"Jeff Morris" wrote in message
...

"Donal" wrote in message
...

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


I haven't found a good source to "free case studies" yet. I have posted
a link
to the Canadian Safety Board's ruling that 14 knots was a safe speed in
zero
visibility, and I posted a full page excerpt from the standard text on the
topic. I'll repeat the essential part:

"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 ... 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 conflicts in the latter."

You can chose to believe this is incorrect - maybe its time you did your
own
research.

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.

But the two are contradictory. If you believe both are the law, then its
OK to
break the law. This sounds rather hypocritical.

Do you think that one of them is incorect? If so, which one?






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.


What's the point to all this? How about this - a pedetrian dashes
across the
highway at night wearing black cloths and gets hit by a truck. Who's to
blame?

Without any further evidence, the pedestrian. is to blame. What's your
point?





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.


Again you're being hypocritical. You've insisted many times that the
rules are
paramount; now you're saying one can pick which to follow.

The rules are paramount, and yet they are also self contradictory. This
doesn't give me a major problem. Oddly enough, I am trying to say that you
*cannot* pick which ones to follow. I am trying to say that you must try
to balance them all *equally*.

As far as I can see, you are continuously assuming that the CollRegs are
biased in favour of the commercial operator. In fact, you recently said as
much. Shen agrees with you, and otn is almost convinced that you are
correct. Joe is absolutely certain.

Why, then, must power give way to sail?







There are certainly many situations not explicitly covered in the rules.
This
is where Rule 2 comes in. However, fog is not a very unusual condition,
and it
was well anticipated by the rules. The writer deliberately left the
meaning of
"safe speed" for the courts to decide base on individual situations.
These
rulings become guidelines for the future.

I've never heard of a court in one country using case history from another
country as evidence. Have you?

The CollRegs are the "IMO CollRegs". ie the "International" Maritime
Organisation's CollRegs. US courts have no right at all to set precedants.




The situation we're discussing is not a case where the rules must be
violated;
it is a case where the courts have ruled that steerageway should be
maintained,
and even higher speeds are permissible with good radar. In doing so, the
courts
have conceded that the kayak would be a severe risk if it cross a shipping
lane
in thick fog.






I repeat again what you ignored the first time:
Maybe you should consider that the courts have, in affect, modified the
law so
that its now something different from what you think.

I repeat again, "post a link" to back up your assertion.

I do *not* believe that any court has modified the IMO's CollRegs.





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!


It may be common sense, but its also the law. Are you claiming the rules
aren't
needed, because its all "common sense"?

No.

I'm claiming that the CollRegs contain an enormous amount of common sense.

You are saying that the CollRegs have an intrinsic bias towards big ships.
Big ships are usually powered by engines.
The CollRegs say that power gives way to sail.

It looks like the CollRegs have an intrinsic bias towards the rights of
sailing vessels.




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".


popbably not.


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.

Why not blameless? Where do you find fault?

I don't. I simply understand the concept that both parties are ultimately
responsible for avoiding a collision.

You really need to brush up on your interpretation of the CollRegs.



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 never denied it - I've claimed it is an absolute requirement from the
beginning.






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.

That is a myth. It is true that in most cases the courts have found a way
to
share the blame but its is certainly not true that a collision implies
that both
vessels must share blame. In fact, in a number of cases, both vessels
have been
held blameless.

Very weak. Your arguement would have much more credibility if you could
cite a case where one party was held 100% to blame.





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.

Hypoocrit again! You just cited "common sense," implying that it
overrules the
law!

No, I didn't.


I never said that I meant it was "illegal" or "in violation of the rules"
to be
there, I simply said he had no business being there.

What's your point? "Business" has nothing to do with a person's right to
sail upon the sea.

I cannot remember any references to the word "business" in the CollRegs.

What the hell has the word "business" got to do with a discussion about the
rights of vessels at sea under the CollRegs?


As in, it would be foolish
and foolhardy. "Common sense" say the kayak will be chum and the ship
should
be blameless; are you saying that's the law?
No.


It is true that a ship could be going too fast, and without a lookout, but
I
also claim it could be going at a "safe speed" (as defined by the courts)
and
have a "proper lookout" and would still be unable to stop in time to save
the
kayak. The kayak, however, is putting itself in a position where it is
very
likely it almost certainly would violate the rules if there was an
encounter.
Even in clear weather, if the kayak is relying on the ship avoiding it
with a
crash stop, its in violation.

That is really stupid. In clear weather, the kayak could easily avoid the
ship.






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.


Well, I could say "not very often," but inevitably this happens. However,
that
becomes the risk that the kayak takes. As I've said, I would have some
sympathy if it were a 100 yard channel, where the kayak could pick a
promising
moment to make a dash. However, a Channel crossing with its 5 mile lanes
is not
a proper place for a kayak. You keep asking me for links to court cases;
how
about if you post links about Channel crossings in kayaks?

This fellow was blind!!!!
http://www.canoekayak.com/news/blind/





Frankly. I have no idea what point you're trying to make. It seems like
you
just want to go around in circles. First you claim the letter of the law
is
the most important thing.

No, I'm trying to claim that the spirit is important. However I'm also
trying to point out that you are ignoring any of the Rules that you do not
agree with.

You are the one who is saying that a kayak has no "business" in a TSS. That
may, or may not be true. However it has absolutely nothing at all to do
with the CollRegs. Therefore, I ask you, why do you mention that a kayak
has no business in a TSS.

Then you say the law is contradictory and you're free
to do whatever, then you say the law is simply common sense. You falsely
assumed I disagreed with your lookout issue,

I don't think that is 100% true.

Why did you ask me to prove that a radar lookout was not adequate?


and therefore assumed that
everything I've said is fallacious. However, you've failed to show me
wrong at
any point.


You're definitely wrong about the "radar only" issue, aren't you?


Regards


Donal
--