Legal trend to watch

[Roger Long]

While researching Canadian operators permits, which I will need if I spend more than 45 days there next summer, I ran across this in the definitions section of their statutes:

“operate” means the action of controlling the speed and course of a pleasure craft."

If I were a judge unfamiliar with marine law and tradition, I would take this to mean that the person holding the wheel or sitting at the helm was the operator, needed to meet any applicable operator requirements, and was responsible for the vessel. This is the case with automobiles and aircraft except when the person in the other seat is an instructor and the driver or pilot is receiving instruction.

It’s pretty clear in marine tradition that the helmsman, if not the officer of the watch, is not the operator and is only taking orders as to speed and course from the person responsible. I’m not sure though that marine law makes this clear enough though to prevail against legal decisions viewed through the lens of land and aviation transport.

This has, in fact, already happened in the recent case in Texas where a guest sitting at the helm station of a becalmed sailboat was charged with OUI and being responsible (instead of the Owner/Master) for the vessel’s navigation lights not being on when they were struck by a powerboat. The guest wasn’t even actually steering since the boat was motionless but ended up going through this legal nightmare because he was sitting at the wheel. Fortunately, he was acquitted.

We pleasure boaters need to keep an eye on the land based interpretation of “operator” leaking over into the marine world. For example, if it is illegal in your state for a person under 12 to operate a vessel with a motor and you let a young guest steer while the marine patrol is going by, you could be charged. In some states, you might legally have to be at the helm for the entire time the boat is underway which is in conflict with safety from the standpoint of fatigue management and navigation requirements.

[FONT=&quot]I have in inquiry into Transport Canada asking whether their definition means that any crew member who is with me for more than 45 days also needs to have an operator permit. It will be interesting to see what they say. [/FONT]

 

[HukilauMike]

Interesting issue. I hope your inquiry is in writing and they respond in kind. A phone call, no matter who says it, just wouldn't cut it as "justification" for your reliance on that opinion.

 

[kenn]

The new Canadian card ("Pleasure Craft Operators Card") is there mainly to ensure that boat operators have sat through at least 30 minutes of a boating safety course.
Quoted from the PCOC FAQ:

Operator card or equivalent issued to a non-resident by their state or country will be considered as proof of competency.

... so you and your crew may not need to get cards.

I believe that even in commercial marine law, the helmsperson bears some responsibility for accidents, unless they were acting under the direct command of the watch officer who's also on the bridge.

To me it's reasonable that for pleasure boats the person at the helm is legally responsible for the care and control of the boat, unless of course if the captain is right there on deck as well. It's not responsible to leave an incompetent person at the helm and then go below.

Anyway...the Canadian authorities will come down hard on safety violations (eg life jackets, flares, excessive speed, etc), and open alcohol in a moving boat, but on the whole they're a pretty reasonable bunch. If your 11 year-old nephew is at the helm of your yacht and you're right there, no-one's going to write you up.

 

[sailingdog]

Roger—

IIRC, the case you're talking about is not from Texas, but from Clear Lake california.

 

[Roger Long]

To me it's reasonable that for pleasure boats the person at the helm is legally responsible for the care and control of the boat, unless of course if the captain is right there on deck as well. It's not responsible to leave an incompetent person at the helm and then go below.

I hope you aren't a Canadian judge

I also hope you hope you have your flame resistant suit on because I think you'll stir up some other responses here with that position. If, by "incompetent", you mean a person not qualified to operate the vessel for the whole voyage you're proposing to make recreational boating pretty damn difficult. Do you pee? Do you ever use a below decks navigation station to check position and course? Do you only sail when there is someone else on board that you would trust to take the boat out without you? Do you believe that this should be a legal requirement for all recreational vessel operations?

I have no problem going below, even for a night off-watch, and leaving a relatively inexperienced person at the helm. As long as I feel that I can trust them to call me if they see another vessel, the boat wanders off the GPS track I've set, or anything unusual happens, I feel that they are competent enough. Obviously, there are traffic and navigational situations where I would feel that I had to be right there with them.

I also have no problem going below for a couple minutes under windvane/autopilot. when alone and there any no other vessels or navigational dangers within a 10-15 minute radius of me. I realize that wouldn't be the case very often where you sail though.

 

[Roger Long]

the case you're talking about is not from Texas

Oh right. It was our former president who was from TX. Sorry , Freudian Slip.

 

[Joe]

Sounds like the operator's card is pretty easy to get. If you have any guests planning to stay 45 days I'm sure getting an operator's permit would be within their capabilities. Actually they could learn from you there and apply for the cardl after a few days. I'm not sure what the beef is here.

 

[Roger Long]

I'm not sure what the beef is here.

The card isn't the beef. It's the creeping acceptance of the idea that a person at the helm is like the driver of a car instead of a crew member of a boat. I was concerned at the time of the OP only about the legal realm but am disturbed to detect sympathy for this idea in this and another forum where I have raised it.

