"Jeff Morris" wrote in message
...
"Rick" , sounding more like Jax every day, wrote:

Jeff Morris wrote:

Be careful, its a trick question - doing anything in accordance with
the law
is
legal. That doesn't mean you should do it. Ooops! I'm not permitted
to
say
that, am I?

Still have a few reading issues, Jeff. Can't or won't answer
the question, there are no tricks to it. Either you can
answer it or you can't.

I can answer. That doesn't mean I have to. But I already agreed: Yes, in
all
cases where one is compliant with a law, one is compliant with the law.
But
trying to prove something with a tautology just makes you look like a
fool.


So Rick, what if the kayak is not in accordance with the ColRegs, such
as
not
having a dedicated lookout? Then is it legal?

If the vessel is designed for and crewed by one person then
that person has the lookout duties. COLREGS or VTS don't
mandate crew size.

The kayak was designed for small lakes and rivers, not waters covered by
the
ColRegs.

It isn't my usual style to respond like this, but I feel that in this
instance it is necessary to let you know my true feelings.
"Awww for F*cks sake!!"

The CollRegs do not discuss suitability!


This is, in fact, an aspect of this that could be argued under rule 2.

Rubbish.



And since when does the designer of a boat determine its legality? If I
design
a boat to go 100 knots, does that make 100 knots a safe speed?

Read the CollRegs. It is covered.




And while the ColRegs don't specifically mandate crew size, it is the role
of
the courts to interpret the meaning of a "proper lookout." The have
stated in
many opinions, that in the fog, lookouts must be dedicated seamen, so that
they
can "exercise vigilance which is continuous and unbroken." They have
specifically stated that in the fog, the lookout duties cannot be shared
with
the helmsman.

You are the person who started this by thinking that a Radar watch was
sufficient.


And while small boats are given some leeway in good visibility,
or close to shore, they are not exempt in the fog.

Please quote an instance where the courts have suggested that a kayak needed
somebody standing on the bow to keep a lookout. I suspect that you have
really gone off the deep end in your attempts to keep your ludicrous
position alive.



And as you know, the opinions of the courts effectively become part of the
law,
and it is the duty of a master to be familiar with them. Or did that go
over
your head?

As I have already asked - please provide specific references.

Perhaps it is time that you took me up on my offer to let you off the
hook???
Trolling, or ignorant???



Regards


Donal
--

You seem to be disagreeing with my claim that the courts have the right to
interpret, modify, and even augment the rules, so I'm re-posting this snip from
Farwell's, 6th edition. This makes it pretty clear that the "law" is not just
the specific words in the ColRegs.

As for specific references to cases involving Kayays in TSS's reviewed by higher
courts, I never seen such a case in Farwell's, so I can only extrapolate from
other examples. Most of the citings involving small boats in the fog are along
the lines of "Although the rowboat was reckless in its attempt the cross the
river, the tug was assigned liability for not posting a lookout on its hip tow."
Because the legal texts are advising ship's masters, they don't focus much on
the responsibilities of kayaks.

Texts advising the paddler usually focus on the stupidity of being in traffic in
the fog, including the limited effectiveness of radar reflectors, not the
legality. (Although recently I've seen the "shall not impede" rule quoted more
often.) One problem, however, is that the rules in non-ColRegs waters are
often quite different. In many states, in inland lakes and rivers, rowboats,
canoes, and kayaks are given absolute right-of-way over powerboats. While this
may be appropriate, some kayakers will claim that this rule extends out onto the
ocean.

However, the legal point the Rick has been bringing up has to do with whether we
can say that something is illegal before an incident has occurred. After there
has been a "consequence" of an action, almost everyone has agreed that the kayak
would likely be assigned a significant portion of the blame (unless, of course,
the tanker really screwed up!).

Other comments interspersed.

From the chapter on Principals of Marine Collision Law:

Rules Modified by Court Interpretation
A fourth principle of the rules too often overlooked by the mariner in
his seagoing practice of collision law is that to avoid liability he must know
not only what the rules applicable to a given situation provide but what the
federal courts have interpreted them to mean. Judicial interpretation has,
in the history of the rules, performed three important functions. First, it
has determined the legal meaning of certain phrases not defined in the
rules themselves, such as efficient whistle or siren, flare-up light, proper
lookout, special circumstances, immediate danger, ordinary practice of
seamen, and risk of collision; it is in accordance with the meanings thus
established that these terms are construed in collision cases. Second, it has
filled certain gaps in the rules, sometimes modifying the statute to do this.
...
Third, judicial interpretation has
been used not only to eliminate the old Pilot Rules found contradictory to
the old Inland Rules, but to reconcile occasional inconsistencies or con-
flicts in the latter.
....
Whatever the mariner thinks of the legal setup, which has the effect
giving the courts more authority over the rules of the road than the
Commandant, U.S. Coast Guard, who enforces them through the
inspectors, the mariner must obey the law as he finds it- and that means
in practice, as the admiralty judges interpret it. Notwithstanding the
that in this country we do not have special admiralty courts, but
federal judge may be required to hear a collision case, it will be found
the decisions have been, as a whole, sound in seamanship as well as in law.



"Donal" wrote in message
...

snip

If the vessel is designed for and crewed by one person then
that person has the lookout duties. COLREGS or VTS don't
mandate crew size.

