MAIB Report Red Falcon and Phoenix collision

[ProMariner]

Red Funnel have always had a reputation for cutting it fine, I have always found their boat handling to be excellent. I was once off the mouth of the Itchen, when I witnessed, due to various timetable disruptions, 2 Redjets and 2 of the bigger ones, all passing 2 per direction, in a line of 4 across the channel, all at operating speed, just off the VTS building, where the southampton water channel is not generous. Breathtaking, I don't know how they manage in these waters without more problems, hats off.

 

[RichardS]

Do you not find a blame culture gets in the way of learning, or progress? If the MAIB declines to apportion blame, but to find reasons, who are we to know better?

The MAIB has not declined to apportion blame ... it is simply not in its terms of reference to apportion blame. I fully accept that that is a good approach for the MAIB to take but we are not the MAIB so we can do whatever we like .... and still take away all the learning points and make unhindered progress.

Several forumites have been prepared to stick their head above the parapet and allocate blame. This is just an internet forum, after all.

Richard

 

[GHA]

Do you not find a blame culture gets in the way of learning, or progress?

Personally, yes. Mostly down to personalities and changes nothing back out there in the real world, who cares who was 'more' wrong, don't be a bit wrong and chances are nothing will happen. . But here we are on a web forum which isn't much like the real world so hey ho.

Upside is amongst the huffing and puffing online you get to dig a bit deeper into the rules which is a good thing either as a refresher or just a dig deeper. Every day's a school day.

 

[Mark-1]

Upside is amongst the huffing and puffing online you get to dig a bit deeper into the rules which is a good thing either as a refresher or just a dig deeper. Every day's a school day.

+1

 

[ProMariner]

Don't know if this link will work:

https://assets.publishing.service.g...loads/attachment_data/file/281965/msn1781.pdf

In case anyone wants to actually read the colregs, in pure form.

 

[AntarcticPilot]

Do you not find a blame culture gets in the way of learning, or progress?

In general I agree. However, it can't always happen. I worked in an organization that for a long time operated a "no blame" reporting system for acidents, incidents and near misses. The reporting form clearly stated that those who reported things would not be held to blame. This all changed when there was a realization that some things couldn't legally be held to be no blame - it included negligence. The wording was changed to something like "No blame will be allocated UNLESS ...." I forget the trigger for the changed wording; most likely an external audit of some kind. But the point is that some things attract blame whether we like it or not. I'd guess that failures under ColRegs, especially ones arising from negligence, simply cannot avoid blame, and the MCA will probably be looking at the case very carefully.

 

[GHA]

Don't know if this link will work:

https://assets.publishing.service.g...loads/attachment_data/file/281965/msn1781.pdf

In case anyone wants to actually read the colregs, in pure form.

Or an elderly Cockcroft >

http://the-eye.eu/public/WorldTrack...ision Avoidance Rules Guide (6th Edition).pdf

 

[Skylark]

Several forumites have been prepared to stick their head above the parapet and allocate blame. This is just an internet forum, after all.
Richard

There have certainly been a number of "expert witnesses" posting their opinion.

There may even be some 10m MoBo owners with 17 years experience of The Solent, lacking awareness of the ColRegs or Soton Harbour regs, happy to enter an otherwise extremely well known channel at an acute angle without keeping a proper lookout.

Come to think of it, sticking his head above the parapet may have improved his all-round vision

 

[jfm]

I don't have time to engage fully in the debate but would just like to throw in an important point on restricted visibility which is that it is not a feature that can pertain to a person or a ship. It is very clear from rule 19 that RV is a feature that can only apply to an "area". The test is not whether someone's visibility is restricted; it is whether the ship is in or near an area of restricted visibility. Therefore dirty windows or dropped bobble hat or bag over head can never invoke rule 19 because they are features only of a person or a ship. Only something like fog or smoke can invoke 19.

This doesn't answer the Q of whether sun invokes rule 19, but it does kick out a lot of analogies put forward in this thread. I don't think low sun invokes 19 but it would take a long time to explain why (and is based upon rules of law about how you interpret the wording of law, which is a specialist topic that hasn't been brought into this debate but actually should be the main event here).

And I'll just mention my oft-repeated complaint: Colregs is one of the worst drafted pieces of law ever made by mankind. It is full of ambiguities. A real 2-out of 10 piece of prose. We mostly don't crash our boats despite it, not because of it.

 

[Mark-1]

It is very clear from rule 19 that RV is a feature that can only apply to an "area". The test is not whether someone's visibility is restricted; it is whether the ship is in or near an area of restricted visibility.

