Need some information regarding the consequences of right of way infringements

[lin pardey]

Some of you have already read about this incident, but please read through this and see if you can provide some good input.

On the last weekend in January, up to a thousand boats take part in the Auckland Anniversary day regatta, including some of the most modern sailboats afloat along with a beautiful fleet of true classics. Several race courses are laid out in the inner and outer harbor area. This year was no different. But unfortunately one terrible incident has raised serious questions.
On a bright, sunny, light wind day. It was estimated there were up to 10,000 pleasure boats of all descriptions on the harbor that day. The owner of a 60 foot yacht was returning home from his holidays. He was at the helm, inside a hard dodger; a woman friend was on board in the cabin or cockpit area. They were under power. Stored on the foredeck of the boat was a large hard bottomed inflatable. The course he chose to steer was directly through a fleet of sailboats which had just crossed the start line of the race. His speed, according to observers, was between 7 to 10 knots (the harbor speed limit is 10 knots but New Zealand maritime law says that within 50 meters of another vessel you must reduce speed to 5 knots).
Unfortunately, one fleet of classic boats had just gone across the starting line. Gypsy, a 70 year old 34 foot classic sloop was close hauled on starboard, carrying a genoa and full mainsail. The owner and crew heard shouting just seconds before they were rammed by the 60 footer. The impact was so great the boat sank instantly. The crew, Jill Hetherington suffered a near drowning, a pelvis fracture, massive bruising and has taken two months to recover enough to walk without crutches. The skipper of Gypsy, John Pryor was not injured but like Jill, lost many personal possessions besides his boat (wallet, computer, cellphone etc.) The owner of the powering sailboat stated, “I simply didn’t see them.”
Gypsy was lifted from the harbor floor and now sits in a storage shed. Insurance coverage will only pay the insured sum which is about one fifth the cost of restoring this classic boat – the last designed by Arch Logan one of the most famous New Zealand designers.
The Auckland Harbor master fined the owner of the larger vessel $200 for breach of right-of-way rules.
Reason for this post – Many of us down here are hoping to encourage the Maritime Safety Board to instigate an inquiry into this event as they have more power than the harbor board. Not only would a ruling by this board carry more weight to help John Pryor work toward a fairer settlement with the other boat owners insurance company, it would help remind everyone of the importance of keeping a very good lookout (a person on the foredeck on boats with any obstructions to their vision in crowded conditions), respecting race start lines and going around them, etc.. I am working to gather information to present to the director of the maritime board.
My question for forum members – how would this type of incident be handled in your home port. I.e. if an incident like this happened in say, Newport Beach or Newport Rhode Island, what would be the consequence for the give way boat? If anyone can point me to a website laying out penalties or a legal precedent, it would be appreciated.
If you want to read more details of the incident you can click on any of these links: http://www.nzherald.co.nz/nz-herald-...ectid=10782311
http://www.theaucklander.co.nz/news/...c-yacht-gypsy- ruined/1315312/

thanks,
Lin Pardey
www.landlpardey.com

[wizbang 13]

What happens when a race boat goes over 5 knots?

[Ian McColgin]

One problem is that our courts assign porportional responsibility. The report does not tell us enough about what level might be assigned to Gypsy but that would be an interesting argument because once cognizant of a boat under power blundering into a racing start, Gypsy's master should have realized that there was a danger of collision and taken steps. From the report, it's actually possible that Gypsy was a blind to the situation as the offending vessel.

There might be a tort around that admiralty court perspective. I don't really know enough about how US law would go but the vessel under power was certainly showing a combination of lack of courtesy, lack of common sense and reckless endangerment.

[Roger Cumming]

In the USA the owner of the boat that sank would sue the owner of the boat under power.

[orbb]

In the USA the owner of the boat that sank would sue the owner of the boat under power.

As would the injured woman. Actually, she might sue both, since they both had responsibilities. A jury could sort them out.

[Breakaway]

The vessel under power should have been cognizant of a fleet of racers in his course. No doubt. That said, the racer should have seen the blundering boob as well. "Interlopers" are not a rare occurrence during boating events, since we engage in them on public waters. I'm no sea lawyer, but the first thing that jumps out at me is that neither vessel was keeping a proper lookout.

