Here's one which has bothered me for years. (Similar, but different to another recent thread on RRS14 and Case 87.)
*On the Water:*
Two boats (W and L) are sailing downwind, on quite different but converging courses. Both helms are very competent sailors.
W, watching the situation carefully, intentionally waits as long as possible. Just before she thinks that RoW may need to act to avoid contact, W acts by luffing hard. She luffs enough so that her action alone would have been enough to prevent a collision. Throughout the incident, due to their widely differing courses, L is able to change course in both directions without immediately making contact.
The leeward boat (L) is watching the situation carefully. At exactly the same time as W's action, she assesses that there may be a collision, L bears away hard. She bears away enough so that her action alone would have been enough to prevent a collision. There is no contact.
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*In the Hearing:*
L protested W, claiming that she bore away to avoid contact and if she did not bear away then they may have collided. Thus, she claimed W must have broken RRS 11.
W claimed that she was watching the situation carefully, and luffed at exactly the right time and L did not 'need' to take the avoiding action she took. Thus, she kept clear and no rule broken.
The PC accepts that W's actions alone would have prevented a collision.
L argued that she shouldn't have to take risks to comply with RRS 14. She argues that if she waited until it was clear that W was not keeping clear (RRS 14 - last paragraph), then it would have been too late to avoid a nasty collision. She argues then, that common sense and good seamanship needs her to act before it is clear that W will take action to avoid the contact!
The PC accepted that L's action was made at the last reasonable opportunity and appropriately to avoid collision had W not acted.
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*Discussion*
1. Is L's judgement important here, or is it only the geometrical reality which counts?
2. Is L allowed any 'reasonable apprehension'?
3. What if L had acted a few moments earlier?
4. What should the final decision be? How would it be explained to the parties?
By citing Case 50, can I conclude that you would penalise W for RRS11?
Case 50 quite specifically describes a port/starboard crossing situation. Can the principals of Case 50 be applied to every Part 2 (right of way / keep clear) scenario? Nothing says they can't, but the wording of Case 50 just seems so deliberately focused on RRS 10.
In addition to Case 50, please consider Cases 26 and 123 where the right of way boat is penalized for failing to avoid contact.
Case 88 is even more relevant in its description of a boat that avoids contact yet fails to keep clear.
The conditions in which your scenario takes place might also play an important role in the skipper's decision regarding timing.
For me, the deciding factor in your scenario came from the testimonies: "W acts by luffing hard", "L bears away hard". These are not the actions of someone with plenty of time to spare.
For these reasons, yes, I would penalize W for RRS 11.
Thank you,
Colleen
, and the physical and handling characteristics of the boats. How close did they get as a result of both their actions?
A boat may claim that they have a reasonable apprehension of collision in a hearing, but I think it's up to the PC to check that reasonableness. In a P/S beat to windward scenario ... it might be more straightforward to determine how/where the boats would have made contact had the starboard boat not made a course change. A bow-to-bow intersect supports an earlier move to avoid than 1-foot from the stern of Port.
You are heading in the direction I was looking for.
Let's say that the boats had plenty of room for W to do what was needed to keep clear.
The aim of my scenario was to create a situation where KC actually did comply, but simply, RoW judged it differently, resulting in them both taking action at the same time.
In Ben’s scenario, “The PC accepted that L's action was made at the last reasonable opportunity and appropriately to avoid collision had W not acted.” Their finding, taken with the previously mentioned cases, supports the result to DSQ W, IMO.
I have for a long time wondered if there is an unavoidable conflict in the rules.
The allowance in the last sentence of RRS 14 and the reality of seamanlike safety.
We have a few concepts and words which need sorting out. 'Needs'. 'Clear'. 'Reasonable'. 'Apprehension'.
I also find that there are a couple of general PC habits. 1. To jump to the conclusion that Keep Clear is wrong and Right-of-way is right. 2. To use Case 50 as a crutch when the balance of probability is 50-50.
So, this thread is an attempt to investigate those. I admit though, setting up the question is quite hard.