Good spot, hidden in plain sight (from me anyway). That's pretty conclusive regarding the analogies. If a bobblehat gets stuck over your eyes then either you break Rules 11-18 because you can't comply with them, or Rule 18 applies. (Or something else.) I'd love to know if a 'completely unsighted boat that's not in or near an area of restricted visibility' happened and made it to court.

This doesn't answer the Q of whether sun invokes rule 19, but it does kick out a lot of analogies put forward in this thread. I don't think low sun invokes 19 but it would take a long time to explain why (and is based upon rules of law about how you interpret the wording of law, which is a specialist topic that hasn't been brought into this debate but actually should be the main event here).

Although the analogies themselves are quite interesting.

Feels/felt to me like the Sunlight/Restricted Visibility question is more a meteorology question than a Colregs question. If vision *can* be obscured by sun to the point that an area of restricted visibility is created then it feels like it ought to qualify, the objections to that seem to be based on the not being possible. I appreciate that conflicts with your view and you clearly know a lot more about interpreting law than me. (Which is nothing.)

And I'll just mention my oft-repeated complaint: Colregs is one of the worst drafted pieces of law ever made by mankind. It is full of ambiguities. A real 2-out of 10 piece of prose. We mostly don't crash our boats despite it, not because of it.

I share your frustration that the IRPCS. I'm sure I've seen the wording described as "weasel words" and that's how if feels to me. In the defence of the authors a lot of the things they fudge and leave undefined are quite clearly fudged because they really couldn't do otherwise. The use of 'Apparent' in Rule 17 always seems a good example. On the one hand they can't say 'Do what you like if it seems like there's a chance the other guy might not have seen you." on the other hand they can't say "Stand on until collision is inevitable.". So they hinge it on a word that has at least two contradictory meanings.

Always make me chuckle when people claim the IRPCS are straightforward in the middle of 500 post Colregs squabbles . If they were straightforward there wouldn't be an argument about it.

Thanks for taking the trouble to contribute, one of the more useful posts.

 

[capnsensible]

The rules are simple and straightforward. Thats why there are a tiny, tiny ammount of crashes. even by people who dont really know them.

They are only difficult for lawyers, pedants, squabblers and ambulance chasers picking over the carcase of human mistakes. Follow the money.

Oh and keep a good all round lookout.

 

[Mark-1]

The rules are simple and straightforward.

Which is why nobody ever disagrees about them and no court has even had to make a decision about them and why nobody could write a massive expensive book explaining them with endless references to incomplete case law.

Thats why there are a tiny, tiny ammount of crashes.

False cause fallacy.

Socks protect you from attack by Rhino. I can prove it - I've never been attacked by a Rhino and I wear socks almost all the time.

In the case of Rule 17 I suspect the reason we aren't all in regular close quarters situations with ships when we're stand on vessel is because we all interpret it in such a way as to allow us to give them a wide berth while they're still miles off. We know we ought to stand on a bit, but not too much: Nobody gives way way before they think they need to, and nobody stands on to a point where they think they're taking a big chance. We aren't following the rule we're just doing what 'feels' right. Without Rule 17 we'd do exactly the same.

 

[capnsensible]

False cause fallacy.

Socks protect you from attack by Rhino. I can prove it - I've never been attacked by a Rhino and I wear socks almost all the time.

.

Nothing to do with it Mark. There are no rules about wearing socks near Rhinos.

If there were and a Rhino/sock or no sock accident happened you can bet that on the Socks and Rhinos forum there would be a heated debate about who was wrong, the Rhino or the sock wearer. Blame would be heaped, sock colour discussed and Rhino antics disected.

Some of the loudest will probably never have gone socked or sockless in the vicinity of a real live Rhino.

And in court, lawyers would get very excited about Horns, footwear and distance to animal in order to out smart each other.

In the meantime, the Rhino goes back to contemplating Rhino things and the sock wearer gets a new less confrontational pair.

 

[lw395]

Colregs are IRPCAS
That's rules for the prevention of collision
Not rules for the apportioning of blame afterwards.
If you collide, generally both parties are in the wrong.
AFAIK, the rules don't offer a hierarchy of who is more in the wrong?

I think, if an incident goes to court, then the case is about national law and byelaws more than colregs?

 

[RichardS]

They are only difficult for lawyers, pedants, squabblers and ambulance chasers picking over the carcase of human mistakes. Follow the money.

Well that certainly excludes me 'cos I've never had any difficulty with them ... which is a bit embarrassing because I thought that I was a pretty sharp lawyer.

Richard

 

[oldharry]

Colregs are IRPCAS
That's rules for the prevention of collision
Not rules for the apportioning of blame afterwards.

I think, if an incident goes to court, then the case is about national law and byelaws more than colregs?

IRPCAS and Colregs are there to prevent collisions from happening in the first place.

