They’re back!  And even earlier than expected.

As the air and water temperatures begin their steady climb upwards with each passing day as we move towards the late spring and early summer, recreational boaters are prepping their power boats, sailboats, canoes, kayaks and jet skis for the season. In fact with this year’s mild winter weather, many of these vessels are appearing even earlier than normal on the nation’s waterways. And while that fact might be exciting to the recreational boaters who are looking forward to an extended season, professional mariners who work those same harbors, rivers, sounds, bays and lakes need to be extra vigilant as they compete for space and safe passage for their oversized vessels.

One pretty safe assumption to make is that many of those operating these private pleasure craft and various non-motorized boats are not well-versed in the marine Rules of the Road that professional mariners operate under. The result?  A wide array of marine incidents from collisions, allisions, capsizes, groundings, wake damage and many, many more near misses. And what’s almost certain is that when a professional mariner gets involved in an incident with a recreational boater, the authorities will be predisposed to find fault with the professional mariner “who should have known better.”  And if the Coast Guard investigators believe a message needs to be sent to its licenseholders involved in one of those incidents, charges of negligence leading to suspension and revocation (S&R) proceedings are a distinct possibility.

Our MOPS claim files tell the tales of many of these “David vs. Goliath” type incidents between recreational boaters and professional mariners, and, sadly, many impacted mariners believe they are placed in a “guilty-until-proven-innocent” posture when defending their actions.

Not Ferry Good

A quick review of a fairly typical encounter between a commercial vessel and a pair of sailboats in a popular waterway fronting a picturesque New England town illustrates the uphill battle a professional mariner and his or her attorney have when things go wrong.

The master of a high-speed catamaran-style ferry was plying his course westbound across the bay with a full load of passengers when he spotted two sailboats off his port bow in parallel courses preparing to cross under the suspension bridge spanning the bay.  Both sailboats were proceeding north, crossing his bow from port to starboard. He continued west on his trackline to take their sterns well clear of his vessel.  Suddenly, sailboat #1 which was about 200 yards ahead at this point, jibed back across his bow 180° to the south.  Recognizing the change in conditions, the ferry’s captain came to starboard to take the stern of sailboat #1 which had reversed course.  As sailboat #2 maintained its northerly course, he came to port to take its stern.  When only about 80 yards separated the ferry from sailboat #2, it jibed, coming hard about to port, approximately 180°-200° off its previous northerly track.

When he saw sailboat #2 turning to an impeding course, at one point bow on to the ferry, the captain went hard to port while simultaneously taking the ferry out of gear and dropping astern to reverse power. That evasive action notwithstanding, the ferry was still making slight headway.  The cat’s captain then grabbed the hailer and repeatedly warned the skipper of sailboat #2 to “tack away”.  He got no response and the sailboat made contact with the high-speed catamaran as she was backing full. The sailboat struck the ferry on its starboard side bow, damaging its mast and fiberglass hull.  The ferry captain immediately reported the incident, and the Coast Guard promptly responded and towed the powerless sailboat #2 into port.  Marine Casualty Incident Reports (2692) were completed and submitted by the ferry’s Master with the assistance of his assigned maritime attorney who had been contacted minutes after the incident and was waiting on the dock when the ferry landed. 

U.S.C.G.’s Hobson Choice

Four months later, the ferry captain received a “Warning in lieu of Suspension & Revocation” letter from the Coast Guard for a violation of Law or Regulation (46CFR 5.33), i.e. “while serving as operator of said vessel, you failed to adhere to Inland Navigation Rule 18 by failing to keep out of the way of a sailing vessel while underway.”

The captain’s MOPS attorney had earlier requested the Marine Safety Officer’s (MSO) file of the incident via the Freedom of Information Act (FOIA), but had not received same before receipt of the U.S.C.G.’s complaint. After discussing the pros and cons of accepting the proposed Letter of Warning (LOW) sanction (and earlier being denied the opportunity to make further protestations when the 2692 was submitted), both the professional mariner and his attorney decided to accept the LOW rather than take the chance of losing an argument before an Administrative Law Judge over what constitutes a “safe speed” and getting a more severe penalty including a significant license suspension.

Prevention Is Safest Course

There’s no moral or happy ending to cases like the one described above, just like there’s no avoiding competing for space with the recreational boaters who are currently peeling the vinyl or removing the tarps from their vessels as they prepare to launch. The cold, hard lesson to remember is that when there are encounters between commercial vessels and pleasure craft, the professional mariner will always be held to a higher standard of care.

So, proceed with extra caution.