Crashing and smashing, crunching and tearing, denting and slashing of vessels and flesh is never a good thing to experience yourself or know that it's happened to a friend, loved one, or client. There is no sliding scale to determine the fault in a vessel collision, but there are some definite guidelines that I know of that may help you get a clearer picture of where you stand. The first and foremost guidelines that I use aren't guidelines at all. They are a set of laws known as the Navigation Rules. If you've been involved in a vessel collision, you've probably been informed of their existence by now. The other thing that I rely upon is the evidence in the case. Both physical evidence as well as testimony by principals involved and others is always a great way to find out what really happened and who's to blame. I then use the best guideline of all. That guideline is my experience as a professional mariner and expert witness in boating accident cases. Good old common sense hasn't failed me yet, nor has it ever been rejected by a court that I've advised.
My advice always includes and never strays far from the law itself. I have read the Navigation Rules from cover to cover more than ten times, and I constantly reference them. I always keep a current version in my library, and I have always kept one on board every ship I've captained.
The Navigation Rules contain written laws enacted by our government as well as other governments around the world. There are an Inland set of rules as well as an International set. Never assume that just because you're cruising or sailing in U.S. waters that the Inland rules apply. Always consult a chart and a U. S. Coast Pilot to know for sure as to which set of rules are to be followed. Did you know that the courts have declared that a current issue of a U.S. Coast Pilot reference book is an extension of a chart? Prior court rulings may also apply. That's case law. So, it would be kind of tough to convince a good expert, the Coast Guard, or a court of law that it wasn't your fault that you ran into the rocks, because they weren't marked on your chart. It would be unfortunately for you and your case if they happened to be listed and warned about in the Coast Pilot! Always keep on board your vessel current charts, the Navigation Rules, and a Coast Pilot for your area.
The rules tell you what you cannot do, and they tell you what you are required to do. Yes, sometimes you must maneuver your vessel in a certain way in certain situations in order to comply with these laws. If you fail to maneuver, or fail to communicate, or fail to use your radar or fail to, etc. etc. etc... then you may be found to be at fault through your omission to act a certain way. These laws are used to determine fault on a percentage basis. If you violate one or more of these laws in regards to the events that lead up to and/or involve a collision, then I will assign fault to you of some degree. The degree changes depending upon the evidence that I find and my professional experience with how the rule or rules violated contributed to the collision. So, that degree can also change with the same the law being violated depending on the situation of it's violation. "But that's not fair!", you say. You might think that I'm placing a subjective analysis on a objective rule. Indeed I am, and here's some examples why.
If you were cruising along in Inland waters, in a power vessel, around a blind curve, on the correct side of a channel, at a speed of six knots, and you failed to give a prolonged blast on your whistle, and you then collided with another vessel, I would assign you about 5% of the fault just for failing to sound your whistle. This is assuming that you had no radar, weren't required to be in a vessel traffic system, clear weather, etc. Now let's look at violating the same rule with some different factors involved. Let's say that another power vessel was also traveling at a speed of six knots around that same blind curve and strayed over to the wrong side of the channel and was then involved in a collision with you. I will now assign him fault for being on the wrong side of the channel and more fault for failing to sound the same signal that your vessel also failed to sound. I would do that, because I know that there is a certain intent to every law. The courts and myself are allowed to, as well as required to, interpret the intent of the law violated. The intent of the sound signal law for blind curves is to alert other vessels, people, or what have you, of your approach so that they can take action to avoid a collision or accident. It's more important for a vessel to sound a warning signal when on the wrong side of the channel than one on the correct side even when they are both cruising slowly. The wrong side of the channel vessel might now incur about 10% of the fault just for the sound signal violation alone, which is about double the liability for you failing to sound your whistle.