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My scenario involves two boats with a difference of opinion. L believes that there may be a collision and acts. W is all over the situation, watching carefully to the extent that it was never going to be close. (I deliberately didn't include distances or boat lengths. Simply, that W was deliberate and cautious on the timing her turn.) Yet, cautious-L still took action.
Case 26 and Case 123 - I don't think these are directly relevant here. These cases are based on it being or becoming 'clear' that KC was not keeping clear and whether RoW must act. In Case 23, P was not keeping a good lookout and did not respond to hails. Case 123 is about whether P should have acted or not.
In my scenario, it never became 'clear' that W was not keeping clear. The helm was experienced and watching closely.
Case 88 is probably the strongest case cited. On the surface it looks close to my scenario. It makes clear that there is a difference between avoiding contact and 'keeping clear'. This is true and important.
Then there is a list of factors which along with the definition of Keep Clear led to the appeal decision that KC broke the rule.
1) Collison course
2) Minimal Distance between the boats - Not much distance
3) Minimum time - Not much time
4) Required course change needed - Large course change
5) Manoeuvre times
But 2, 3 and 4 each are based on close quarters of boats in Case 88. My scenario hasn't said anything about distances (or times or close quarters). Again, I left this open. I want the scenario to be based on mixed judgements alone. Ang has agreed that distances need to be part of the investigation. I fully agree. This is what I was hoping someone would point out.
If W was wating until the distance was 3 boat lengths (say 15 seconds) from L and if L thought there was going to be a collision if she didn't react before W was less than 3 boat lengths, then Case 88's relevance is diminished. Those distances and times cannot normally be said to lead to the decision of rule breach like in Case 88.
Case 50
That leaves us with Case 50. Both Ang and Colleen suggest that in this Rule 11 situation, the principal of Case 50 (Reasonable Apprehension) is applicable.
My first long-time consideration is whether Case 50 can be transferred to 'all' right-of-way/keep clear situations. The case doesn't indicate this or specify it can't be used for R11, 12, 13 etc... But it is a RRS 10 situation (just like Case 26, 87, 88 and 123 incidentally). Something in the wording tells me 'reasonable apprehension' isn't intended to be a big factor throughout Part 2.
I have seen (and found myself) using Case 50 to decide tough R10 cases. I teach that it is a useful tool for aspiring judges to commit to memory and pull out of the book, when needed. But I tend not to let it wonder into other rule decisions. I'm not sure the intent of the rule writers is for that.
My feeling is that if Case 50 was let loose on all Part 2, we effectively put 'keep clear' safety rules into the realm of 'subjective' and into the minds of RoW at all times. My feeling is that simply because RoW thought KC broke a rule, it doesn't mean that KC did break a rule.
I do think however, that to practically apply RRS14, a minimal consideration of 'RoWs judgement' is acceptable/required. But perhaps not prescribed as a weapon for RoW, as in Case 50.
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The last part of R14 is quite clear. However, as Case 87 shows, sometimes this 'clarity' never comes soon enough. Case 87 S may have won the appeal, but perhaps lost her boat!!
It has been argued that good seamanship would expect RoW to act anyway before, instead of waiting for a collision regardless of that last sentence. I tend to agree. I have done it. But does that entitled me to a protest win over KC? This is the question.
If Case 87 S had tacked at Position 2.5 and protested, how would we rule?
Combine the Case 87/R14/Seamanship/Safety tug-of-war and the period between the RoWs reasonable apprehension and unreasonable apprehension and we see the greyness for both boats.
While for R10, case 50 is handed to us on a plate, for other rules I tend to be a little more stricter on establishing 'reasonability' of ROWs supposed apprehension and giving it allowance. I lean more on the general meaning of the word 'need' in the definition and whether KC was complying. I don't jump straight from RoWs judgement to a conclusion of KCs rule breach, as I often see.
Good chat.
Thanks.
A tack by S at 2.5, I'm DSQ'ing P.
That said .. nice topic and thanks for sharing your internal debate.
