Capt. Neal® wrote:
The way I read the Rules is both vessels are required by the
Rules to pass port to port. A reasonable judge could go by
that fact alone and conclude both vessels violated the Rules
equally and had they passed in accordance with the Rules
a collision would not have happened.

Problem is, if this is an "inland" situation, the rule states "unless
otherwise agreed"

What bothers me more about this situation is a Court
of Law ends up deciding fault which is proper but what
is NOT proper in my mind is for a court to make a decision
that sets precedent which might be applied to other situations
and the Rules end up getting morphed into something
unintended.

If that court is some State or Federal court, unfamiliar with the
MEANING of the rules, I'd agree. However, if the court is a Maritime
court, that becomes another matter.

I do not think the writers and signers of the Colregs intended
the Colregs to be a toy of the lawyers.

Sorry to say, lawyers are here to stay. Many of the changes to the
rules, have come about because lawyers were able to argue the wording of
the rules (hence, no longer "right of way"). This is not all that bad as
it's helped clarify many areas. However, one must never lose sight of
the fact that the "Rules of the Road" tend to rely more on the "spirit"
of the law, than they do on the "letter of the law" ..... i.e. Rule 2
......you are responsible for what you do, what you don't do, and what
you should or should not have done.

otn

CN


"Jeff Morris" wrote in message ...

otnmbrd wrote:

I'm surprised, yet not surprised, at the lack of response to this "test".
The answer can not be given without a great deal of clarification and I
note that Neal and Donal tried without asking those questions.
Jeff:
I'm assuming that this was based on an NTSB report or court decision?
So far, I can see responsibility being placed totally on A, Totally on
B, 50/50, and some places in between.
I'm hoping more will stop to think about this one and ask questions, as
it's not "cut and dried".

otn

The report is based on an article by Jim Austin in an Ocean Navigator
newsletter. This report was a bit skimpy on the facts and I probably
left out a few key things, but frankly there's no way to describe a
situation completely without reading 100 pages of testimony. Further,
the decision of the court will likely hinge on some very subtle point
that might never be revealed. All we can hope to do is try to
understand some of the factors that influenced the decision.

It isn't really a test, therefore, since we can only guess at the
answer. However, we can still ponder what questions would have been
asked and consider how that would have influenced the decisions. For
example, what if vessel B had not agreed to the starboard/starboard
passing? Would A have been able to slow enough to let B pass safely in
front, or was the situation doomed already because of A's delay in
signaling?

Or another question: normally when the second vessel agrees to a
departure from the rules it assumes some responsibility. But in most
cases the burden is shared equally from the start, as in a head on
meeting, or a give-way vessel is requesting an alternative that does not
greatly affect the stand-on vessel's course. In this case, however, a
vessel that might be give-way is requesting a serious (and as it
happened, impossible) course change by the other. How might this affect
the responsibility?

As you say, otn, things to think about.

What right does a maritime court in the USA have ruling
on the COLREGS which are an International body of
law signed on to by countries all over the world.

What if a maritime court in Namibia under the
auspices of some dictator decided the meaning
of the Colregs.

Would you feel comfortable with that?

The Rules should not be changed in a Court
of Law. The Rules should only be interpreted.

It is not up to courts and lawyers to rewrite
law. That is up to legislatures.

CN


"otnmbrd" wrote in message nk.net...
Capt. Neal® wrote:
The way I read the Rules is both vessels are required by the
Rules to pass port to port. A reasonable judge could go by
that fact alone and conclude both vessels violated the Rules
equally and had they passed in accordance with the Rules
a collision would not have happened.

Problem is, if this is an "inland" situation, the rule states "unless
otherwise agreed"

What bothers me more about this situation is a Court
of Law ends up deciding fault which is proper but what
is NOT proper in my mind is for a court to make a decision
that sets precedent which might be applied to other situations
and the Rules end up getting morphed into something
unintended.

If that court is some State or Federal court, unfamiliar with the
MEANING of the rules, I'd agree. However, if the court is a Maritime
court, that becomes another matter.

I do not think the writers and signers of the Colregs intended
the Colregs to be a toy of the lawyers.

Sorry to say, lawyers are here to stay. Many of the changes to the
rules, have come about because lawyers were able to argue the wording of
the rules (hence, no longer "right of way"). This is not all that bad as
it's helped clarify many areas. However, one must never lose sight of
the fact that the "Rules of the Road" tend to rely more on the "spirit"
of the law, than they do on the "letter of the law" ..... i.e. Rule 2
.....you are responsible for what you do, what you don't do, and what
you should or should not have done.

otn

CN


"Jeff Morris" wrote in message ...

otnmbrd wrote:

I'm surprised, yet not surprised, at the lack of response to this "test".
The answer can not be given without a great deal of clarification and I
note that Neal and Donal tried without asking those questions.
Jeff:
I'm assuming that this was based on an NTSB report or court decision?
So far, I can see responsibility being placed totally on A, Totally on
B, 50/50, and some places in between.
I'm hoping more will stop to think about this one and ask questions, as
it's not "cut and dried".

otn

The report is based on an article by Jim Austin in an Ocean Navigator
newsletter. This report was a bit skimpy on the facts and I probably
left out a few key things, but frankly there's no way to describe a
situation completely without reading 100 pages of testimony. Further,
the decision of the court will likely hinge on some very subtle point
that might never be revealed. All we can hope to do is try to
understand some of the factors that influenced the decision.