And as said above, at least two lawsuits would be filed.

Kevin

[Phil Y]

We don't know from your outline whether Gypsy saw the boat under power. He may well have done, and assuming the vessel under power would give way, and given that he was racing, pressed on. His visibility may have been hampered by the sails and he may have been concentrating on other things moments before the collision. We do not know.We also don't know how fast Gypsy was sailing, and whether the 50 metre rule applies to boats in a race. It would in any event be rare for one vessel to be found 100% liable. What Ian describes a problem is in my opinion a feature-the law will apportion liability according to fault/responsibility. The weight of fault/responsibility in this case would appear to lie upon the vessel under power. The penalty imposed on the motoring vessel has very little to do with liability as between the two vessels. $200 may even be the maximum penalty available under the statute. I don't know. Gypsy has an insurance claim, but if insurance will cover only a small portion of the damage caused, she or her owner will also have a claim against the powering vessel (or her owner/skipper). Whether the damages will be capped at Gypsy's pre accident value, or whether the restoration cost is covered I do not know. NZ and Australian courts don't order punitive and exemplary damages. Its just about the commercial value of the actual damage done to the boat. The injured woman may be able to recover some personal injury compensation from Gypsy's insurer-the insurer in turn would possibly recover from the vessel under power-or its insurer. It may be possible for the claim for damage to Gypsy to ride on the coat-tails of the woman's insurance claim-although it is most likely that Gypsy's insurer will pay her a settlement without going to trial. Because of the multiple claims/causes of action which are available, and the involvement of insurers, it is complicated.

[Ben Fuller]

Colregs would put the liablity 100% on the powered vessel. No excuses. An action should be brought by Gypsy's owner/ insurance company as well as the person that was badly injured. In the states this heads for admiralty court; I rather think it would head the same way in NZ. A discussion with an admiralty lawyer would be appropriate.

[Roger Long]

An event of this size would almost always be accompanied here in the states by a Notice to Mariners, repeated USCG Security broadcasts, and even special navigational restrictions. These would take a lot of the wind out of the "I didn't see 10,000 boats so I can't be blamed for hitting just one." defense. Depending on the position the Coast Guard had taken on the event, the context of the collision could be entirely different once the case reached admiralty court. The powered vessel could have been in violation simply for being in that spot even without hitting anyone if an exclusion or restricted zone had been established.

You won't get much useful perspective from this country though. Civil lawsuits are where most of these things are settled. This is a nation where a 16 year old got his pilot's license on his birthday and his parents let him go off on a celebratory jaunt with a plane full of teenage friends. They buzzed cars up and down the mountain canyons of California followed by police cruisers, police aircraft, and hundreds of reports from frightened motorists. They finally hit power lines which were unmarked because no one ever imagined that an aircraft would be that low down in the canyon.

The parents of the pilot spent nine years suing the manufacturer of the aircraft and won. Better restrict questions about your case to rational and civilized nations.

[Ian McColgin]

Note to all: Ben Fuller's understanding and it's implications are wrong.

Rule 2, Responsibility
(a) Nothing in the Rules shall exonerate any vessel, or the owern, master or crew thereof, from the consequences of any neglect to vomply 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. [Emphasis added.]

More specific to this case:

Rule 17 Action by Stand-on Vessel
(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, SHE SHALL TAKE SUCH ACTION AS WILL BEST AID TO AVOID COLLISION. [Emphasis added.]

Lynn's account of the case provides no information as to what, if any, actions Gypsy could have taken. One can easily imagine the offender weaving down the starting line and popping out from behind a vessel just leeward and ahead of Gypsy, leaving Gypsy any chance to even see the thread. One can as easily imagine Gypsy so focused on the line and sail trim and so sure that other racers would be holding their courses that they were not maintaining a proper look-out. The results of that investigation before an admiralty court could lead to Gypsy sharing liability. Or not. We don't know but we do know that the stand-on vessel has an affirmative duty to avoid collision.