Now you are speeding along at 36 knots on the correct side of the channel and you fail to give a warning blast around that same blind curve. You then become involved in a collision. I will now assign you about 20% of the fault for failing to sound your whistle. I will also assign you a certain percentage of fault for traveling faster than what is safe under the conditions. There are now three different levels of liability for the same violation! It is more important to sound your whistle around a blind curve traveling at 36 knots than six knots regardless of where the vessels are located. That's because it's more reasonable to assume that a collision will take place at 36 knots without sounding a whistle than at six knots without sounding a whistle. There's almost no time to react if you don't sound a signal at 36 knots. The danger is higher, the consequences are higher, the intent of the law is negated the most, and common sense would tell you that is when the sound signal is needed the most. These examples are used by myself to explain to a court or jury why I might assign different levels of liability for the exact same violation. Some people feel that it's unfair to assign any liability to a vessel that had the "right of way" or was the stand on vessel. I've have also talked with other court appointed maritime experts that say that there's always some fault to assign to both vessels. Let's take a look at both of those theories.
There's a video on the internet that shows two power vessels on an obvious collision course towards each other. Neither one wants to back down or change course. One vessel is the stand on vessel. He has the right of way so-to-speak. The other vessel is the give way vessel. He must alter course and/or speed. In short, he must yield. Both smash into each other without any course or speed changes. No communications were attempted by either vessel, and no radar watches were set. Both vessels have fault, because nothing in the Navigation Rules gives you the right to cause a collision. As a matter of fact, both vessels are required to take action such as backing down, sounding danger signals, or altering courses to avoid the collision once the vessels enter an extremis or an extreme and imminent collision situation. Therefore, under the law the stand on vessel had no right to contribute to that collision. I would assign about 20% of the liability to that particular "no one's gonna violate my right of way" skipper. The other give way vessel gets about 80% of the fault.
Those percentages would have changed if their actions would have changed. If the stand on vessel would have tried to back down during extremis, then he wound have gotten less than 20% fault. If he sounded the danger signal, then he would have gotten even less fault, and so forth. You can see how the fault is diminished with every action to avoid the collision as well as comply with the laws that dictate required actions prior to and while in extremis. That stand on vessel, however, would probably not escape without any fault being attached. You can always argue that all of the required actions weren't done soon enough or large enough or good enough, because obviously the result was a collision. I can understand that concept. I agree with it as far as it goes, but the fault can become very small depending upon how well the stand on vessel complied with all of the rules under the conditions at hand. The fault might even drop to a mere 1%. That's pretty close to zero liability. Some experts says that 1% is as close as you can ever get to a no fault collision. I disagree.
What ever happened to keeping an open mind and letting the facts paint the picture? There are times when a vessel is involved in a collision when, in my opinion, there is absolutely no fault to be assigned to one vessel. Those "no fault" collisions are extremely rare, and involve the give way vessel acting in a grossly negligent or a deliberate way. I have personally seen one sailboat play chicken with a passenger vessel. The sailboat kept cutting in front of the bow of the passenger vessel to scare the captain, crew, and passengers. The sailboat skipper was laughing harder with each closer pass. But a sailboat has the right of way, you say. Remember, nothing in the rules gives you the right to cause a collision. You can't act in a grossly negligent way and then later say that you had the right-of-way.
There was another time when a motor yacht was doing the same thing to another passenger vessel on San Diego Bay. The large new yacht was speeding and waking out and cutting in front of the passenger vessel by mere inches. Even though the passenger vessel was the stand on vessel, he was backing down, changing courses, sounding the danger signal, calling the Coast Guard, and tried calling the yacht. He was asking other vessels in the area to help him fend off this dangerous skipper. He said that he had children on board that were in danger and in a panic. He ordered his crew get their passengers into life jackets, and had the passengers lay down on the deck and brace themselves for impact. He tried to head to the dock all the while trying to avoid a collision with the yacht which kept buzzing him. He did everything he could to avoid a collision. I ask all you experts out there, how much liability would you assign the passenger vessel had there actually been a collision? My answer is zero. The USS Cole was docked when a small boat rammed her. That was a deliberate terrorist attack by one vessel against another vessel. How much fault would you assign to the Cole for that collision? How much fault would you assign to the victim of other collisions that involved gross negligence such as the case of the yacht or terrorism such as the case of the Cole? I would assign zero fault to what I refer to as "victim vessels" in those cases. The first examples that I gave were just that- only examples. That's because they assume so much. There are many more facts that must be examined when determining fault in an actual case.
