I want to take some time and educate my readers on “proper lookout” and the obligations that accompany this essential boat operator responsibility. In fact, “Proper Lookout” is RULE 5 in the 72 COLREGS or International Regulations for Preventing Collisions at Sea 1972.
For those readers that may be new to boating, the International Regulations for Preventing Collisions at Sea 1972 (COLREGS) are published by the International Maritime Organization (IMO) and provide a set of navigation rules to prevent collisions at sea. The navigation rules, referred to as the "rules of the road" provide information and direction that all vessels and operators must understand and follow while at sea.
The latest set of rules have been around since November 1989 and these rules are published by the United States Coast Guard. In fact, one of the 4 exams for an OUVP License (first level small boat / recreational captain’s license) is dedicated to the Rules of the Road. Its 30 questions and you must score a proficiency of 90% or better to pass.
RULE 5 is one of the more short, sweet and to the point rules. In fact, it is just once sentence. Sometimes and unfortunately, rules that are simply stated can leave readers with different interpretations. Therefore, I want to spend some time talking about RULE 5.
RULE 5 – LOOK OUT
Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.
First, let me dissect the rule a little bit to help the reader better understand and appropriately apply the rule.
“Every vessel…”
Every vessel means “every vessel.” Whether your boat is Royal Caribbean’s Symphony of the Seas (currently the largest ship in the world), sea plane or a kayak, this rule applies to every vessel when navigating on all U.S. rivers, great lakes, inland, costal and international waters.
“[…] shall at all times…”
“Shall at all times…” means 24-hours a day; 7-days a week, 365-days a year; this rule applies. Day or night; manned or unmanned; moored, anchored, or on way; contained, restricted in maneuverability; and yes, even if the vessel is moored or anchored, not under control e.g. just drifting because you’re not anchored and your engine doesn’t work; or, you have to pull anchor watch overnight on a boat with one soul on board (meaning you)… You must at all times provide a proper lookout.
I realize this sounds unreasonable; and you’re right, it does… But before I get into the details, let me finish my dissection.
“[…] by sight and hearing as well…”
Sight and sound should be obvious, right? You need to be looking all around! Yes, you should be looking 360-degrees in all directions. You should be listening all around. You must look and listen all around for the purpose of assessing a risk of collision.
Licensed Captains, have you ever wondered why we must submit to a Coast Guard medical physical examination? For those that are not familiar with Coast Guard licenses and endorsements; every initial application for Coast Guard License, along with every re-rating, renewal and added endorsement application, the license holder must submit their current medical physical examination as part of the application process. Additionally, every 5 years, license holders must undergo an updated medical physical examination. If you don’t pass the medical and physical examination (this includes an eye and hearing exams) you will not be granted a license, renewal or added endorsement.
“[…] as by all available means appropriate…”
All available means appropriate means; if something is at your disposal (when applicable and appropriate) you are REQUIRED to use it. For example; the most common items that may come to mind are a person’s eyes, ears, GPS positioning devices, chart plotters, radar and paper charts.
But if you think about it, there are many more items that are used or could be used such as binoculars, monocular, VHF radio, autopilot system, fish finders and sonar, horns, bells, gongs, lights, infrared devices, sea anchors etc.
In the most basic understanding, if the device helps you see, be seen, hear, be heard, steer, make way, stop, navigate, etc. to assist in avoiding a collision; basically, if you have something that would have helped you avoid a collision; then, you are required to use it as part of looking out for the purpose of assessing a risk of collision.
“[…] in the prevailing circumstances and conditions…”
“[…] in the prevailing conditions…” means in conditions that may be related to circumstances such as poor navigability (e.g. engine trouble, anchored/moored, close quarters, swells, waves, wakes) or you only have one person or no persons on board), no distractions or impairments (such as cell phones, people and alcohol); and conditions, such as poor visibility (e.g. night, fog, heavy rain, blinding lights, direct sunlight). Regardless of the situation, circumstances or conditions, you must provide proper lookout for the purpose of assessing a risk of collision.