[Thad]

Ian, you and others keep stressing that aspect of the rules almost without speaking of the give way vessel's responsibility, making it sound like it was Gypsy's fault. Strange to me, especially in the given case. Lin, you may not have seen the original thread.

[Ian McColgin]

No Thad, I am not saying that it's Gypsy's "fault." The vessel under power was unbelievably negligent and could even be reasonably accused of criminal negligence. And, as I took the trouble to hypothesize, there are circumstances where no matter how alert Gypsy's master and no matter how ably she was handled the collision was inevitable.

From Lynn's account it appears that the vessel under power came from the lee side. There is no mention to indicate that a member of Gypsy's crew was stationed to leeward watching under the sails and the fact that Gypsy was alerted only when they heard shouting (from what other boats?) reinforces that impression. If those facts are correct, it's not a good place to begin building the case that Gypsy had no responsibility for the collision.

Frankly, the give-way vessel's skipper should be removed from the sea. There are few penalties adequate for his behavior. But it is also reasonable that in any swirl of libels before an admiralty court Gypsy could be found in some part at fault.

I also seldom pass up an occasion to remind all of the seaman's basic duty and that "right of way" or even the more modern "stand-on" is not a duty to plough on regardless.

Here lies the body of Michael O'Day.
He died defending his right of way.
He was right, dead right, as he sailed along,
But just as dead as if he'd been wrong.

[wizbang 13]

Yup, Last time I raced, ( literally "last time") My jib boom tore through a cow horns cockpit , doing $2000 damage ( I paid the next day)) and almost de capping 3 people!
I was on the port tack, they were stbd. I was at fault.
But they had spent 20 seconds yelling "starboard starboard" at us,( not realizing no one was running the main sheet and my tub was not able to "duck" them) , instead of luffing up to save themselves and avoid a collision.
Some sailors, 'specially when racing, will rather fight than switch.
( my own boat suffered a small ding in the jib boom)

[Thad]

Ian, appreciated. I guess I just wanted to read it. The Gypsy case is quite different, not involving a vessel in the regatta, but wizbang's case illustrates problems with many a regatta.

[Garret]

But they had spent 20 seconds yelling "starboard starboard" at us,( not realizing no one was running the main sheet and my tub was not able to "duck" them) , instead of luffing up to save themselves and avoid a collision.
Some sailors, 'specially when racing, will rather fight than switch.
( my own boat suffered a small ding in the jib boom)

Yet another reason why I don't race. Idjuts.

[Michael D. Storey]

Colregs would put the liablity 100% on the powered vessel. No excuses. An action should be brought by Gypsy's owner/ insurance company as well as the person that was badly injured. In the states this heads for admiralty court; I rather think it would head the same way in NZ. A discussion with an admiralty lawyer would be appropriate.

It is my interpretation that col regs are just that, and that all parties have responsibilities to avoid collisions at sea. Everyone needs to maintain a proper lookout. I remember a slim volume by a guy lasnamed Taylor who mentioned keeping a lookout, which included popping your head up every 30 minutes to check for drifting, etc while at anchor.

I regret this avoidable accident and the heartbreak that it caused. I can easily say where the lion's share of the blame rests, but everyone needs to be aware of the potentials that water travel brings.

[Ben Fuller]

i recognize that the stand on vessel must do what it can to avoid the collision. Lots of ink has been generated on when the stand on vessel needs to alter course. However, that does not make the burdened vessel less liable. If in fact the stand on vessel was hit on the leeward side the reason that they did not see the motor vessel makes sense. It is the quadrant that is almost impossible to monitor in a vessel with a deck sweeping genny. There is no way that you can see through the sail, and what you end up doing is popping around the leech from time to time. It is why little racing boats have windows in their jibs, which is something I rather suspect most forumites don't have, whether it is a genny or a lug. The lawyers can argue about this but it does not diminish the motorboat's liability.

[Stiletto]

Has john Pryor taken legal advice regarding the possibility of recovering more money from the offending vessel's insurer or owner?

It is quite possible that the offending vessel's liability cover is more than the repaired value of the damaged yacht herself.

