep, for goodness’ sake. There were various contributing factors, but the root violation was, plain and simple, sleeping when she was obligated to be looking out and making a full appraisal of the situation. Don’t be distracted or confused by the secondary factors, background, analysis of her procedures, etc. Note that this was a formal investigation by the ATSB which was primarily concerned with identifying all safety factors and lessons to learn, not with apportioning liability.

Originally Posted by Kelkara

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.

These are not separable concepts. “proper lookout at all times by sight and by hearing” – is a single concept. And note well that the term is “lookout”, not “watch”, and the difference is important. There is a vast amount of authority, on top of plain common sense, for the proposition that if you’re not looking out, there is no lookout, proper or otherwise. On top of that, there can be no “full appraisal of the situation” if you are sleeping.

Originally Posted by Kelkara

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.

Sure, but “might as well be legal” is not the same as “legal”, and “some authorities” is not “all authorities”. The Irish, for example, have threatened to prosecute single handers and issued a stern warning about watchkeeping requirements (http://www.dttas.ie/sites/default/fi...20-correct.pdf). There’s nothing to stop them, if they choose to start handing out fines (or jail sentences). So don’t get carried away with “might as well be legal”. Toleration is not the same as legality.

[Dockhead]

Originally Posted by 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.

A couple of questions raised here.


First of all -- it may be surprising to some, but the obligation to maintain a lookout under Rule 5 does NOT indeed depend on being underway. Yes, you are obligated to maintain a lookout while at anchor, something we all violate:


"The duty to keep a proper look-out applies also when a vessel is at
anchor, especially if there is a strong tide running, or if other vessels
are likely to be passing by."



Cockcroft cited a case where the judges harshly dealt with a ship which had assigned a low level and unqualified seaman to be the lookout while the ship was anchored, and subsequently dragged and collided with another vessel.


As to the other question -- yes, Cockcroft, and cases cited by him, and others say that the circumstances change the intensity of watchkeeping which is required. Certainly the standards are different in the Dover Straits or on the Thames, than they are in the middle of the ocean -- nevertheless, he says:


"There is some justification for relaxing the degree of look-out in the
open Ocean where other vessels are infrequently seen and are unlikely
to be encountered so as to involve risk of collision. However, collisions
occasionally occur in such areas, indicating the need for a
proper look-out at all times."

[Dockhead]

Originally Posted by 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.

Just because someone does not get arrested for something, on some particular occasion, does not mean that it's legal. I drove past a policeman at 85 mph a few months ago on the M3 (speed limit 70). He didn't arrest me. So does that mean that "one can say with some assurance that driving 85 mph on the M3 is not illegal"? Of course not. Enforcement and legality are two different questions!





As not being fined or ticketed for single-handing yourself -- now that is a different story. No one has said that single handing itself is illegal. What is illegal is sailing the boat without maintaining a lookout by sight and by hearing at all times. So if you single hand, and go below to sleep, leaving the vessel without any lookout, now that's illegal, even if few people are arrested for it.

[Kelkara]

Originally Posted by Dockhead

[/FONT]As to “proper” -- I don’t think this word is very important, in that sentence.

Well I'm going to totally disagree with you there ... I think it is the most important word ... It qualifies what kind of lookout you must maintain ... If they didn't want to qualify "lookout" why include an adjective at all? Try using a different adjective and it totally changes the whole meaning eg. "casual lookout" or "uninterrupted lookout" have opposite meanings as to how frequently sight and hearing is needed, "proper" lies somewhere between (but a lot closer to one end than the other). There are very few words in the rule that are open to any interpretation, and that is one of them.

What the commissioner was talking about was the same thing that we have been talking about – she set out on a voyage without the crew resources to comply with Rule 5 (so already “is” impossible)

This is irrelevant ... either it is permissible to take your eyes off the horizon for 5 minutes or it is not ... you may be correct that it is not, but you haven't yet cited anything that specifically says it, although this does come close. if you insist eyes must be looking out "at all times" without flexibility, then even looking down at the radar will be a violation and require a second crew member to monitor "all other appropriate means" ... if there is flexibility, how long can you look away? Nothing you have shown yet says that five minutes is too long ... we're only talking about 5 minutes, not 8 hours.

