This is not exclusive to Colregs or admiralty law, it is a fundamental principle of common law, that both parties must take whatever action is possible to mitigate damages or injury.
Collision today
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I agree, it is a fundamental principle. That is precisely why I argue that it does not need to be a regulation in Colregs. Within Colregs, this principle, explicitly stated as regulation, invites the notion that other navigation rules can be ignored.
We even have seen it among sailors in this forum. Racers have argued that they should be allowed to barge through on port tack among casual sailors on stbd tack based on the principle of "courtesy" and because of the expectation that a casual sailor must avoid collision in any case. As you can see, sailors and motor boat operators can use just about any wedge they want to avoid the principal navigation rules at their convenience, simply because there is that little sidebar (in this case, it's an actual regulation) that says somebody else has to get out of the way.
I don't think I'm "ad extremis" at all (whatever that means). I just think that there is an unnecessary navigation rule that muddies up the waters of responsibility in the event that 'real' navigation rules are ignored. I think that in this case, the sailor was simply unable to get out of the way … case closed. No need to speculate that they didn't try hard enough. It's a fundamental principle.
I really don't get why you feel that way, @Scott T-Bird . Much of law is based on reasonableness.
Your statement that "this principle...invites the notion that other navigation rules can be ignored" is in direct contradiction to what is stated in Rule 2 (a):
What would you prefer they say? What's the text that irks you?
Your statement that "this principle...invites the notion that other navigation rules can be ignored" is in direct contradiction to what is stated in Rule 2 (a):
"Nothing in these Rules shall exonerate any vessel, or the owner, master, or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."
What would you prefer they say? What's the text that irks you?
@Scott T-Bird You have a valid point. (and a sad change state has occurred to guide our daily experiences) There should be Common Sense used in what ever actions are taken. That the idea and the application of Common Sense appears to be applied less and less in a self centered society raises the need to reinforce the concept in a bureaucratic method.(Not that it always works or is fair.)
It has been stated that the parties involved state the facts as they experienced and remember them (a reason your attorney tells you to not say anything to anyone) and the judge/jury interpret the facts and apply blame.
That there is a regulation that can be interpreted to require you to demonstrate common sense does not relieve you of the other responsibilities you have, it reinforces it, in my mind.
In the days gone by you could shake a hand and each person believed that their word was their bond. We were more likely to be dealing with our friends and neighbors.
Now with travel and mobility being so easy the locals tend to be unsure of the visitor (carpetbaggers), so establish contracts/regulations to assure that visitor and local agree on the same conditions.
It has been stated that the parties involved state the facts as they experienced and remember them (a reason your attorney tells you to not say anything to anyone) and the judge/jury interpret the facts and apply blame.
That there is a regulation that can be interpreted to require you to demonstrate common sense does not relieve you of the other responsibilities you have, it reinforces it, in my mind.
In the days gone by you could shake a hand and each person believed that their word was their bond. We were more likely to be dealing with our friends and neighbors.
Now with travel and mobility being so easy the locals tend to be unsure of the visitor (carpetbaggers), so establish contracts/regulations to assure that visitor and local agree on the same conditions.
jviss is correct.
Scott, you may be interested in reading this (Dockhead sails his 54 foot yacht to the Baltic every summer from Cowes. He has written extensively on navigation and Colregs issues.)
http://www.cruisersforum.com/forums/f57/thread-for-basic-colregs-questions-189778.html
For those of your who don't click on links, here is the start of that looong thread:
It works completely differently at sea. Let me count the ways:
1. Unlike right of way, the requirements to stand-on and give-way under the COLREGS is not a permanent status which applies during all phases of a crossing. These obligations arise only after (a) vessels are in sight of one another; and (b) a risk of collision exists. And this order of maneuvering ends when either the stand-on vessel has a reasonable doubt as to the efficacy of the give-way vessel's maneuver, or action by the stand-on vessel is required.
2. Unlike the vehicle privileged with right of way, the vessel designated as the stand-on vessel remains at all times equally responsible for avoiding the collision. Standing-on does not mean proceeding heedlessly -- it means taking the passive role -- "holding still" -- so that the give-way vessel, which has the active role, can work out and execute a maneuver. The stand-on role is actually less privileged than the give-way role -- the give-way vessel has an actual right -- that is, to initially determine how the vessels will cross.
3. Unlike the vehicle privileged with right of way, the stand-on vessel has no right to maneuver as it likes. Because, as has been said, standing on is not a right. Standing-on is in fact an obligation – you are legally obligated to hold your course and speed for a certain phase of a crossing with another vessel, and this obligation is not a joke, and not something you have a right to ignore. That’s because the give-way vessel – which is actually more “privileged” than the stand-on vessel, because the give-way vessel has the right initially to determine how the two vessels will cross – needs to be able to count on your course and speed in order to work out the crossing. That’s why commercial skippers say over and over again to us – “Stand-on, for God’s sake, when you are required, and don’t jink around out there like a WAFI. Follow the Rules!”.