As I said on the other forum:

Absolutely not! As far as I am concerned, there is only one person aboard my boat who is "operating" it and responsible for anything and that is me. I am legally responsible for EVERYTHING that happens. If I tell the person at the helm to just keep steering straight towards that buoy and they turn 90 degrees into a collision with another vessel, they may be personally responsible to me and have failed me but I am totally responsible for their actions.

Part of my responsibility as master of my vessel is to assess the qualifications and abilities of any person I let steer the boat along with the traffic and navigational situation to insure that an accident does not occur.

If a steering cable breaks and my vessel turns into a collision I will be just as responsible as if I simply steered the boat myself into the same situation. Part of my responsibility as master of my vessel is to assess the condition of the steering cables and be satisfied that they are up to the job of steering the vessel.

I am not aware of any distinction between commercial and recreational vessels in this regard. It is the rise of such a distinction in the legal realm that concerns me and I am further disturbed to find evidence of sympathy for this point of view in this forum and another where I have raised the issue. It is not fair to crew and guests and it implies a relaxation of the ultimate responsibility of the master at a time when, let's face it, most of us wish operators (especially of plastic powerboats) would take more responsibility.

The Captain of the Exxon Valdez told a mutual friend, also a large tanker captain, something along the lines of, "Sheesh, you would think that you could leave a licensed mate to steer a straight course out of a clearly marked harbor without just turning the ship straight towards the shore." As far as I know, he never said anything like this in public or in his defense because he was just as responsible for the mate's actions as if he had been steering the ship himself. My friend said, "It could have happened to any one of use." and went on to express the opinion that, among his peers, Hazelwood was considered as good as they come. That's the way it's always been at sea and that's the way is should remain.

 

[Texas Lake Sailor]

Sorry roger, but there is a big, big difference between a professional lic'd ship driver and the average weekender on their pleasure craft. As owner are you at fault if the person at the helm does something wrong?? Yes, but they also bear responsiblity. common sense does apply. As for you cited case in Clear Lake, then both owner and helmsman should have been cited for OUI. Even a helmsman on a Navy ship can be charged in event of grounding etc, his punishment isn't as severe as the OIC.

 

[kenn]

Hi Roger,

I thinking we're disagreeing mainly on definitions, and expected situations.

Probably the biggest is my use of "incompetent". When I used it above, I don't mean relatively inexperienced, I mean, essentially, someone who doesn't know what they're doing in the given situation. The definition will change to match conditions. For example, would I let a non-sailor take the helm? if the conditions were mild and there was no traffic or navigational hazards, and I knew that the person was capable of holding a compass course for 5 minutes while I pee? yes I would. Would I let the same person helm unattended in a busy channel, or a harbour? No I wouldn't.

Regarding the requirement for PCOC, you basically need a pulse, a smattering of English, and a VISA card to pass, so it's a fairly low bar

As a boat owner, I completely agree with you that I have the ultimate responsibility for the seaworthiness of my boat and the safety of everyone on board. It is part of my duty to delegate only to those who are capable of the task.

Looking back on the regulations- operator means... operator. The person actually controlling the boat. Much as I respect maritime tradition, the modern recreational boating scene unfortunately has more in common with the car, especially in busy conditions. As owner/master, it's my job to ensure that people I delegate to are up to the job. If there's a chance that the boat may get stopped while I'm not on deck, that person should meet legal requirements as well.

We also have to keep in mind that they're trying to make one set of requirements fit all boats with motors, from a Wayfarer with a 2 HP kicker, to a C&C 33, to a bassboat, to an offshore racer. What is safe practice when motoring a cruiser is inappropriate with a cigarette boat. And so on.

So maybe the only point of disagreement we may have is that i still think that in the majority of recreational boating scenarios, the unsupervised helmsperson is at least partially responsible for the safe operation of the boat, whatever that entails.

 

[Roger Long]

Even a helmsman on a Navy ship can be charged in event of grounding etc, his punishment isn't as severe as the OIC.

Yes, if his inattention or failure to follow orders was a factor. However, he is being charged the same way he would if he painted a bulkhead white that was supposed to be gray, for failing to follow the orders. The Captain who was responsible for assessing his fitness, training, etc. and that of the other officers who may have the deck at the time is responsible for the grounding.

 

[Ron20324]

I don't know if any (obviously commercial/naval) ships are made any more wherein the guy who actually turns the rudder even has any idea where the boat is going? Like in a sub, the nav man says "turn to 350 degrees", and the man with the wheel does that. Or if someone with a clear view from the bridge tells the wheel-turner, who may be somewhere remote, to turn the ship. Who, indeed is "operating" the ship?

 

[Joe]

I think the spirit of the proposed regulation is to help prevent boating accidents. I don't doubt your willingness to accept responsibility for the inexperienced crew steering your vessel while you take a nap. It's just that the likelihood of an accident is much greater in that situation... whether you accept the responsibility or not.