[John B]

I don't know where all this leeward side comes from. She was on stbd it says above ,and T boned fair and square on the stbd side. The photos are in the original thread.
I don't know what John could have done to avoid collision, it was light , he only had a knot or three boatspeed and a big boat under power came through a fleet and just ran him down. By the time he realised he was in peril, it was all over.

[Ian McColgin]

Thank you John B - I'd not in my feeble brain recalled the earlier thread and news reports and had not realized that Gypsy was indeed hit by Anteaus on the starboard side.

From follow-on articles:

"I knew we had right of way," says Gypsy owner John Pryor, who was at the tiller on the starboard side.
"I looked up and saw Antaeus but I believed it was altering its course. So I turned away and kept doing what I was doing when we were blindsided.”
That article goes on to note:
The Auckland Harbourmaster investigated the collision and drew both skippers' attention to rule 22 that requires both parties to avoid a collision [see panel]. Despite being under sail, vs motor, Gypsy's owner was also given a warning.
[http://dynamitetrends.co.uk/news/Auc...sary-Day.html]

I could not find a sidebar to identify “rule 22” but think that’s a misprint and the correct reference is to Rule 2.

I can see Pryor’s reaction - might have done so myself.

Pryor’s failure to confirm his impression will no doubt haunt him for life even if there are data to show that he could not have turned Gypsy enough to evade. The Harbormaster’s “warning” to Gypsy should not be a cause for assigning any more than 10% of the liability to Gypsy, perhaps less or none depending on witness statements as to when Gypsy could have realized anything.

Charles St Clair Brown, skipper of Anteaus, is a sailor of great reputed experience and frankly his behavior in causing this collision is incomprehensible. Is he so locally important and entitled due to his yachting father that he can just cruise under power through a crowded start? Is the RC so oblivious that they’d not have a patrol boat to warn him and his ilk off? It must be said that St Clair Brown did act promptly to save Gypsy’s crew, Jill Hetherington.

My heart goes out to John Pryor and Jill Hetherington. Unless St Clair Brown comes through with far more than his insured limit, whether by his own will or by tort, they have been irreparably harmed by inexcusable and thoughtless boat handling.

I hate to see situations where strict traffic control, patrolled starting area and some of the course, and all that, become necessary but if there are really 10,000 boats buzzing about for this day, perhaps some special operations are in order.

[sailnstink]

Was it an accident or real negligence? If it was an accident and you pursue it for higher penalties you make it worse on yourself and everyone else when something untold happens. As for the boat, if it means that much to you, owners need to insure them for full no holds barred restoration cost, not market value. Hope they recover from their injuries as quick and easy as possible, there are other boats to sail.

[John B]

You're right on the money there ss. Except for the insurance comment perhaps. Its my understanding that you cannot 'overinsure' a boat , or anything for that matter. Or maybe you can but its outside the bounds of normal insurance?

I think the issue is that our Marine Safety Authority has not investigated . They may well have found that it was an accident,or not, but because they have walked away it leaves a taint .
I'll tell you what people are saying to me...to paraphrase " they ( the govt)can take your boat off you if you have an undersized fish on board but won't look into an incident of this level and seriousness'.
' they( the MSA) took a man to court last year because he came too close to a ferry ,found him guilty and fined him nearly $5k ,and yet a boat gets run down with all the near fatal implications of that ,and they won't look into it'

[johnno]

John, I wonder if a note to them (MSA) to the effect that there is a very wide international audience watching their behaviour with respect to this incident might prompt some action?

[John B]

They've had plenty of feedback Johnno. It seems to have become a sort of juristiction thing between the Harbourmaster and the MSA.
At the end of the day and trying desperately to be open minded and objective, I feel that John and Jill have been hard done by and that justice has not been done(yet). And, I don't know anyone who disagrees with that.

Maybe I'm jumping the gun and there's something in the offing, if this weather bomb dropping down off Fiji sorts itself out we'll catch up at North Cove this weekend and perhaps find out.

[Bob Triggs]

Was there any drug / alcohol testing done?

[purri]

Power and social connections are a very addictive drug. Read of the implications arising what you may...