The terms "privileged" and "burdened" were banished from the Rules with the 1972 revisions, for the specific purpose of being very clear about all of the above, and to try to stamp out all of the misconceptions which come from this "right of way", "privilege", and "burden" thinking. There are notes to the 1972 IMO Convention available online if you want to read more.
Scott, you may be interested in reading this (Dockhead sails his 54 foot yacht to the Baltic every summer from Cowes. He has written extensively on navigation and Colregs issues.)
http://www.cruisersforum.com/forums/f57/thread-for-basic-colregs-questions-189778.html
For those of your who don't click on links, here is the start of that looong thread:
It works completely differently at sea. Let me count the ways:
1. Unlike right of way, the requirements to stand-on and give-way under the COLREGS is not a permanent status which applies during all phases of a crossing. These obligations arise only after (a) vessels are in sight of one another; and (b) a risk of collision exists. And this order of maneuvering ends when either the stand-on vessel has a reasonable doubt as to the efficacy of the give-way vessel's maneuver, or action by the stand-on vessel is required.
2. Unlike the vehicle privileged with right of way, the vessel designated as the stand-on vessel remains at all times equally responsible for avoiding the collision. Standing-on does not mean proceeding heedlessly -- it means taking the passive role -- "holding still" -- so that the give-way vessel, which has the active role, can work out and execute a maneuver. The stand-on role is actually less privileged than the give-way role -- the give-way vessel has an actual right -- that is, to initially determine how the vessels will cross.
3. Unlike the vehicle privileged with right of way, the stand-on vessel has no right to maneuver as it likes. Because, as has been said, standing on is not a right. Standing-on is in fact an obligation – you are legally obligated to hold your course and speed for a certain phase of a crossing with another vessel, and this obligation is not a joke, and not something you have a right to ignore. That’s because the give-way vessel – which is actually more “privileged” than the stand-on vessel, because the give-way vessel has the right initially to determine how the two vessels will cross – needs to be able to count on your course and speed in order to work out the crossing. That’s why commercial skippers say over and over again to us – “Stand-on, for God’s sake, when you are required, and don’t jink around out there like a WAFI. Follow the Rules!”.
The terms "privileged" and "burdened" were banished from the Rules with the 1972 revisions, for the specific purpose of being very clear about all of the above, and to try to stamp out all of the misconceptions which come from this "right of way", "privilege", and "burden" thinking. There are notes to the 1972 IMO Convention available online if you want to read more.
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Rule 34 (d) may also be of interest in this discussion:
It would be interesting to know if the sailboat had a horn on board, and if they used it.
Not doing so could contribute to their apportionment of the responsibility.
The judge or magistrate, in our imaginary admiralty court, could ask the sailor "you saw this coming, you were aware that they could hit you. What did you do to avoid it? Did you try to hail them? Maneuver? Sound your horn?
(d) When vessels in sight of one another are approaching each other and from any cause either vessel fails to understand the intentions or actions of the other, or is in doubt whether sufficient action is being taken by the other to avoid collision, the vessel in doubt shall immediately indicate such doubt by giving at least five short and rapid blasts on the whistle. Such signal may be supplemented by at least five short and rapid flashes.
It would be interesting to know if the sailboat had a horn on board, and if they used it.
Not doing so could contribute to their apportionment of the responsibility.
The judge or magistrate, in our imaginary admiralty court, could ask the sailor "you saw this coming, you were aware that they could hit you. What did you do to avoid it? Did you try to hail them? Maneuver? Sound your horn?
That's generally the approach that I take, and I find it hard to reconcile with statements like "I turn whenever I'm on a collision course within 1-2 miles of a powerboat". Obviously common sense must apply, and if I'm in the path of an oncoming barge I'm getting out of his way. But where I sail if I turned every time there was a collision course, or started my engine, or tried hailing by VHF, I'd never actually be sailing. I wait until it's clear the other guy isn't taking evasive action and the only way to avoid collision is if I turn NOW. Having seen this incident I might put less faith in the other guy, and turn somewhat sooner, but avoiding too early isn't great either.
Fair question. The text that irks me is Steering & Sailing Rules, Rule 8, Action to Avoid Collision (f) (iii)
"A vessel, the passage of which is not to be impeded remains fully obliged to comply with the rules of this part when the two vessels are approaching one another so as to involve risk of collision" (underlined for my emphasis).
As you said, it is a fundamental principle of common law, that both parties must take whatever action is possible to mitigate damages or injury. Therefore the provision (f) (iii) is unnecessary in Colregs. Instead, it opens the victim to the burden that somehow he just didn't do enough to avoid collision. It could be that the sailboat did everything right to avoid the collision but he still got hit. Why there needs to be a judgement based on the provision stated in (f) (iii) is what irks me. There is no reason for the sailboat to be burdened by this provision. If he got hit by a powerboat that ignored all other rules regarding stand-on/give way vessels, maintaining watch, etc., there should be no question with respect that the sailboat should NOT share blame because of (f)(iii), in my opinion.
I think it is this provision that opens the door for ignoring all other statutes in Colregs. Why will anybody respect the other important statutes if (f)(iii) basically says that you might be partially to blame, even if you are stand-on, if there is a judgement that you didn't do enough to get out of the way and avoid being hit.