I just can't see how inconvenient this is if you do a little planning. Remember the key condition is "45 days" and according to the Canadien poster it's not too difficult to obtain an operators permit. I would imagine if one card holding operator were on watch at all times it wouldn't make much difference who was steering the boat.

I was in the Navy... and guess what... none of the officers or NCO's ever steered. However. there was always one standing watch.

 

[Roger Long]

I just can't see how inconvenient this is if you do a little planning.

I haven't meant to imply that the inconvenience is an issue for me. Little about sailing and cruising responsibly is "convenient". I take issue with the blurring of an understanding about the responsibility of the master which has been a foundation principle of maritime tradition.

This has been an interesting discussion for me. The key point I've come away with is that most recreational boaters are buzzing around in outboard boats. The rules and regulations will therefore be written for them and we and our guests will have to live with being treated like them. I didn't realize that the idea of the person with their hands on the wheel being the "driver" had advanced so far.

Regulations often lead to absurdities. Accept for the moment that the interpretation that the Canadian rule that only a person with an operators card may touch the wheel is correct (I'm still trying to get a definitive answer on that). This rule for non-residents only takes effect after 45 consecutive days of operation in Canada. I go sailing with a card and a crew member who doesn't have one. Either of us can legally steer for the first 45 days. On day 46, we are joined by a friend with no sailing experience whatsoever. That person may legally steer the boat but the person who has been sailing through Canadian waters for the previous 45 days may not.

.... the inexperienced crew steering your vessel while you take a nap. .....the likelihood of an accident is much greater in that situation

It shouldn't be significantly greater if I am properly assessing their abilities and the navigational situation. If I'm not confident that I can trust them to keep up a scan and call me if another vessel gets within a few miles or they see something floating in the water, I won't be taking any naps. Accident probability is a bit greater but those probabilities are always changing with conditions. It's only when they rise above a certain threshold that it become negligent. It's that threshold that is difficult to establish. Regulations attempt to establish it with things like PCOC cards. A person with a card is "experienced" and a person without one is "inexperienced". So, on day 46, the person who has just gotten on a sailboat for the first time could be considered more "experienced" than the one who had just spent 45 days sailing.

 

[kenn]

Hi Roger,

It's good to be cautious, but I think you might be reading too much into it.

First, because there's no "learner's" card in the program, it follows that there should be no issue with an uncarded person helming under the supervision of a carded or otherwise certified person. Boating schools all over Canada let uncarded students take the helm. That whole "who's touching the wheel on day 46" situation shouldn't arise.

And, despite the letter of the law, the reality is that they're not that much concerned with experienced cruisers, so the most contact you'll probably have is a wave from a passing OPP boat. They're mainly concerned with safety, so in the case of cruisers they'll be watching for adequate safety equipment, especially lifejackets, and for open alcohol. It's my belief that as long as there is one carded or otherwise certified person on board, the requirement is met. The officers have discretion, too, and unless they're in a foul mood or you just did something stupid, I don't imagine them getting excited about day 46.

The last step in rolling out the PCOC was this fall, so it's still a relatively new program, which means that there will still be a period of adjustment, and probably some leniency. As I mentioned, the program is an attempt to ensure that all boat operators have had a minimum exposure to some training. Sailing schools in Canada seem to be accomodating newcomers by including the card test into the beginner courses, so that the new student gets a PCOC card upon course completion.

I hope I've put your mind a little more at ease. If you don't already have something that would constitute an equivalent, then some dark January afternoon when you're bored, do some reading and take the PCOC test online, and you're done.

Georgian Bay is awesome. We've only done a bit, and we hope to do at least part of the north channel sometime soon.

Cheers!

ken

 

[Roger Long]

take the PCOC test online, and you're done.

I'm looking into that but, according to what I've found online, I have to arrange for a proctor who will certify the following about the testing location:

"I herby confirm and agree that the test site is a site that is owned, leased, occupied or otherwise controlled by BOATsmart! Canada and myself."

It also apparently has to be inspectable by DoT personell. It will probably be pretty hard to find a place like that south of the border

Later: Here is what BOATsmart! Canada said in response to an email inquiry:

Your Supervisor can be anyone over the age of 18 who is not related to you. When they agree to act as a Supervisor, that person becomes a representative of BOATsmart! Canada and the space in which you complete the exam becomes a “test site is a site that is owned, leased, occupied or otherwise controlled by BOATsmart! Canada.” This essentially means that the Supervisor is in control of the location and thus it cannot be in your home, where you are considered to have control of the environment.

In summary, the supervisor can be anyone over the age of 18 who is not related to you and you can take the test at any location that is not your place of residence.

So, it doesn't seem like a big deal. It costs about 50 buck to take the exam and nothing for the proctor to sign up.