Sailors regularly push the boundaries of avoiding contact without taking into account their need to allow others space for complying with RRS 14, plus the other requirements of keeping clear. It is this issue which causes sailors to feel like judges are "defaulting".
Safety is rule 1 and 14 obligates boats to avoid contact or not to cause contact. There was reasonable apprehension in the mind of ROW boat that there may be a collision and she took action to avoid that situation. In my opinion, I will DSQ KC boat.
Since you have reached a Case 50 conclusion so clearly, can you address these points I have.
1. Yes, there was apprehension but what makes it so clearly 'reasonable'?
2. Where in Case 50 (or the rest of the Casebook) does it suggest that Case 50-Reasonable apprehension can be applied in rule 11 situations?
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Niko,
I'm still thinking about your post. Actually, I'm not sure you can presume that W was not in control simply because her move was hard and tightly timed.
I think the problem is my word 'just'. Let's just take it out.
Justbefore she thinks that RoW may need to act to avoid contact, W acts by luffing hard.Meanwhile, can you think of any time RoW had no need to take avoiding action, but still have a reasonable apprehension ...? Or are the two mutually exclusive by definition?
1. I enclose an extract of relevant portion of Case 50.
A starboard-tack boat in such circumstances need not hold her course so as to
The fact that L took action to avoid collision at a time when W also initiated action implies there was an apprehension in the mind of L. W, as per me, took the action late.
2. Case 50 does not say anywhere that it can be applied to rule 11.
I would say so yes. I suggest that "reasonable apprehension" is a fair way short of certainty. If you consider two boats that are in fact on courses that will bring them within a very few inches of each other there is no actual need to take action, but at a reasonable distance there will be an entirely reasonable apprehension that a collision may occur, and a prudent sailor may take avoiding action anyway.
Incidentally, isn't this a scenario where communication between boats, while not compulsory, is advisable? If Give Way hails ROW to say they are well aware of the situation, propose to keep clear etc, the apprehension on the part of ROW will be much less than if Give Way is ignoring all hails and staring at the far horizon.
I would wonder though, two things as a result.
1. Is the phrase 'with no need to take avoiding action' in the definition of keep clear a little loose? Perhaps
"with no apprehension of need to take avoiding action" would better fit the tribal voice.
2. Should the casebook extend the concept of 'reasonable apprehension' as an argument for ROW's action and evidence/proof that KC did not comply with her obligations? Currently only Case 50 makes that case, and it essentially limits that to Rule 10.
In fact, all the main cases mentioned in this thread (with respect to RoWs 'need' to take avoiding action/r14 refer to Rule 10. Wouldn't it add clarity if some other RoW/KC rules were covered in the casebook with the 'reasonable apprehension' principal?
Food for thought. I think that's all.
Thanks,
The reason I bring this up in this context is to possibly frame this in the context of RRS 16 and how Case 50 creates a reasonable timespan of action between RRS 16 and RRS 14.
From RRS 16's POV
Each time a ROW boat changes course, she shall give the KC boat room to KC. When the KC boat is in an obvious state of KC'ing (let's say P/S .. > 6 BL's apart ... bow-to-bow course intersection), each time the ROW alters course, there is a reset opportunity for KC to 'continue to KC'.
From RRS 14's POV
A ROW boat need not act to avoid contact "until it is clear" that the KC is not keeping clear. Rhetorically, RRS 14's "when it is clear" is a single moment in time at which time the ROW boat must act in the time-rhelm of "reasonable possibility". At that point of time of action, the KC boat assumably is not in a state of keeping clear. If ROW's action to avoid contact with an KC boat that is not keeping clear involves changing course, that change of course doesn't effectively create new RRS 16 KC room entitlements to the KC boat already in a state of not keeping clear.
So, Case 50 spans the space between "Clearly KC'ing" .. where RRS 16 provides new room to KC with a course change by ROW .. and "Clearly NOT keeping clear" where the ROW boat's actions may be too late to avoid contact.