In my opinion (f)(iii) should be eliminated because it is unnecessary and opens the door for damaging the victim with an erroneous judgement.
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Because that IS part of the bedrock principle in common law! "Stand on" is not a right, it is more of a responsibility; and regardless of whether you are the stand on or give way vessel, you are obligated to do everything in your power to avoid a collision.
Let's say you're crossing the street, in the crosswalk, with the light, pushing a stroller with a kid in it. You see a car approaching that isn't slowing - you see the driver is texting. Is it O.K. for you to continue at your walking pace when to do so would mean the stroller would be hit by the car? Or are you obligated, regardless of your "right of way," to hurry up and get out of the way?
I think I understand your view, @Scott T-Bird , and it is inconsistent with the common law principles and traditions.
Yes, my argument has nothing to do with the terminology. We've been thru it enough to understand the distinctions.
Basically, I think arguing over the terminology definitions is a bit pedantic. It never mattered that they changed the terminology, nothing has changed with respect to the definitions. If anything, I think it might have been a mistake. Now, instead of boaters thinking there is an obligation to follow certain rules, the terms are much more wishy-washy sounding. Sort of like "progressive" thought processes. ("We follow the rules only when they serve our own interest, but not when we think rules are not 'morally' the right thing to do").
Unfortunately, Scott, I think you are missing the entire point of Colregs. And, separately, it has nothing to do with the terms.
If you think I'm inconsistent, then you don't understand my point of view. In your example, of course the pedestrian is going to attempt to get out of the way. That's not even a question. But if (f) (iii) were applied, the door is open for the judge to say, you were a track star in high school and you failed to get your child out of the way. You are partially at fault for your child's death. Therefore, reduced judgement in your favor. That's wrong. (f) (iii) is not necessary and should be eliminated.
But that statement is itself contradictory. If "stand-on" is an obligation, then isn't the obligation, as we all have defined it, to maintain a steady, predictable course? Of course that doesn't work. That seems to be what you are complaining the sail boat did. So it contradicts your argument that the sailboat should have done something to avoid the fishing boat, no matter how erratic. Should he have turned on his motor, thus, making him a motorboat and providing the reasoning that he was no longer "stand-on"? Of course that thinking would be irrational, too.
I think what you fail to understand is my complaint about just one provision, namely (f)(iii) because I think it leads to problems. I'm not complaining about Colregs in general. All the other rules and provisions are just fine. I think that (f)(iii) can lead to contradictory rulings and I think it can simply be eliminated, not re-written. As you said, it is a fundamental principle … I'm in full agreement with that. In redundancy, (f) (iii) leads to unnecessary confusion and wrong-headed judgement, in my opinion.
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I think that is because you fundamentally think the sailboat may be partially to blame because he failed to avoid getting hit. You are applying Rule 8 (f) (iii) to make that judgement.
My opinion is that it is so obvious that the sailboat got run over by a motorboat that there isn't even a question that the motorboat is 100% at fault. I think (f) (iii) is inappropriately used as an excuse to cast some doubt on the motorboat's fault.
@Scott T-Bird I never said "no matter how erratic," an exaggeration on your part, and while I suggested the sailor could have started his motor it was to avoid the collision, not to change his status. At that point, had he sounded a horn to no affect, it would have been clear that collision avoidance trumped stand-on status. My thinking is not irrational, at all.
All that 8(f)(iii) states is that if you are a stand on vessel you are still obliged to follow rules 4 through 19 if a there's an impending collision. So, you can be at least partially responsible if you fail to mitigate the situation when you could have.
If you just don't like the law, contact your congressman, I guess. But I think you are saying you are O.K. with the principle but you just don't want it written down? Are are you opposed to the principle?
All that 8(f)(iii) states is that if you are a stand on vessel you are still obliged to follow rules 4 through 19 if a there's an impending collision. So, you can be at least partially responsible if you fail to mitigate the situation when you could have.
If you just don't like the law, contact your congressman, I guess. But I think you are saying you are O.K. with the principle but you just don't want it written down? Are are you opposed to the principle?
Hopefully it helps to break our positions down into simple statements. If I have misstated your position, then we should start there perhaps?
If I have misstated your position, then we should start there perhaps? 
Of course it does as it should. In a collision, there is likely some blame on both parties. I see your point Scott but there are many out there that don't have "common sense" and would sit and watch a collision happen because they think they are stand-on.
If the sailboat took no evasive action then "common sense" says he should bear some responsibility. I guess it depends on your definition of common sense, hence the written rule.
Why? Because "common sense" say's if you fail to mitigate damages, you are to blame to some extent. Not to mention you may be injured or killed.
Based on the little information that's available, I believe that the sailboat may bear some responsibility. Here's why:
Given that the sailboat saw this coming, in sufficient time to have attempted to hail the powerboat:
Given that the sailboat saw this coming, in sufficient time to have attempted to hail the powerboat:
- I didn't read anywhere that they had sounded a horn - they should have: Rule 34(d).
- it appears they did not attempt to maneuver to avoid the collision - they should have: Rules 8(c), 8(e).