FURTHER DISSECTION

Thank you for your excellent article and analysis.

Under the Pennsylvania Rule, 86 U.S. 125 (1874), Nap Tyme’s clear violation of Rule 5 could mean that Nap Tyme was the cause of the collision. This is a rebuttable presumption—not impossible to rebut, but perhaps very difficult.

Also, it is entirely possible that the ferry was a vessel restricted in her ability to maneuver because of the nature of her work. The examples in Rule 3(g) are just that—examples. Consequently, under Rule 18(a), perhaps Nap Tyme was obligated to “keep out of the way of ” the ferry.

Finally, Rule 15 contains some curious language: “… if the circumstances of the case admit ….” I could find no discussion of this language in Farwell’s Rules of the Nautical Road (8th ed., 2005).

I guess it’s back to school for me. I plan to use the Nap Tyme incident in our public education boating safety classes.

Richard G. Heller, J.D., Ph.D. Public Education Instructor U.S. Coast Guard Auxiliary Flotilla 2, Division 7, District 11sr

Dear Richard, Thanks for your thoughtful response. As you brought in some more technical aspects of the Navigational Rules and Colregs, we turned your question over to Robert Reeder, our new “Seamanship” contributor as well as a long-time instructor of merchant mariners, with a focus on navigational rules. Here are his thoughts:

“The Pennsylvania Rule states that when a vessel involved in a collision is in violation of a statutory rule intended to prevent collision, it is to be presumed that the violated statute is the cause of the collision.

In this case, both vessels were in violation of multiple parts of the 72 Colregs, and therefore both vessels should be deemed at fault.

Chetzemoka was in no way restricted in her ability to maneuver as defined and intended by the Rules. No Washington State ferry displays the lights or day shapes for anything other than a power driven vessel. If, however, Chetzemoka were to claim that she were so burdened, for whatever reason, then the next question becomes why she was not displaying the proper day shape for a vessel restricted in her ability to maneuver (ball diamond ball). Given that she was not displaying the proper day shape for a vessel restricted in her ability to maneuver, Nap Tyme had no reason to presume Chetzemoka to be so burdened.

We could turn that around, and (very weakly!) argue that Nap Tyme, due to its lack of lookout and helmsman, was a vessel “not under command” and hence the stand-on vessel if Chetzemoka were not “restricted in her ability to maneuver” (Not Under Command and Restricted in Ability to Maneuver occupy the same valence in the hierarchy between vessels, per Rule 18). However, again, Nap Tyme was not displaying the proper dayshapes for a vessel not under command, so Chetzemoka had no reason to regard it as such. So regardless of any possible or imagined burden, by force of displaying no dayshapes to the contrary, Chetzemoka and Nap Tyme must be presumed to be ordinary power driven vessels as defined by the Rules.

I believe that Rule 15 in this case is actually pretty unambiguous. My understanding of the “circumstances of the case” clause is that it modifies the rule in situations like narrow channels and fairways, multiple vessels interacting, and other “special circumstances,” none of which apply in this situation. Nap Tyme was unambiguously the stand-on vessel in this case. –Robert Reeder

Finally, when I am heading out on my boat, I give everyone else the right of way. This is why I never have problems on the water. Being careful is easy. Jerry Bohannon

Dear Jerry, Thanks for your letter; we always appreciate hearing from our readers. I applaud your awareness on the water (especially as we share the same waterways). I do want to point out some potential flaws with your suggested method of maneuvering on the water. For one, you still have a responsibility to keep a watch, even while adrift or anchored. While your method of stepping away from the helm is much safer than activating your autopilot, as the captain of Nap Tyme did, it should be noted that you are taking a risk and could still hold responsibility in the case of an accident. That said, you are mitigating your risk as best you can. Additionally, I wanted to offer our readers some clarification around giving everyone else “right of way” (Please see our March issue’s “Crosstalk” on why we shouldn’t really use this verbiage). Vessels are assigned status per the Navigation Rules as give-way or stand-on vessels once there is a risk of collision. We can often maneuver early to avoid this sort of situation (such as your example of adjusting course to the stern of a ferry). However, once a risk of collision is established, we cannot give up our status as the stand-on vessel, and to do so can be dangerous. If you find yourself in a collision situation, it is important to operate as the Rules dictate. This is much easier if you are the give-way vessel, as you simply giveway. If you are the stand-on vessel this is much more challenging. The Rules dictate you need to maintain course and speed until you realize that the give-way vessel is not taking action or until the lack of action by the give-way vessel makes the collision unavoidable. This is a much more difficult position since you have to determine when it is time to change course. I highlight this because you cannot “give up your right” or give up your responsibilities as the stand-on vessel once you become the stand-on vessel as dictated by the Rules. If we are unsure of whether or not these roles have been defined—or feel they have, but still want to maneuver to avoid collision—we must communicate this. We must do this clearly and early. The Inland Rules require that these maneuvers be communicated by radio and horn blast. While the International Rules do not call upon us to use the radio to communicate such maneuvers, we often rely upon this on International Rule-governed waters. As noted in our original article, this is easier said than done as you must figure out what channel the vessel you are looking to contact is monitoring, communicate your intentions, and wait for confirmation before taking action. Even if you take action early to avoid other boats or to become the give-way vessel, it is important to note that we still must be aware of the Rules and how they dictate crossing situations. Knowing and understanding the Navigational Rules helps us avoid dangerous situations by both allowing us to avoid collision situations and by allowing us to know how to act when at risk of a collision. –Brian K. Lind