By John K. Fulweiler
In a life too far past, I drove vessels under the acoustic licks of Def Leppard’s hymnal. I’d drive over-horsed hulls along night lit coastlines where a hypnotic mix of swell and sound messed with your situational clarity. In faraway lands of sand, I tamped down the pulse of long travel and bounce of promised ventures to cajole and convince safe passage from there to here. In those times, the acrid burn of Marlboro Reds kept me upright and on course. Save the Public Safety Announcement: I don’t dabble in nicotine anymore, but I would if I was sailing around the world.
You know where this boat is headed and it’s a foray into vessel collisions. And you Sailing Anarchists, I’m not for or against anyone. The Vestas 11th Hour Racing reported collision with a fishing vessel is a horrific situation and my sympathies spread wide. I grieve for the family of the deceased fisherman. I grieve for the Vestas crew, who’ll drag this tortured night across many an ocean. But as sorry as I am it happened, I’m mad that it happened.
Okay, you’re right, I don’t know all the facts and circumstances, but I’m writing to spot issues which may or may not be relevant. I can guess what tack Vestas was on and I can guess what the winds were like around Waglan Island, but I won’t. We’ll just talk about some of the legal issues that might be in play.
The way I think about vessel collisions is that the law around here makes it hard for any one vessel to claim they were in the “right.” There’s no winner in a vessel collision because the rules place the onus on both boats to keep clear to avoid a collision. That is, a ‘stand on’ vessel only has the benefit of the rules requiring the other vessel to alter course or speed, but all bets are off if that doesn’t happen. We’ve all seen the cardigan wearing comb-over canting his Catalina to port smack in the path of some Sea Ray express. He’s assuring his son-in-law he’s got rights because he’s on starboard tack, but he doesn’t know jack. A lot of the weekend crowd don’t appreciate that the rules require each vessel to avoid a collision. When an admiralty court gets hold of a collision case, you’ll often see the fault shared in some sort of apportionment between both vessels.
What little I know about the Vestas tragedy makes me think that under our legal regime, the issues of speed and lookout would also be hot topics around the defense counsel’s table. Every vessel is mandated to maintain a “safe speed” as determined by things like visibility and traffic density. In our waters, you might find some lawyer pointing out that the U.S. Navigation Rules make specific reference to “concentrations of fishing vessels” when considering what’s a safe speed.
The U.S. Navigation Rules are carefully drafted to prevent collisions, with seemingly little concern for running aground! When you thumb through the text, don’t be deceived by the brevity because there’s a lot of meat on the bone. For instance, when it comes to maintaining a lookout, Rule 5’s scant forty-five words places a tremendous burden on vessels. There’s the need to maintain a ‘proper lookout’ by ‘sight and hearing’ and with all other ‘available means’ so as to make a ‘full appraisal’ of the situation and of the risk of collision.
I can’t yet tell what rules would apply to the location of the Vestas collision. Based on my experience, a lot of legal regimes share commonality in their approach to regulating vessel movements to prevent collisions. If that’s the case, whether the fishing vessel was making way and, if so, whether it was at a safe speed, whether it was maintaining a lookout, whether it was displaying lights, and what action, if any, it took to avoid the collision will likely be important considerations.
It’s a sad fact, but I’m sure the Vestas crew could beat me around the course with paper bags on their heads all the livelong year. What’s worrisome, though, is whether the “boat speed” mantra I drill into my Opti-sailing daughter will overshadow her understanding of the Rules of the Road. I won’t let it, but you can see how a racecourse mentality might not suit her well on a dark night coming back from Block Island on our sailboat.
That darn fishing vessel could be in the wrong six different ways, but that still leaves me questioning whether the professional sailors that skitter across the globe possess the navigational skills necessary for sailing off the Club’s course? Holler at me. I’d enjoy hearing your thoughts and remember, there’s a distinction between seamanship and navigational skills.
With concern for all.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293), or visit his website at saltwaterlaw.com.