The Jessica Watson case is in fact a complete red herring: She failed to see a Panamax ship bearing down on her while she was awake and using her eyes, ears and radar ... she had already comprehensively failed to maintain a proper watch long before she took a nap. Look at the AIS track, the ship she didn't see was closer to her than the one she did.

On top of that, there can be no “full appraisal of the situation” if you are sleeping.

I did agree with you on that in the other thread ... but if you think that there is any flexibility in "at all times" then allow me some flexibility in "full" ... an empty horizon in all directions does give you a pretty close to "full" appraisal that there is no risk of collision for the next five minutes.

The Irish, for example, have threatened to prosecute single handers and issued a stern warning about watchkeeping requirements (http://www.dttas.ie/sites/default/fi...20-correct.pdf).

It is indeed a stern warning, but except "in a case of collision" I see no threat to take to court, and certainly no statement that single-handing is illegal ... they still require a lookout to be "proper" and by "sight and hearing" they even bolded "at all times", but they did not bold "by sight and hearing" nor "proper" so until they do prosecute someone we still don't know what their interpretation is.

[Paul L]

Some judicial reasoning reasonably requiring a single hander to keep watch

*450 The obligation to maintain a proper lookout falls upon great vessels and small alike. Matter of Interstate Towing Co., 717 F.2d 752 (2d Cir.1983) (failure of "small pleasure craft" to maintain proper lookout held to contribute to her collision with barge under tow).

In the case at bar, Granholm's decision to go below during the nighttime was negligent. His own testimony reflects an awareness that this was so. I have previously quoted the relevant portion; Granholm said that "as a rule I made it a habit to take my resting periods during daytime and when the conditions were such that I could afford having some rest." The reasons are obvious. At night a sailboat, even displaying the proper lights, is not nearly as visible as she is in the daytime, when underway under sail. Granholm was sailing near a recognized transatlantic route for large vessels. He should have adhered to his own practice and rested only during the daytime. It may seem unfeeling to condemn single handed transatlantic sailors for sleeping at night. But they pursue this hazardous avocation voluntarily, and are not exempt from the requirements of prudent seamanship.

The charge against plaintiff of improper lookout does not depend solely upon his decision to go below. Accepting as I do his testimony that the impact occurred less than thirty minutes after Granholm went below, his failure to observe the lights of the oncoming EXPRESS is inexplicable and inexcusable. Defendants' expert witness Hardy testified, and I accept, that on a clear night the navigation lights of the EXPRESS should have been visible up to fourteen miles away. We may reduce that distance to ten miles; even then, at the EXPRESS's speed of eighteen knots her lights would have been visible to Granholm for 33 minutes prior to collision, assuming the CAMERA was making no headway at all. The EXPRESS's lights should have been visible to Granholm before he went below. And Granholm was obligated in the circumstances to occasionally scan around the horizon, including astern, an obligation he recognized by doing so before going below. Cf. Stevens v. United States Lines Co., 187 F.2d 670, 674-75 (1st Cir.1951).

Plaintiff's failure to observe the lights of the approaching EXPRESS before collision places him in an inescapable dilemma. If, as his own testimony would indicate, the lights of the EXPRESS were visible when Granholm went below, he is at fault for not having seen them. But assuming that Granholm went below before the EXPRESS's lights became visible (so that he was asleep for a greater period of time before impact than his testimony would suggest), the fact remains that he left his vessel entirely without a lookout in circumstances which rendered such action negligent. There is no question but that plaintiff could and should have taken evasive action if he had observed the approaching EXPRESS.

[Jim Cate]

As a light hearted aside, I wonder if anyone told the Queen that Chichester's voyage was a criminal act before she knighted him for the accomplishment?

Jim

[AKA-None]

Following

[RaymondR]

Originally Posted by Jim Cate

As a light hearted aside, I wonder if anyone told the Queen that Chichester's voyage was a criminal act before she knighted him for the accomplishment?

Jim

Nah, not a consideration, her namesake predecessor knighted Walter Raleigh and gave him command of the British navy of the time.