I always thoroughly investigate a boating accident that I'm required to testify about. I never assume that the Coast Guard, Police, or Sheriff's report will contain all of the facts. I want to know for myself if that really was a blind curve. What is the legal definition of a blind curve? Who said that one vessel was on the wrong side of the channel? I want to know who said it and why they said it. Was that what they really saw, or are they being pressured to skew their statements? People sometimes lie. Someone might have been told that they will lose their job if they don't side a certain way. They may have kids to feed and a mortgage to pay. It doesn't make lying right, but I need to find out the truth of the matter regardless of who's paying my fee. Maybe that's what they thought they saw, but in reality if you stand in a certain spot there would be no way of seeing what they claimed to have seen. How are you going to find that out if you don't actually go out into the field and see for yourself? I don't believe in armchair boating accident experts. You have to be proactive and look at all of the evidence.
The physical evidence usually never lies. Physical evidence can lie upon rare occasions if you happen to misinterpret it. I try to look at all of the physical evidence myself, interpret it myself, rely upon other experts when I need to despite my own ego, and interview witnesses for myself too. What was the weather like that day? Was it day, or was it night? What was the sea state like? Were there lookouts posted? What were these vessels equipped with and was that equipment being used properly? What was written in the ship logs- before they were doctored?! You can usually tell when information is squeezed into spaces in a ships log. Was it true and correct information, or was it false information? Why wasn't it entered at the time it was claimed to have been entered? A skipper, captain, pilot, coxswain, or master is responsible for the safety of his or her vessel and crew as well as has a duty to operate in a safe manner. That includes a lot of areas other than written laws. These unwritten law areas can also contribute to finding fault. I have a thousand questions that I need answered that no one report can possibly contain. I need those questions answered in every single case, because people are relying on me to be the expert with the correct answers and interpret all of the evidence correctly.
Liability can shift or change from one vessel to the other depending upon how the physical evidence is interpreted. A perfect example of this would be that there is a hole in the hull of one ship in its stern or back end. The skipper of that ship claims that the other vessel was attempting to overtake him or speed past him from behind. The other ship's bow stem or front end has damage, and there's paint transfer evidence from both vessels involved. If the skipper's statement was true, then there would be about a 90% fault assignment to the vessel trying to overtake him- not assuming other factors, but this is just a hypothetical example. The overtaking vessel's skipper claims that the ship he was overtaking did not maintain his course and speed under the conditions as the rule or law required. If this is true, then the fault looks more like 60% to the overtaking or passing vessel. Now, let's say that the skipper with the bow damaged vessel says that he was cruising along behind the ship with the stern damage without trying to overtake him. He says that the ship in front of him just stopped all of a sudden and then backed down into him! If that was true, now we have a complete shift of the liability. The 90% fault is now on the vessel with the stern damage, because backing vessels in general have to stay clear of all other vessels. There were three different ways to interpret the same physical evidence with three different liability results.
Physical damage evidence pointing towards fault can also change with additional physical evidence added into the picture. This example is a little bit different than the example cited earlier about the sound signals, because those mostly relied on witness statements. Let's now look strictly at additional physical evidence.
In this scenario we will use the two power vessels depicted in the diagram above. We can plainly see damage to the port beam or left-side of vessel A. Vessel B has damage to the bow area. Vessel B now has about 90% of the fault in this hypothetical example under the law, because vessel B must stay clear of vessels on his starboard side. Both vessels were operating in foggy conditions. Vessel A's master said that he was sounding the appropriate sound signals for being underway in the fog. He also maintains that he had his navigation lights on, and was proceeding along at a very slow speed (bare steerage) when the collision occurred. Vessel B's skipper says that he heard vessel A's sound signals, and that he was also cruising at a very slow speed (bare steerage) while sounding his whistle. Vessel B had a lookout posted on the bow, but then vessel A just appeared all of a sudden in front of him. Vessel B tried to stop, but it was too late to avoid a collision. This scenario resulted in about 90% fault for vessel B. Now let us consider the addition of one more piece of physical evidence.