The purpose of RULE 5’s one-sentence is not to make it ambiguous for lack of interpretation, it’s to make it indistinct so many interpretations can be applied and consequently hold accountable.
Think of RULE 5 as the “you have no-defense not providing a lookout by using any and all methods or devices and under any and all circumstances and conditions” rule.
Sound unreasonable? Yep, and I understand; but, the IMO and the maritime industry takes the job of avoiding collisions very seriously; hence RULE 5.
In fact, if you moored your boat in a mooring field, disembarked and left no souls on board, you could (according to some maritime legal experts) retain a minimum of 5% fault if a collision were to occur with your moored vessel. Why? You are required “at all times” to provide a lookout, Yes, this rule may read unreasonable and unfair; however, collision investigation experts do consider special circumstances such as a collision with an anchored or moored vessel that takes place in a mooring field, anchorage field or marina and they do consider circumstances surrounding recreational vessels.
The point that recreational boaters and non-merchant marine Captains must understand is that you are required to provide lookout.
QUESTION: Captain Eric; how can I retain a 360-degree view of sight and sound, navigate a boat, tend to passengers, etc. etc. etc. when it’s just me operating the boat?
ANSWER: In your safety briefing, explain to passengers that everyone is responsible for being a lookout. If anyone sees or hears something that could lead to a possible collision, they can yell to get your attention or come tell you.
Having “passenger lookout responsibilities” on your safety briefing will go a long way in the event you are faced with dealing with a collision event. While you might not get off completely unscathed, having others assigned the responsibility for looking out may lessen your percentage of fault and liability.
To be extra clear; the risk of collision extends beyond a vessel-to-vessel collision. Risk of collision includes things floating in the water (buoys, debris, anchored/moored boats), structures (navigation aids, docks, bridges, jetties), wildlife (manatees, turtles, whales), people (swimmers, divers), land (shoaling, shallows) etc.
Here are the top-10 causes for accidents (according to the Coast Guard). And remember, accidents are only required to be reported to the Coast Guard if the assessed damage is over $2,000.00 (or more), person injury or death.
1. Operator Inattention (distractions, distractions, distractions)
2. Improper Lookout
3. Operator Inexperience
4. Excessive Speed
5. Alcohol Use
6. Machinery Failure
7. Navigational Rules Violations
8. Hazardous Waters
9. Weather
10. Wakes/Waves
When I read and study maritime accidents the Coast Guard investigation team often cites at least one party the “failure to provide proper lookout” rule. Not only does the violation better assign liability, it can support a larger percentage of fault. Additionally, violating RULE 5 carries a maximum fine of $6,500.00.
Bottom line, RULE 5 requires:
· All vessels to maintain adequate watch-keeping and manning…
· At all times
· By sight and hearing
· By all available means appropriate
· In the prevailing circumstances and conditions
Now, let me take proper lookout in a different direction.
I am following a case filed in Pinellas County, Florida regarding a bare-boat charter that resulted with two fatalities where a passenger was jumping from a yacht into the water and the current and weather conditions swept the victim and a crew member who went in after him out to sea.
Case Number 17-007026-CI in Pinellas County Court.
One of the plaintiff’s arguments is that the bare-boat charter Captain did not maintain proper lookout for his passengers as they jumped off and swam around the yacht; and therefore, the Captain is liable for civil damages.
It is important to point out that the Coast Guard has not released any findings from its investigation until the outcome of this court case concludes.
Currently, there are no criminal charges filed against the Captain, boat owner or boat charter broker/company.
PROVIDING PROPER LOOKOUT WHEN ON CHARTER
This portion of my blog is for my fellow charter Captains.
One of the main reasons why I am following the case referenced above is to learn the fate of the bare-boat charter Captain.
Is the Captain liable for the death of this passenger?
The current defendant’s (Captain‘s) argument is that the boat owner (not the Captain) is responsible and therefore not liable. This is a very common misunderstanding.
Additionally, the case I am following involves a demise (bare boat) charter agreement where the charterer is now the de facto owner for the duration of the agreement; and therefore, the charterer (not the actual boat owner) is liable for two common and falsely assumed assumptions:
1) You can’t sue Captains as the boat owner is ultimately responsible in civil litigation.