[StuM]

Originally Posted by transmitterdan

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

The vessel's "flag state".

[Dockhead]

Originally Posted by Kelkara

Well I'm going to totally disagree with you there ... I think it is the most important word ... It qualifies what kind of lookout you must maintain ... If they didn't want to qualify "lookout" why include an adjective at all? Try using a different adjective and it totally changes the whole meaning eg. "casual lookout" or "uninterrupted lookout" have opposite meanings as to how frequently sight and hearing is needed, "proper" lies somewhere between (but a lot closer to one end than the other). There are very few words in the rule that are open to any interpretation, and that is one of them.

This is irrelevant ... either it is permissible to take your eyes off the horizon for 5 minutes or it is not ... you may be correct that it is not, but you haven't yet cited anything that specifically says it, although this does come close. if you insist eyes must be looking out "at all times" without flexibility, then even looking down at the radar will be a violation and require a second crew member to monitor "all other appropriate means" ... if there is flexibility, how long can you look away? Nothing you have shown yet says that five minutes is too long ... we're only talking about 5 minutes, not 8 hours.

The Jessica Watson case is in fact a complete red herring: She failed to see a Panamax ship bearing down on her while she was awake and using her eyes, ears and radar ... she had already comprehensively failed to maintain a proper watch long before she took a nap. Look at the AIS track, the ship she didn't see was closer to her than the one she did.
I did agree with you on that in the other thread ... but if you think that there is any flexibility in "at all times" then allow me some flexibility in "full" ... an empty horizon in all directions does give you a pretty close to "full" appraisal that there is no risk of collision for the next five minutes.
It is indeed a stern warning, but except "in a case of collision" I see no threat to take to court, and certainly no statement that single-handing is illegal ... they still require a lookout to be "proper" and by "sight and hearing" they even bolded "at all times", but they did not bold "by sight and hearing" nor "proper" so until they do prosecute someone we still don't know what their interpretation is.

OK, so why don't we step back for the big picture --


After all this thinking about it, have you come to the conclusion that this:


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


Can be construed to permit sleeping underway while no one is looking out?


Or not?


If the answer is positive, and if you're really interested in the subject, why don't you do some reading and come back with anything you can find, whether it's a court case or statement of some authority, which supports such a position?


If you do actually find something, then I will be deeply in your debt for saving me making a fool out of myself in print. There are at least a few beers in it for you! Cheers.

[Kelkara]

Originally Posted by Paul L

Some judicial reasoning reasonably requiring a single hander to keep watch
...

And Granholm was obligated in the circumstances to occasionally scan around the horizon

Interesting that they claim his obligation was only "occasionally" not "at all times"

Also from the same case:
https://law.justia.com/cases/federal...6/435/2593336/

In the case at bar, Granholm's decision to go below during the nighttime was negligent. His own testimony reflects an awareness that this was so. I have previously quoted the relevant portion; Granholm said that "as a rule I made it a habit to take my resting periods during daytime and when the conditions were such that I could afford having some rest." The reasons are obvious. At night a sailboat, even displaying the proper lights, is not nearly as visible as she is in the daytime, when underway under sail. Granholm was sailing near a recognized transatlantic route for large vessels. He should have adhered to his own practice and rested only during the daytime. It may seem unfeeling to condemn single handed transatlantic sailors for sleeping at night. But they pursue this hazardous avocation voluntarily, and are not exempt from the requirements of prudent seamanship.

Note that it doesn't condemn single-handed sailors for sleeping .. just for sleeping at night! I wonder if the ruling would have been different if he had set his alarm for 5 minutes instead of 30 minutes.

[Kelkara]

Originally Posted by Dockhead

If the answer is positive, and if you're really interested in the subject, why don't you do some reading and come back with anything you can find, whether it's a court case or statement of some authority, which supports such a position?

I am interested in this, since I believe that by taking 5 minute naps I would be able to extend my passage time up to two days (or maybe more) ... without increasing any risk of collision.



Jessica Watson clearly thought that this was OK, but unfortunately the report on her accident didn't have to specify whether it was or not, since she so clearly failed to keep watch while awake.