There was a considerable amount of physical damage on the port or left-side of vessel A as I stated earlier. This damage resulted in vessel A's port navigation sidelight becoming broken after the collision. Vessel A's broken red navigation light bulb was recovered by the Coast Guard investigating the collision. The broken light bulb was sent to an FBI lab for analysis. The resulting lab report clearly stated that the light bulb was not operating at the time of impact. The captain and bridge crew of vessel A swears that the navigation lights were switched on all the while. Even witnesses from other vessels in the area state that they saw one or some of vessel A's navigation lights on. The courts have ruled that it's not good enough for a master to merely turn on his navigation lights to comply with the law. He has to physically walk around his vessel to ensure that all of the navigation lights are on and lit brightly enough to comply with the Navigation Rules. That's case law. So now we have the previous vessel damage evidence pointing towards a high level of liability (90%) for vessel B with the introduction of the new physical light bulb evidence now reducing vessel B's liability. It is always important to have your navigation lights on at night or other conditions, but it's vitally important to have them all on and burning brightly while operating in the fog. We now have a 50% liability for both vessels. That's a big difference from 90%!
The court is relying upon my experience as a professional mariner, and I use that experience to find out the truth and to determine liability. Experience, technical knowledge, knowledge of the laws, and personal character are just a few of the factors that are involved in being designated as an expert witness in a court of law. I will now explain to you what I needed to become an expert so that you can get an idea about the people that are empowered to determine fault in a boating accident case.
When I was put through the voir dire process or "checked out" for the first time by a superior court judge it was quite an extensive process indeed. He wanted to know what type of professional licenses I held as well as how many renewals I had. Fortunately, I had an above average tonnage license with a towing endorsement and five renewals without incident. He wanted to know how many years I had been in the maritime industry. He wanted to know my education level too. At that time I had an associate science degree in administration of justice. He wanted to know what "scholarly contributions" I had made to the maritime industry. Once again, I was fortunate enough to show him an historical and technical book I wrote about a ship.
I also had written an article about a ship collision that took place in the fog on the Columbia River. I told him all about that collision. He also wanted to know the type of vessels I crewed on or captained. Not only did he want to know about every position that I held, he also wanted to know specifically what the jobs entailed. I had to verbally explain, in detail, about every job I ever held in the maritime field. You can imagine how long that must have taken to explain! Fortunately or unfortunately for me, depending on how you look at it, I held just about every job on every type of vessel imaginable except for submarines and hovercrafts. The defendants and the plaintiffs both listened intensely as the judge continued to grill me for hours in court. I put myself through all of that as a favor to a friend of a friend. I was doing it more for the experience than for the money. Anyway, after all that the judge abruptly stated that he found me to be an expert in my field and asked both attorneys if they had any objections. Both immediately agreed to accept me as an expert. Since then I have continued to build my resume in many more diverse ways such as sitting on advisory boards, attending conferences, teaching, and publishing even more articles. Good experts really never stop learning or contributing. So, even though there is no sliding scale to assigning fault in a boating accident, I hope that I gave you a better idea of how to "guesstimate" liability before you hire an expert or get to court. In order to get closer to the actual fault numbers, you really need a good expert to recommend liability levels.
Assigning liability levels in vessel collisions varies depending upon the laws violated, the situations that those laws are violated, as well as the combination of laws violated. It also depends upon the evidence in the case as well as the expert's ability to investigate the accident properly enough to find out the real truth. It also depends on the ability of the expert to apply his or her actual experiences as a professional mariner in such a way that makes it easier for those interested parties to understand what really happened and what contributed to the collision. Experts should try to explain in simple to understand terms how those contributions to the collision affected their decisions to assign liability. They can always cite specific statutes and laws later.
Being able to give my "opinions" in open court and in depositions and then have those "opinions" used as evidence for a jury or judge to use is an enormous responsibility. Complying with the laws and operating in a safe manner on the water is also an enormous responsibility. Many people that I meet in the justice system regret failing to do so. They often tell me how they wish that they had it all to do over again and how they would have acted differently.
by Capt. Marc Deglinnocenti
Capt. Marc is now living in Boise, Idaho, USA.
OldArmada@Gmail.com