It isn't really a test, therefore, since we can only guess at the
answer. However, we can still ponder what questions would have been
asked and consider how that would have influenced the decisions. For
example, what if vessel B had not agreed to the starboard/starboard
passing? Would A have been able to slow enough to let B pass safely in
front, or was the situation doomed already because of A's delay in
signaling?

Or another question: normally when the second vessel agrees to a
departure from the rules it assumes some responsibility. But in most
cases the burden is shared equally from the start, as in a head on
meeting, or a give-way vessel is requesting an alternative that does not
greatly affect the stand-on vessel's course. In this case, however, a
vessel that might be give-way is requesting a serious (and as it
happened, impossible) course change by the other. How might this affect
the responsibility?

As you say, otn, things to think about.

Capt. Neal® wrote:
What right does a maritime court in the USA have ruling
on the COLREGS which are an International body of
law signed on to by countries all over the world.

Who better to address a case regarding a Maritime incident, than a court
that is primarily made up of those familiar with Maritime law and it's
ins and outs?

What if a maritime court in Namibia under the
auspices of some dictator decided the meaning
of the Colregs.

It's not a perfect world, but allowing that some dip**** court could
make a politically motivated judgment on an international case that
would hold up worldwide, regarding something such as the IMO Rules, is
highly unlikely.

Would you feel comfortable with that?

see above.

The Rules should not be changed in a Court
of Law. The Rules should only be interpreted.

yes and no. The court cannot change the rules. Their job is to interpret
how the rules apply to a particular incident, and assess blame or innocence.

It is not up to courts and lawyers to rewrite
law. That is up to legislatures.

GAWD FORBID !!!! The last body you want to become involved with Maritime
law, is some governmental legislature!!!! Those idiots base their
decisions on political expediency, not rational thought!!


otn

otnmbrd wrote:
Capt. Neal® wrote:

The way I read the Rules is both vessels are required by the
Rules to pass port to port. A reasonable judge could go by
that fact alone and conclude both vessels violated the Rules equally
and had they passed in accordance with the Rules
a collision would not have happened.


Problem is, if this is an "inland" situation, the rule states "unless
otherwise agreed"

This was inland. And anyone that monitors 13 in NY harbor knows that
"departures" are commonplace.



What bothers me more about this situation is a Court
of Law ends up deciding fault which is proper but what
is NOT proper in my mind is for a court to make a decision
that sets precedent which might be applied to other situations
and the Rules end up getting morphed into something unintended.


If that court is some State or Federal court, unfamiliar with the
MEANING of the rules, I'd agree. However, if the court is a Maritime
court, that becomes another matter.

Actually, I've read that the circuit courts that handle some appeals do
a rather credible job.




I do not think the writers and signers of the Colregs intended
the Colregs to be a toy of the lawyers.


Sorry to say, lawyers are here to stay. Many of the changes to the
rules, have come about because lawyers were able to argue the wording of
the rules (hence, no longer "right of way"). This is not all that bad as
it's helped clarify many areas. However, one must never lose sight of
the fact that the "Rules of the Road" tend to rely more on the "spirit"
of the law, than they do on the "letter of the law" ..... i.e. Rule 2
.....you are responsible for what you do, what you don't do, and what
you should or should not have done.

Frankly the rules a very terse and obviously written to give the courts
the widest latitude in interpretation. It was intended that the courts
would have an active roll in determining the law.

"Jeff Morris" wrote in message ...
Frankly the rules a very terse and obviously written to give the courts
the widest latitude in interpretation. It was intended that the courts
would have an active roll in determining the law.

And, as a liberal I suppose you think that's a good thing?

You idiot, you.

Read the Constitution. Courts don't 'determine law' under the
constitution. When there is a dispute, courts are supposed to
apply the law as it exists - not change it.

If the language of the law is too vague it is the court's
responsibility to strike down the law - not to write a
new one.

Law means nothing if it can be changed at will by courts.

In the USA it is ONLY legislatures (citizens) who are allowed
to write law - not judges.

CN

Capt. Neal® wrote:
"Jeff Morris" wrote in message ...

Frankly the rules a very terse and obviously written to give the courts
the widest latitude in interpretation. It was intended that the courts
would have an active roll in determining the law.


And, as a liberal I suppose you think that's a good thing?

I view this more as a "state's rights" type of issue. There are
numerous points that have to be interpreted considering the situations,
the vessels, the technology available, the local traditions, etc.

When the Democrats had power for 50 years, the Republicans claimed
everything was a matter of state's rights. Now that the tables are
turned, the Republicans want Federal Law and Amendments to prevent
states from exercising their rights!




You idiot, you.

Read the Constitution.

Which Consitution is that, Neal? The "Constitution of the Sea"? The
"World Constitution"?

Courts don't 'determine law' under the
constitution. When there is a dispute, courts are supposed to
apply the law as it exists - not change it.

International Maritime Law is not the lubberly law you want it to be.



If the language of the law is too vague it is the court's
responsibility to strike down the law - not to write a
new one.

Perhaps lubber's law works that way, not Maritime Law. When I have more
time, I'll torture you with some quotes from the text books.


Law means nothing if it can be changed at will by courts.

In the USA it is ONLY legislatures (citizens) who are allowed
to write law - not judges.

What about the IRS?

Frankly the rules a very terse and obviously written to give the courts
the widest latitude in interpretation. It was intended that the courts
would have an active roll in determining the law.

wtf are you talking about? the lawmakers just scribble on a slate tablet, so
the courts can then make the laws to their own whim?