In UK, MAIB is there to find out what went wrong and why, while the courts apportion blame and costs, and hand out any appropriate punishment. The latter will depend largely if not entirely on national law and byelaw.

 

[Mark-1]

I think, if an incident goes to court, then the case is about national law and byelaws more than colregs?

That's not my take. The cases referred to in Cockcroft & Lameijer seem to me to be cases that clarify colregs and are typically cases where courts are deciding (say) insurance liability by interpreting the meaning of the colregs in reference to a disputed incident and thus assigning liablity. (...I assume once the Court has interpreted the rule that becomes the defacto Colreg until an higher court decides something else, but I have no idea how these things work.) For instance, have a look at the Rule five section in the pdf of the old C+L posted above. It's full of court cases clarifying Rule 5, you can see from the context that they are very likely to be courts sorting out insurance disputes related to blame.

I'm sure incidents involving local bylaws and national law also go to court but they don't really help in sorting out Colregs, C+L specifically provide a "Guide to the Collision Avoidance Rules", not a guide to local bylaws.

Not rules for the apportioning of blame afterwards.

Pretty sure they are used in that function - I doubt every collision at sea that results in an insurance claim goes exactly 50/50 in which case the col regs must a big part of the criteria used to decide who got it most wrong and which insurer pays most.



Someone who really knows how the IRPCS work will correct me, I'm sure.

 

[jfm]

Colregs are IRPCAS
That's rules for the prevention of collision
Not rules for the apportioning of blame afterwards.
If you collide, generally both parties are in the wrong.
AFAIK, the rules don't offer a hierarchy of who is more in the wrong?

I think, if an incident goes to court, then the case is about national law and byelaws more than colregs?

I disagree virtually every word of that. Colregs are imported (cut pasted so to speak) into Uk national law. And they do serve as a big part of the basis for apportioning blame x%~y%, or guilty / not guilty of manslaughter in Uk law.

Just to clear, those are two separate things. First, breaching colregs is an offence in Uk law and MCA is a direct prosecuting authority for this, not the CPS. They dont pursue small breaches as a matter of policy. Second, colregs form the basis of settling financial liability in collisions etc and as said above there is plenty of case law on that.

By the way, if hypothetically someone had died here the ferry captain would be talking to a manslaughter lawyer, not the doral guy, imho. That’s how I see the blame.

 

[Uricanejack]

In general I agree. However, it can't always happen. I worked in an organization that for a long time operated a "no blame" reporting system for acidents, incidents and near misses. The reporting form clearly stated that those who reported things would not be held to blame. This all changed when there was a realization that some things couldn't legally be held to be no blame - it included negligence. The wording was changed to something like "No blame will be allocated UNLESS ...." I forget the trigger for the changed wording; most likely an external audit of some kind. But the point is that some things attract blame whether we like it or not. I'd guess that failures under ColRegs, especially ones arising from negligence, simply cannot avoid blame, and the MCA will probably be looking at the case very carefully.

Very much how I see it. Blame does little to prevent accidents.

For accident prevention a purely "no blame" system doesn't work. The term we are currently using is a "Just Culture" instead of a "No Blame culture". There are occasions where accountability has to apply. Where The accident occurred due to someone actions or inaction having been willful or deliberate.
We still use a "No Blame" investigation to determine what happened and what we can change to help prevent it happening again. Leaving any questions of culpability for a separate process.
Even with this provision I have often argued it is better to leave most infractions alone. In order to encourage open and full disclosure. Which is of much more use than punishment.

Our process is based on the AAIB, MAIB, NTSB, TSB and similar organisations.
The MAIB investigation is privileged report cant be used as evidence.

Be interesting to see how the MCA responds.

 

[Uricanejack]

I disagree virtually every word of that. Colregs are imported (cut pasted so to speak) into Uk national law. And they do serve as a big part of the basis for apportioning blame x%~y%, or guilty / not guilty of manslaughter in Uk law.

Just to clear, those are two separate things. First, breaching colregs is an offence in Uk law and MCA is a direct prosecuting authority for this, not the CPS. They dont pursue small breaches as a matter of policy. Second, colregs form the basis of settling financial liability in collisions etc and as said above there is plenty of case law on that.

By the way, if hypothetically someone had died here the ferry captain would be talking to a manslaughter lawyer, not the doral guy, imho. That’s how I see the blame.

I don't look at the Colregs from a strictly legal perspective. I look at them as a set of rules providing practical guidance to help prevent collisions at sea. Rather than commandments carved in stone.
If understood and followed by 1 vessel the 1 vessel should be safe.

I do understand they are Law and are enforceable violation being an offence. This is less important than the practicality.
If some one had died in this incident. It would be very different.