"Donal" wrote in message
...

"Jeff Morris" wrote in message
...
Rather than go at this line by line, I'll try to summarize a few of the
issues.

First, you've implied repeatedly that the ColRegs are the "final word" on
the
law. This is simply not so; the courts have the final say.

I would like to see any links that you can find where a court has overruled
the CollRegs?

I may be wrong, but I would expect that the courts are trying to interpret.

There are relatively few case of the courts "overturning" the current law, but
that is because they were carefully crafted to be consistent with earlier
rulings. In the past many rules were nullified becuase there were many
inconsistencies in the various local "pilot rules."

However, the modern rules do have things like the requirement for a lookout even
while at anchor or in a slip - the courts have ruled that isn't really needed.

Also, the concepts "safe speed" and "ordinary practice of seamen" are left
completely in the courts to decide, case by case.




There are a number
of issues that are left entirely to the courts, including the meaning of
phrases
such as "proper lookout" and "safe speed." Attempting to intuit the
exact
meaning of these phrases (as well as many other aspects of the ColRegs)
without
considering the applicable court decisions is futile. For reference, see
my
extract of Farwell's a couple of weeks ago, or I can repost.

I've no idea what Farwell's is.


"Farwell's Rules of the Nautical Road" was the standard text on the rules in
this country for much of the last century. Its out of print now, but I'm not
sure what has replaced it - its still the most common reference used.

Actually, I think I got my copy of the previous edition at Foyle's, in Charing
Cross.




Second, you've claimed that a safe speed is one that permits stopping when
a
hazard is spotted visually. Again, this is not so. Perhaps a bit of
history:
The old version of the rules used the phrase "Every vessel ... shall, in
the
fog, ... go at a moderate speed". There were various versions of the
meaning
of "moderate speed," but the common one was "the speed at which the
stopping
distance is half the distance of the visibility." The new rules, however,
wanted to address the much higher speeds vessel were achieving, and the
use of
radar, and so they replaced "speed to be moderate in fog" with "safe speed
at
all times." However, there is little mention in the rules of what a "safe
speed" actually is, that has been left to the courts. While the concept
of
"moderate speed" may still apply in crowded harbors, especially without
radar,
the courts have ruled that a "safe speed" may be higher in open water,
dedicated
shipping lanes, etc. They have also been clear the slowing down below
steerageway is in itself unsafe, so there are numerous cases where the
safe
speed was deemed to be 6 to 20 knots, depending on a variety of
conditions.

I've already said that I think ships have a duty to maintain steerageway.
I've also said that they seem, on average, to slow to about 12 kts. I don't
complain about this. I do complain about the ones that don't bother to
sound their fog horns.


At bare steerageway, it is rather unlikely that a ship can stop for a kayak, yet
you've claimed it is its duty to be able to do that.


In
the case I cited, the investigating body (the Canadian Transportation
Safety
Board) ruled that in zero visibility, the ferry doing 14 knots, but which
slowed
to 10 as the risk of collision increased, was traveling at a safe speed;
the
fishing boat however was going too fast at 8 knots, because of the poor
quality
of it radar and watch. BTW, this incident was in a protected channel,
near
shore, conceivably where a kayak could have been.

The implication of your claim is that in zero visibility all large ship
traffic
should stop.

I've been trying to point out that it can be impossible to simultaneously
obey all the rules. I haven't said that the ships should actually stop.


So what are you saying - its not required to obey the law? Maybe you should
consider that the courts have, in affect, modified the law so that its now
something different from what you think.


We know this does not happen, but even so, would it be safe? For
the ship to drift would be completely unsafe. Anchoring in a TSS is
strongly
frowned upon, and may be impossible. It is pretty clear that slowing
below
steerageway, perhaps 6 knots, would be both impractical and unsafe. And
what is
the stopping distance at 6 knots? For a large ship it would like be
hundreds,
perhaps 1000 yards or more. In fact, in the minute it takes to "reverse
engines" it would travel 600 feet - a distance the could easily exceed
visibility. It would seem pretty clear that the courts are willing to
permit
a vessel to travel faster that what in the old days would be considered a
"moderate speed."

You've questioned whether the ColRegs are "biased" towards larger ships -
I
claim the answer is, in some ways, yes! Consider that Rules 9 and 10 are
essentially a litany of situations where smaller vessels "shall not
impede"
larger ones. In fact, vessels are advised to avoid crossing a TSS, and,
if not
using a TSS, should avoid it by as large a margin as possible. When you
consider that in most harbors that large ships visit they come in from
well
offshore in a TSS, and then enter Narrow Channels, its clear that they are
favored by the rules in almost every situation.

My opinion is that ships should not be impeded in channels because that
would create a very dangerous situation.

Again, what are you saying - the rules don't count because they make too much
sense? You asked if the rules are biased towards large ships - the answer is
clearly "yes." In most of the possible situations the rules say the small boat
must not impede the large ship. That is the rule; it doesn't need your
blessing, it doesn't even have to make sense (though I agree that it does).




This brings us to the situation that started this - the kayak in the fog
in the
shipping lane. There is an aspect of this that I don't think you've every
addressed: the kayak "shall not impede the safe passage" of the large
vessel in
the TSS.

I think that I have answered it. I just haven't given the answer that you
want to see. I'll try again.

Imagine that a collision occurrs between a container ship and a kayak in a
TSS.

Visibility 200 yards.

Ship, under Radar alone, speed 20 kts, not sounding fog horn.

Kayak, crossing TSS at right angles, in company with other kayaks (the
witnesses).

How do you think that the courts would apportion the blame?

The ship would have a significant part of the blame. But what's your point?
What if the ship was doing 6 knots and had two lookouts on the bow? Then the
ship might well be held blameless. I've always agreed that if there was
anything the ship could have reasonably done that would have reduced the risk,
it could have some serious legal exposure. However, the kayak, simply by his
proximity to the ship is in violation.



This would be a difficult task for the kayak even in good visibility;
it would seem completely impossible to fulfill this obligation in the fog.
Yet, you've insisted it has every right to be there, and that it is the
obligation large ships to avoid the kayak, including stopping if there
exists
the remote chance that there could be a kayak in the vicinity. Why is it
that
the kayak has every right to completely ignore its responsibilities?

It doesn't have the right to ignore its responsibilities. Sometimes it
will get caught in fog.


Now we're back to the beginning. The kayaker was not magically transported to
the middle of the English Channel, he has deliberately chosen to be there, at a
time that had a potential for thick fog. He has no business doing that.