By John K. Fulweiler
Do the Rules of the Road work anymore when you’re foiling between marks at 45 miles an hour? Like the forefathers to the Constitution (and leaving originalist theory on the dock), I’m not thinking anyone associated with drafting these Rules conceived we’d be racing these wondrous marvels, or that fast ferries would be blasting between Nantucket and Hyannis at some 30 knots. I love me my monohull, but it’s hard to deny the excitement and IndyCar sensations that spring from watching the America’s Cup catamarans skitter across Bermuda’s waters. And the convenience (and auto lessening) properties of a robust ferry system are awesome. I say more, but first the ol’ Rules of the Road might need a refit.
The Rules of the Road (and I’m referring to both the Inland and International Rules) in conjunction with the United States’ Aids to Navigation system give us mariners a uniform system to navigate safely and avoid collisions. The Rules also define the responsibilities of vessel operators and, in that way, provide a matrix for assigning fault in the event of a casualty. Professional mariners must demonstrate proficiency in the Rules, while the recreational lot should know and understand them. In the event of a casualty, the Rules will almost certainly be referred to in allocating responsibility. As a child of the Seventies, I’m susceptible to seeing the Rules as relatively young in that the International Rules became effective in 1977 with the Inland Rules becoming law in 1983.
Amending the Inland Rules doesn’t seem to be difficult because in 2010 Congress moved these Rules from the U.S. Code into the Regulations, meaning the Coasties can make changes. The International Rules are a different story because they spring out of the International Maritime Organization and, well, my sense is those spinning wheels may turn slower.
At any rate, the rub is what particular Rules might be lagging behind the speed and maneuverability of the modern fleet. If you haven’t taken a look at the Rules recently, do so. I’m never disappointed by flipping through their seemingly simple sounding language to find that there’s some nugget or consideration I hadn’t earlier considered. These are the traffic laws of the oceans blue and worth making certain you’ve considered their mandates on safe speeds, maneuvering, and lights and day shapes. (Remember too, that the maritime law is awfully prickly when it comes to adhering to laws designed to avoid collision. There are certain legal doctrines in the maritime law holding that a violation of a law designed to prevent collisions – no matter how slight – may impose a presumption of fault on the violator which can be very difficult to overcome.)
The principal factors of speed and maneuverability associated with these modern vessel designs are the two things we’ll consider in looking at a rewrite. The Rules impose an ongoing obligation to proceed at a safe speed allowing time to avoid a collision and stop within an appropriate distance. Consideration of amending this Rule (perhaps particularly with respect to inland waters) so as to limit speed may or may not be appropriate. My natural anti-regulatory side flushes in response to speed limits, but should a foiling catamaran be allowed to tack up a bay or sound at forty knots? I don’t know. Is it reasonable to consider that a sailboat with such speed and maneuverability should now be classed as a powerboat? If so, should the Rules speaking to the responsibilities between vessels be amended to change the definition of sailing vessel?
I was watching some interview about these foil designs and setting aside my lack of understanding, the take away was that in a strong current (like a river current) you could “sail” these hulls upriver without wind! If I’ve got this right, it’d seem that the Rules respecting the conduct of vessels in sight of one another might also need editing. Again, is it fair to classify such a miracle-working vessel as a “sailboat”?
And finally, the lights issue is probably worth considering in this era of higher speeds. Currently, the Rules require the display of various navigational lights with a minimum range of typically three miles. That seems a lot, right? But my math shows that at 40 miles per hour, you’ll cover three miles in 3 ¾ minutes which, when we’re talking situational awareness, is not a lot of time. Those several minutes are you telling your buddy about last week’s race or responding to a spouse’s text or otherwise being momentarily distracted. I’d propose that the visibility of navigational lights might need to be increased.
So there it is, my foray into the Rules of the Road as they apply to modern craft. Please let me know what you think. I’m curious whether I’m getting all nervous Nellie or whether any of these issues make sense? In the meantime, I promised my ten-year-old I’d get home early to plan how she can get her Opti on a foil. Apparently, her engineering efforts show it’s no big deal. We’ll see.
Underway and making way.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293), or visit his website at saltwaterlaw.com.
