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Messenger has managed to do exactly what i cautioned against doing in my previous post. He is incorrect.
First, "making way" is not defined in the rules and is irrelevant to the rules application, with the exception of what lights are displayed to indicate status. The showing of sidelights while NUC and making way is, in essence, an advisory signal, and in no way changes the vessel's NUC status or privelage. The only recognized conditions are "underway" or "anchored, made fast to the shore, or aground".
The definition of "not under command" is not dependent upon the vessel NUC ability to display the proper lights/shapes to indicate same. "Signals to attract attention" will suffice to indicate such NUC status. Vessels less than 12 meters LOA are not required to display such signals, but may.
Not under command is: "a vessel which through some exceptional circumstance is unable to maneuver as required by these Rules and is therefore unable to keep out of the way of another vessel."
"exceptional" is defined by the dictionary as 'not ordinary or average'.
The Rules express no degrees of not under command, only "exceptional" or out of ordinary. Common sense dictates that hove-to or adrift is not an ordinary condition of vessels. A reading of the fishing/trawling rules may better illuminate the concept.
Furhtermore, Rule 13 addresses, in part, overtaking: (c) When a vesel is in any doubt as to whether she is overtaking another, she shall assume that this is the case and act accordingly. (d)Any subsequent alteration of the bearing between the tow vessels shall not make the overtaking vessel a crossing vessel within the meaning of these Rules or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.
The mere fact that his vessel is hove-to makes his vessel not under command, regardless if he is at the helm or doing his business overboard. He is as "unable to manoeuver as required" as he would be if he were sailing at 5 knots thru the water against a 6 knot current. It is condition of the vessel, not condition of the crew, that determines NUC.
Messenger's last sentences are a bit of a red herring as well. Ships in crossing situations go NUC all the time. By defintion, the situation would then become either an overtaking one or a meeting one. In either case, the other vesel would be required to stand clear due to the change in status of the vessel now hove-to (for whatever reason).
This is in no way meant as an attack on Messenger, but merely an attempt to reinforce my earlier point, amply backed by Boasun, another professional mariner, that the Rules are only what they say they are, and what you think they are or should be is not germaine. An EXTREMELY careful and narrow reading of the Rules is necessary for a proper understanding of them. They are not meant to be expansive, flexible, or subject to interpretation.
For a comprehensive examination of the Rules I would recommend, "Farwell's Rules of the Nautical Road" published by the US Naval Institute Press. The volume lists the rules, their explanations, and how the courts have ruled in countless Admiralty cases.
In describing Rule 2, old Rule 27, commonly called the Special Circumstances Rule or General Prudential Rule no less than the US Supreme Court has said, "Exceptions to the International Rules, provided for by this rule, should be admitted with great caution, and only when imperitively required by the particular circumstances. Therefore under all ordinary circumstances, a vessel discharges her full duty and obligations to another by a faithful and literal observance of these rules."
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