"Jeff Morris" wrote in message
...
"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."

I'd still like to see a link that describes any court overruling the
CollRegs.



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.



snip
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.

I don't go into London any more. I got a parking ticket for being 3
minutes late, about 10 years ago. I haven't been back since.






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.

Yes, I have claimed that the CollRegs require that the ship should be able
to stop. I've also said that the ship may maintain steerageway.

I take a pragmatic approach to the CollRegs. I believe that the authors
had the same idea.

In a road accident, if a car hits another car from behind, then the car
behind is 100% at fault. If a similiar event occurred at sea, then the
actions of the boat that got hit would be examined before a verdict was
reached.

After an accident, the police will beathanalyse the drivers. If one driver
is found to be over the limit, then he will be 100% responsible for the
accident. (this is *UK* law).

At sea, there is **no** right of way. ...... not even in a TSS.

I believe that you know this, as well as I do.







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?

Why do you have a difficulty with this concept? After all, you are saying
that ships do not have to be able to stop, or take avoiding action, within
sight of their victim in the TSS.


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).

I'm saying that there is no intrinsic bias. The CollRegs do not imply that
commercial vessels have more rights than other vessels. They use common
sense, and stipulate that ships that are confined to channels, for whatever
reason, should not be impeded.

It's common sense. No more, no less!







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?

My point is that the ship also has responsibilities. The master won't be
able to defend himself by saying that "The kayak had no business being
there".


What if the ship was doing 6 knots and had two lookouts on the bow? Then
the
ship might well be held blameless.


Not quite blameless, but certainly they would get off much more lightly.
Nevertheless, if you rewind back to the beginning of this discussion, then
you will realise that you have just made the point that I was trying to
make..... A ship should always have a lookout in fog.


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.

And the ship, by virtue of the collision, is also 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.

Really! The CollRegs do not mention the word "business". That has
absolutely nothing at all to do with anything.

Fog *can* set in when it is not forecast.

Fog *does* happen when the forecast says that it will be a clear, sunny day.

Stranger things happen at sea.


Regards


Donal
--