[john welsford]

I asked a retired lawyer friend about this, and his thoughts are that the $200 fine imposed by the Harbour Board ( the maximum that they are empowered to impose by the way) may be much more important than it seems in that it has established liability. As I understand it the Harbour board determined that there was fault in that Gypsy did not attempt to avoid the collision, but that the majority of the fault lay with Antaeus which vessel being under power was required to stand clear.
That liability being established there is a very good chance of a civil action on the part of John Prior and Jill Hetherington against C St Clair Brown being successful.

A note to those outside of NZ who dont know our system, we have a Government run no fault accident insurance scheme known as ACC ( Accident Compensation Corporation ) and no right to sue for personal injury. In the case of injury by accident ACC pays all medical and rehabilitation costs, 80% of lost wages and among other things will even alter houses and provide vehicles adapted to disabled drivers. So, no, Jill who has my heartfelt sympathy, cant sue in that respect.

Lin, although I've not met Gypsys people I'm watching with real interest, and would be pleased to donate should a fund be started to rebuild the boat. Please keep me posted about that should it happen.

There is a guy by the name of Jim Lott who is part of the MSA, has to do with recreational craft, and he'd be a good one to contact to give the ball a good push to help get it rolling if its not already.

John Welsford

[Mrleft8]

I was always told that a boat under sail always has right of way over a boat under power, unless the boat under sail is racing.... I have absolutely no idea if that's true, just what I was always told.

[Ian McColgin]

It's not true in so many many ways.

A sailboat shall give way to a boat not under command; and boat restricted in ability to maneuver; and a boat fishing (not just hook and rod). [Rule 18(b)] A sailboat also has no right-of-way over any vessel however propelled that the sailboat is overtaking. This latter rule confuses people who can't correctly judge that they are 2 points (22-1/2 degrees) abaft the other boat's beam and mistakenly think they are crossing.

There is nothing in the rules about race statuse making any difference, however many RCs have a rule where if in the RC's judgement any racing boat in any way inhibits the passage of any non-racing boat, it will be disqualified. More RC's make that rule to explicity apply to commercial traffic - ferrys and tugs and such - but consider that the normal COLREGS apply to pleasure craft.

In one race I frequent, some of the charter fleet have the misplace arrogance that when their party has lines over, they count as a vessel engaged in fishing. Under the rules they do not. Which does not stop them from going on the drift right in front of a closely packed fleet headed for the weather mark.

[zydecotoad]

Yup, Last time I raced, ( literally "last time") My jib boom tore through a cow horns cockpit , doing $2000 damage ( I paid the next day)) and almost de capping 3 people!
I was on the port tack, they were stbd. I was at fault.
But they had spent 20 seconds yelling "starboard starboard" at us,( not realizing no one was running the main sheet and my tub was not able to "duck" them) , instead of luffing up to save themselves and avoid a collision.
Some sailors, 'specially when racing, will rather fight than switch.
( my own boat suffered a small ding in the jib boom)

If this was really a race, what did you expect them to do ?

Obviously, they expected you to be able to maneuver your vessel. Should have started that duck much sooner.

[wizbang 13]

If this was really a race, what did you expect them to do ?

Obviously, they expected you to be able to maneuver your vessel. Should have started that duck much sooner.

Yes, I was in the wrong.And I paid .
I was not steering, I had a "hot shot "schooner guy steering who decided to duck.
truth is, I had never even heard the term"duck" until then.
What I should have done was take over the helm and tack!
racing, it is not my cup of blood

[John B]

Dip is the term we'd use here. It usually goes along with some other words like dump the #$##@!(*(( main now now now.

[zydecotoad]

Yes, I was in the wrong.And I paid .
I was not steering, I had a "hot shot "schooner guy steering who decided to duck.
truth is, I had never even heard the term"duck" until then.
What I should have done was take over the helm and tack!
racing, it is not my cup of blood

Yeah, that's bad. A "hot shot" helmsman who doesn't understand how the boat will respond will cause trouble. Glad that no people got injured. I race a lot of fiberglass boats and a few classic wooden boat. The glass boats pass within inches and no-one bats an eye. Typically the classic 'races' are a bit more gentlemanly about close quarters passes.

Take care, Todd Smith