The kayak was designed for small lakes and rivers, not waters covered by
the
ColRegs.

It isn't my usual style to respond like this, but I feel that in this
instance it is necessary to let you know my true feelings.
"Awww for F*cks sake!!"

The CollRegs do not discuss suitability!

So what do you think they mean when they say:

2(b) In construing and complying with these Rules due regard shall be had to all
dangers of navigation and collision and to any special circumstances, including
the limitations of the vessels involved, which may make a departure from these
Rules necessary to avoid immediate danger.

I don't think its too far-fetched to think that this is saying that because of
the "limitations" of a kayak, and the "immediate danger" of a TSS, the kayak
should not exercise its right to cross.

And aside from this, the courts have definitly ruled on suitable manning.
Undermanning is one of the issues that comes up often. One that I remember
involved a ship that had a bad passage and the crew was debilitated. Rather
than wait until they recovered, or ask for relief, they came into port claiming
NUC status. The courts held them fully liable for the consequences.



This is, in fact, an aspect of this that could be argued under rule 2.

Rubbish.

see above.




And since when does the designer of a boat determine its legality? If I
design
a boat to go 100 knots, does that make 100 knots a safe speed?

Read the CollRegs. It is covered.


Putz. This was hyperbole! The fact that a vessel is physically capable of
doing something, doesn't mean that it can always comply with the rules when
doing it. Just as a fast boat should refrain from going fast in many
situations, a vessel with limited means for posting a watch should avoid heavily
trafficked areas in limited visibility.

Rick was claiming that a boat designed for one person is exempt from the
criteria normally applied; I don't believe that's true.


And while the ColRegs don't specifically mandate crew size, it is the role
of
the courts to interpret the meaning of a "proper lookout." The have
stated in
many opinions, that in the fog, lookouts must be dedicated seamen, so that
they
can "exercise vigilance which is continuous and unbroken." They have
specifically stated that in the fog, the lookout duties cannot be shared
with
the helmsman.

You are the person who started this by thinking that a Radar watch was
sufficient.


No. You're reading into my comments something that isn't there, and certainly
not intended. I said that a lookout must be posted, but the helmsman is driving
effectively based on radar alone. In fact, the interpretations of the courts
have been specific that in the fog, the helmsman has to focus on the radar
and/or compass and is not a suitable lookout, therefore a second person on watch
is mandatory.



And while small boats are given some leeway in good visibility,
or close to shore, they are not exempt in the fog.

Please quote an instance where the courts have suggested that a kayak needed
somebody standing on the bow to keep a lookout. I suspect that you have
really gone off the deep end in your attempts to keep your ludicrous
position alive.


Well, as I said, I don't have any legal precedents that specifically mention
kayaks, but there are numerous case where insufficient lookout has been deemed
the primary cause of a collision. As early as 1833 a sailboat was held liable
for having no one on deck except the helmsman, and that was in clear weather.
(The "Rebecca" NY 1833, I assume you don't need the federal case number). The
lookout must be specifically charged (The "Harry Lynn" Washington 1893). It
has been often held that the duties cannot be shared with the helmsman or
officer of the deck ("Kaga Maru" 1927; "Donau 1931). There is a long list of
cases on this point.

The requirements in the fog are stricter. Kayaks may not be mentioned, but I
believe they are covered as "every vessel." From Farwell's:
"Under the general admiralty rules it is the duty of very vessel, when
navigating in the fog, to maintain a lookout in proper position, who shall be
charged with no other duty. A local custom cannot excuse a vessel from
observing this rule" (citings to several cases removed).

Farwell's goes on in this vein for a number of pages on the various
implications, with comments as "such a lookout must have no other duties, such
as conning or steering the vessel," but is summed up nicely with "The law
contemplates that every vessel underway shall exercise vigilance which is
continuous and unbroken."

The obvious question here is do the standards for larger vessels apply to small?
I readily agree that small boats are given a lot of leeway in this regard in
good weather, and in very protected environments. But there is no justification
for this in the fog, in areas trafficked by large ships. I believe you've
already agreed with me that fog is not a condition where the recreational
skipper tells his crew "go on below, I'll handle this on my own." On the
contrary, the often relaxed atmosphere is replaced with increased vigilance and
dedicated lookouts.

Is there something about a kayak that implies they need less vigilance then
other vessels? Operating one, especially promptly crossing a channel in chop,
swells, and wakes, maintaining a course in the fog would seem to require a
virtually fulltime effort. Its hard to see how a singlehand kayak even begins
to fulfill its responsibility to maintain a proper lookout in adverse
conditions. You might be able to argue that a two-man kayak can do it, but that
would reduce their ability to quickly transit the zone. You've argued often
that ALL vessels must follow the rules, why are you claiming in this case that
kayaks are exempt?




And as you know, the opinions of the courts effectively become part of the
law,
and it is the duty of a master to be familiar with them. Or did that go
over
your head?

As I have already asked - please provide specific references.


Was the Farwell's quote sufficient? Or are you claiming, like Neal, that
they're part of a great liberal conspiracy?


Perhaps it is time that you took me up on my offer to let you off the
hook???
Trolling, or ignorant???


I'm not trolling. I've stood by everything I've said, shared my logic, provided
references, and explained which parts are simply my opinions. What have you
done, other than to blatantly lie about what I've said, and make vague
assertions that the ColRegs support your vague claims?