The Granholm case does cite him for "failure to maintain any lookout at all at night" which certainly make sit look bad, but he set his alarm for 30 minutes ... and the ruling also includes the following:

The charge against plaintiff of improper lookout does not depend solely upon his decision to go below. Accepting as I do his testimony that the impact occurred less than thirty minutes after Granholm went below, his failure to observe the lights of the oncoming EXPRESS is inexplicable and inexcusable

Which suggests that there is a timeframe somewhat less than 30 minutes whereby it would have been OK if there wasn't an oncoming ship with bright lights.


I'll look for anything else, but I'm not having much luck with google to find anything one way or the other.

[Dockhead]

Originally Posted by Kelkara

I am interested in this, since I believe that by taking 5 minute naps I would be able to extend my passage time up to two days (or maybe more) ... without increasing any risk of collision.



Jessica Watson clearly thought that this was OK, but unfortunately the report on her accident didn't have to specify whether it was or not, since she so clearly failed to keep watch while awake.


The Granholm case does cite him for "failure to maintain any lookout at all at night" which certainly make sit look bad, but he set his alarm for 30 minutes ... and the ruling also includes the following:

Which suggests that there is a timeframe somewhat less than 30 minutes whereby it would have been OK if there wasn't an oncoming ship with bright lights.


I'll look for anything else, but I'm not having much luck with google to find anything one way or the other.

Actual legal research requires more than just Google. I am going to write that it cannot be argued that sleeping other than the briefest of catnaps can be justified under Rule 5, and if there is any shred of authority to the contrary, I would be exceedingly grateful to be stopped.





However, for whatever it may be worth -- if you are able to stay somewhat rested by taking 5 minute naps as you suggested (5, and not 10 and not 15) between maintaining a proper watch by sight and by hearing, and this is done well offshore and away from traffic, and with alarms competently set, it's my opinion that this is more like blinking, and not inconsistent with maintaining a lookout "at all times". Not every judge shares my opinion, probably, so don't rely on it, but I really don't think that would be a violation.


And furthermore, as I have written, I don't condemn even a frank violation of the Rule, if it's done with skill and taste and under the appropriate circumstances.



I think actually that you could heave to (well offshore and out of traffic etc.) and show NUC and go get your sleep and be in perfect compliance with the Rules as well as common good seamanship. It's a somewhat creative interpretation of NUC status, but in my opinion absolutely sound, and you really endanger no one this way. In my opinion it's more seamanlike than carrying on under way with no one looking out. Something to keep in mind.

[Paul L]

Originally Posted by Kelkara

...
Which suggests that there is a timeframe somewhat less than 30 minutes whereby it would have been OK if there wasn't an oncoming ship with bright lights.


I'll look for anything else, but I'm not having much luck with google to find anything one way or the other.

Note that in this appeals case the 30 minutes came from the plaintiffs, not the judge. The judge just used it in his reasoning.

[roverhi]

Who gives a damn. Will continue to solo sail. It's my life that's at risk and, despite what government regulations try to do, i'm responsible for it. Yes there is a very small chance that if I had a collision with another boat that another party could be damaged or injured but it's extremely small that my boat would be big enough to come out the winner.

Coastal passages without keeping watch is dangerous to myself and the boat because of the hard stuff you could run into, not other boats. I try to keep passages to less than 48 hours as I've found out that going sleepless for more than that makes for some entertaining alternate reality experiences.

FWIW, the only time I've come close to being run down wasn't solo and we were maintaining a watch. We were under sail at night with my wife on the helm while I was asleep. She saw the ship but misjudged its speed and course. By the time she woke me up, the ship was nearly on us and an Oh Sh*t tack had us surfing away off the bow wave probably less than 20' from the ship. The ship obviously wasn't maintaining a watch as a few degrees course change would've had them clearing us easily. It wasn't that my wife was playing chicken with the right of way rules, she was fairly new to sailing though had stood night watches in heavily trafficed areas before, and just misjudged the closure rate until it was almost too late to get out of the ship's way.

Save me from those who are trying to save me from myself.