2). When an incident occurs while the boat is under a properly executed demise (bare boat) charter agreement, the charterer, who is now the de facto owner for the duration of the bare boat charter agreeement is the one that assumes all liability; and the Captain is exempt from litigation because the charterer was the one the hired the Captain and crew.
WRONG WRONG WRONG. This is common defensive and legal assumption for many that operate in the world of bare boat charters.
In the little world I live and operate in, nearly every person who charters a boat under a bare boat charter agreement has no idea, or at best a limited idea of what they are actually signing; meaning the bare boat charter agreement.
That alone would complicate the legality of bare boat charter agreement. In addition, the Coast Guard can easily dissect this lack of understanding and challenge key components required for a bare boat charter to be considered properly executed.
Once the Coast Guard nullifies the agreement, the actual owner (not the charterer) becomes liable along with a list of additional violations (especially if there are more than 6 passengers on board).
For more information about bare boat charters you can read my blog entry about demise charters.
I realized I have gone off topic. The point I am trying to make is that Captains, owners and de facto owners can all be held liable in civil litigation.
Specifically, Captains can and are typically held liable when the reason for the damage, injury or death is directly related to the following:
Safe operation of the boat
The safe navigation of the boat
Load limits of the boat.
My key interest in the case I am following is how far does “safe operation of the boat” reach.
Passengers on a boat have a duty to exercise care for their own safety; meaning, they have some responsibility for their own safety. A boat passenger cannot simply do as they please blindly about and around a boat. In laymen’s terms were talking about general common sense.
HOWEVER
As Captain, you have a duty to provide reasonable care; and part of the care is communicating safety information and a duty to warn.
Professionals are the individuals that have education, training, certifications, licenses and experience that makes them “professional!”
Professionalism (being the professional) is the argument that is most often used by plaintiff’s legal representation (lawyers) in negligence cases.
A lay person doesn’t know any better. Therefore, the professional should know better and why professionals most of the time are found to be negligent either completely or in part.
No matter how you slice it… In the court of law or court of public opinion, as Captain, you are the one with all the maritime education, training and experience; and, you (as Captain) have a duty to provide reasonable care (because you DO know better).
BUT
Does reasonable care mean that you may be held accountable if you fail to warn a passenger?
That is the question I am wanting an answer to and why I am waiting on the outcome of this court case. Some judges have ruled that the duty to warn is not imposed when you have an open and obvious condition. Meaning, a passenger is under a standard of reasonable care to themselves and would/should be reasonably able to see and understand an obvious hazard.
In the case that I am following… How would vacationing Chinese international exchange students from Colorado celebrating Spring Break know the dangers of tide, current and the effects of weather on marine the environment?
They wouldn’t.
However, the Captain’s legal defense is arguing that the Captain fulfilled his safe operation of the boat by way of his duty to warn by instructing passengers not to jump off the yacht.
In reviewing witness documents, the deceased jumped in at least three times, which (in my humble opinion) suggests that the Captain (and or crew) knew about the jumping off; and by failing to address the passenger jumping off the yacht the first time, the Captain’s lack of action was in fact, an assumed approval.
However, did the Captain meet the duty to warn by briefing passengers to swim at their own risk or inform them that the waters in their anchored location were known for swift currents and rip tides?
Now; it now becomes a he-said-they-said case.
When I am captaining a charter, I bring a paper copy of my safety briefing (and I have a backup digital copy on my phone). I carry my safety briefing in the event my duty to provide reasonable care is questioned. If questioned, I would simply produce my physical copy of the safety briefing. It would be difficult for Chinese exchange students from Colorado to deny that I warned them about the dangers of swimming when I have “Dangers of Swimming” listed on my safety briefing.
If you don’t have a Safety briefing on your boat already, as Captain, you should always carry one with you.
Even if you have a signed blanket liability statement, a judge may find that a failure to provide reasonable care including a duty to warn negates or partially negates any signed liability statement.
Be safe and LOOKOUT!
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