Understanding Risk of Collision for the Recreational Boater

Understanding Risk of Collision for the Recreational Boaterr
By Captain Andrew F. Seligman

An essential part of being a responsible and prudent recreational boater is to know and understand the International Regulations for Preventing Collisions at Sea (72 Colregs) and the United States Inland Rules. These two sets of regulations and rules, commonly known as the “Nav Rules” or the “Rules,” apply to all waters navigable by sea-going vessels. The Rules are designed to address vessel traffic scenarios where two vessels are in one of the three approach situations and, to a lesser extent, “special circumstances.” The three approach situations are: Head-On, Crossing, and Overtaking. One of the definitions of “special circumstances” applies when more than two vessels are in a combination of the three approach situations.

The Rules consist of five Parts, five Annexes, and some other “goodies.” The five parts include: Part A—General; Part B—Steering and Sailing Rules; Part C—Lights and Shapes; Part D—Sound and Light Signals; and Part E—Exemptions. Each part and rule has both an “International” and “Inland” version.

Part A consists of Rule numbers 1 through 3. Rule 1 contains the applicability provisions for the entire Rules. Rule 2 describes the general responsibility provisions and Rule 3 covers the definitions. In this article we will discuss Rule 2 as it relates to the recreational boater. We will then discuss two critical rules contained in Part B: Rule 5 (Look-Out); and Rule 7 (Risk of Collision) as they pertain to the recreational boater. It is important to remember that Part B (Rules 5-10) is applicable to all conditions of visibility. You can download a complete copy of the Colregs at the following web address: http://www.navcen.uscg.gov/mwv/navrules/download.htm

Rule 2—Responsibility, is often commonly referred to the “The Rule of Good Seamanship.” A portion of Rule 2 states the following: “Nothing in these Rules shall exonerate any vessel, or the owner, master or the crew thereof, from the consequences of any neglect to comply with these Rules, or the neglect of any precaution which may be required by the ordinary practice of seaman, or by the special circumstances of the case.”
This basically emphasizes that all vessels, including recreational vessels, are required to comply with the Rules; and blatant disregard for the rules is on its face, evidence of poor seamanship. When a collision between two vessels occurs, including recreational vessels, courts have consistently defined “ordinary practice of seaman” and “good seamanship” to be the same. There have been many land-mark collision cases that have served to consistently define these terms. The first major case, which, to this day, serves as the basis for collisions occurring in the United States is The Pennsylvania Case. In 1876, a vessel named “Pennsylvania” collided with another vessel off the coast of New York harbor. The court’s decision started the precedent that “good seamanship” and “ordinary practice of seaman” has the same meaning. The court decided the “ordinary practice of seamen” to mean the specific skills needed to safely navigate any vessel. Furthermore, and equally important, the court decided that liability is assigned to a vessel and its operator if it can be shown, the collision/accident would never have happened if no Rule was broken—a very difficult position to prove. The following example may underscore this position1: Two vessels meet and collide, the port light of the Stand-On vessel is lit and the starboard light of the Stand-On vessel is not lit. Although the stand-on vessel was in-violation of a rule by not having her starboard light lit, the accident would have occurred any-way because the port light of the Stand-On vessel was lit and the collision occurred. The Pennsylvania ruling is the first major case in the United States that legally provides for all mariners, including recreational mariners, to be sufficiently trained and experienced for the duties upon which they are acting.

Rule 5—Look Out. Rule 5 requires just that– a look-out to be posted at all times. The purpose of the look-out is to detect, assess and manage risk—especially Risk of Collision. If you, as a recreational mariner, were to be involved in a collision, the test as to a look-out is not just based on a person being aboard assigned to be a look-out; The test is based on if a person on-board is actually performing as look-out. If the answer to that test is no, then there is a clear violation of Rule 5 and therefore Rule 2. Needless to say, single-handers, especially when operating while asleep, operate non-compliant with this rule.

Rule 7-Risk of Collision, prescribes how to determine when a Risk of Collision exists. This Rule works integrally with Rules 5 and 6 (Safe Speed.) Rule 7(a) states “Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if Risk of Collision exists. If there is any doubt risk shall be deemed to exist.”
Basic mariner training, (and therefore the courts), use standard methods to help decide when a Risk of Collision exists. Once Risk of Collision is established Rule 8—Action to Avoid Collision is triggered, vessel rights and responsibilities are established, and collision avoidance rules must be adhered to. It is logical to see that Risk of Collision and the nature of the Risk must be ascertained before appropriate action should be executed.

A very common and rather basic method to help establish Risk of Collision can be demonstrated using the Collision Avoidance Funnel. We can think of vessel meeting situations as a set of four stages. Stage 1 is the time when two vessels are far enough apart that no Risk of Collision exists. Stage 2 starts when the look-out and/or operator of the vessel first determine a Risk of Collision to be established. This is often, but not always, concluded by determining if the two vessels view each other at a Constant Bearing and Decreasing Range (CBDR.) During Stage 2 each vessel operator must determine whether or not their vessel is Stand-On, Give-Way or has Right-of-Way. There is a very significant difference between a vessel having Stand-On versus Right-of-Way privileges! A vessel has Right-of-Way ONLY when traveling down-bound with a following current on the Western Rivers, Great Lakes, and Waters designated by the Secretary. Stage 2 is also the stage, after determining if the vessel is Stand-On; Give-Way; or has Right of Way, where the operator begins to decide on (as it states in Rule 8) “the action to avoid collision shall be taken in ample time and in observance of good seamanship.” Stage 3 of the funnel is where Risk of Collision exists and has existed for a relatively significant period of time. Stage 3 is the latest time by which action to avoid collision is to be undertaken. Stage 4, the final stage, is the stage in which no mariner wants his or her vessel to encounter. Stage 4 is known as “in-extremis.” Essentially the vessel has little or no time to maneuver and in most cases collision is imminent.

The inability to recognize Risk of Collision, as defined by the Rules and therefore “good seamanship” can often have very serious consequences for recreational boaters. In October 2007, a recreational boat was unknowingly in a Risk of Collision while it approached a tug with a stern tow consisting of barges at night off the New Jersey coast near Ambrose Light house. The recreational vessel failed to observe the CBDR of the tug with tow; and did not have the ability to discern the tug was actually towing astern. The distance between the tug and the first barge was very long indeed. The operator of the recreational fishing vessel did not understand the light configurations for a vessel towing and vessel being towed. The recreational vessel piloted his vessel between the tug and the first barge. The accident caused the demise of at least one member of the recreational vessels crew. The United States Coast Guard investigated the accident. The Coast Guard first determined the recreational vessel was the give-way vessel, and lack of operator training caused the collision. Second, the Master of the tug and all it’s crew were exonerated because they complied with every requirement of the Colregs/Inland Rules; and took several extraordinary steps to avoid the collision. The latest report stated the Coast Guard is considering charging the owner and operator of the recreational boat for a crime. Additionally, the recreational vessel caused damage and delays to the tow and may be responsible for civil damages.

1 C.H. Allen, 2005. Farewell’s Rules of the Nautical Road Eighth Edition, p.33

Captain Andrew Seligman is a U.S.C.G. Licensed Master, ASA Certified Sailing Instructor and U.S.C.G. License Instructor. Captain Seligman is instructing for Tracey Sailing school www.traceyschool.com. located in New Jersey. Captain Seligman is one of the authors, with OceanWorx LLC, of “The Recreational Mariners Series.” The Recreational Mariner Series is a set of advanced courses specifically designed for the recreational boater. You may find information about the Recreational Mariner Series at www.oceanworxonline.com or contact Captain Seligman directly at aseligman@comcast.net.