Sailing Right of Way - Southwinds, October 2001

- Local News for Southern Sailors - September 2001 Next Story

The right-of-way and who is right
By J. Michael Shea

So tell me how it happened?

Well sir I was running the boat up from Key West, we had been shrimping down there, and it's like two o'clock on a Sunday morning. We are about 15 miles off the coast of Sarasota. I see this sailboat off to my starboard. It is sailing west and is going to cross my bow. I got my outrigger down...that's how we run...it gives us balance. So I can't turn too easy.

I figure this sailboat guy is going to change course a little and let me pass—sailing to my stern. But he doesn't, he just keeps on coming and I see that he is not going to change course and we have a problem. So I turn on the spotlight and shine it over at the sailboat. To my surprise there is no one in the cockpit and no one on deck. She is on automatic pilot. By now we are very close. I turned the wheel hard over to the right and start sounding my horn.

A few seconds later these four guys come up on deck. We are about to hit. Their sailboat is still sailing west and I've tried to turn east. I got her around and would have missed her but for my outrigger... the port one demasted her. I came around and helped them with their boat and that's when they started yelling at me that the sailboat had the right of way.

This case took place a few years ago off Sarasota, FL. It resulted in two lawsuits—one for the shrimp boat captain who was charged with a violation of the Rules of the Road and the other between the respective insurance companies as to who was responsible for the damages.

This case addresses a number of questions as to the Rules of the Road: Did the sailboat have "the right of way"?

Was the shrimp boat "engaged in fishing"?

Was the sailboat "a vessel not under command"?

Was the shrimp boat "a vessel restricted in her ability to maneuver"?

Was the sailboat required to have a lookout?

Who had the responsibility to avoid the accident?

Although the shrimp boat had its rigging down, it was not engaged in fishing. If she had her nets out and was fishing, then she would have been entitled to the right of way. Under the maritime rules of the road, a sailing vessel shall keep out of the way of a vessel engaged in fishing. A good rule of seamanship is to stay away from fishing vessels, then you do not have to try and figure out if they are fishing and have the right of way. Just give them the right of way.

Was the sailboat a vessel not under command? Not technically under the rules but practically...yes. The rules say that a vessel is not under command if she, through some exceptional circumstance, is unable to maneuver. This is usually a thing like a broken rudder but does not include having your vessel on autopilot.

Was the shrimper a vessel under restricted maneuverability because she had her rigging down as she was running? This is a close call, and some courts may rule that she was not entitled to this exception. Under the circumstances here, the sailboat clearly had far more maneuverability than the shrimper, and thus under the rules should have given way to the shrimp boat.

What about the lookout. Was the sailboat required to have a lookout? The answer here is simple—all vessels are required to have lookouts at all times. You cannot put your vessel on autopilot and go below at any time and not be responsible if there is an accident. Modern navigation being what it is today means boats do this. Good seamanship requires you to assume that when you see an approaching vessel, assume that it is on autopilot and take the necessary corrective action.

So who had the responsibility to avoid the accident? Under the rules, a seaman— on seeing another vessel—is to determine if there is a possibility of collision, and if so, take appropriate action. The rules require that positive action be made in ample time. Here our shrimp boat captain should not have assumed that the sailboat would take reasonable action and pass to his stern. He should have taken positive action of some kind such as calling the sailboat on his radio and establishing a passing agreement. And if failing to establish contact, he should have taken action to pass to the stern of the sailboat.

When in doubt, the rules require you to take early positive action. Remember the second rule of the Rules of the Road requires a seaman to take "any precaution which may be required by the ordinary practice of seaman, or by the special circumstances of a case."

This means forget the rules, even if you have the right of way. If you (1) had the last clear chance to avoid the accident or (2) could have taken early positive action and avoided the accident, you may be at fault—notwithstanding your right of way. The other guy may be at fault, too, but that will not save you from being charged.

So what happened in this case? The shrimp boat captain was charged with not taking early action to avoid the accident. The sailboat was charged with failure to have a lookout. The investigating officer from the Florida Marine Patrol determined: (1) The sailboat had the right of way but should have had a lookout; (2) the shrimp boat was not restricted in her ability to maneuver and should have taken action to give way to the sailboat.

The case came before a judge in Sarasota County. Neither the prosecutor nor the judge of this court handled many maritime rules of the road cases, and when it was pointed out that the Florida Marine Patrol officer was several miles out of his jurisdiction, the court—lacking jurisdiction—was happy to dismiss all charges against everyone.

The insurance claims were settled with each vessel bearing its own repairs.

So do sailboats have the right of way? Yes, except when under power. You are a powerboat if your engine is on, even if your sails are up. Other exceptions to the sailboat's right of way include: The other vessel is not under command, the other vessel is restricted in her ability to maneuver, or the other vessel is engaged in fishing.

Shea's Rules of the Road
Rule # 1 — Stay away from all other vessels, sandbars, docks, piers, bridges, abutments, and high and dry land.
Rule # 2 —When in doubt, refer to Rule # 1.

Capt. J. Michael Shea is a maritime attorney in Tampa, FL, and holds a masters and harbor pilot's license. He has coauthored law books in the maritime field and writes articles on maritime law.