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post #177 of Old 09-26-2012
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Re: Is sleeping OK?

Originally Posted by Brewgyver View Post
What's REALLY interesting is that the Rules DO seem to REQUIRE it's use:

USCG Navigation Rules Online

By any reasonable definition, "Operational" meand in normal working order, not whether or not the equipment is turned on. That would be "Operating", not "Operational."
What you've cited is THE LAW, the problem is that laws are open to interpretation, enter the role of the judge and case law. This is where Lawyers get the big bucks, because even though THE LAW is usually availble for us to read, the case law interpretations of it are what actually matter. Here is what the judge wrote about the fact that the container ship EXPRESS did not have her radar in use when it ran down the sailboat CAMERA:

Skip to the end for the good bits (emphasis added by me):
From the link here posed by Jackdale (it's a long read but VERY informative)


Plaintiff also contends that the EXPRESS should be held in fault for failure to post the lookout on the bow rather than on the wings of the bridge; and for failure to have the radar in full operation at all times. I am not persuaded by either of these contentions.

Rule 5 requires the maintenance of "a proper lookout"; his positioning on the vessel is not specifically addressed. There is authority in the earlier cases for the proposition that a lookout should be posted in the bow, "especially if the visibility is poor," United States v. The Adrastus, 190 F.2d 883, 886 (2d Cir. 1951). But the rule is not hard and fast.The Second Circuit has approved the posting of a lookout in the wheel house, at least in respect of tugs, Moran Towing & Transportation Co. Inc. v. The City of New York, 620 F.2d 356, 357 n.1 (1980), having accepted testimony "that the lookout's station in the wheel house provided the best view and allowed the lookout to communicate easily with the mate." In the case at bar, defendants' expert witness Warren Harday, who has sailed as master on container ships such as the EXPRESS, testified that in clear visibility it is the practice on such vessels to post the lookout on the wings of the bridge rather than on the bow. The bow is obscured from the bridge by containers stowed on deck. In consequence the watch officer on the bridge cannot observe the lookout on the bow to ensure his attentiveness, or that he has not been injured by sudden swells. A lookout stationed on the bridge wing may be more closely supervised. He is also able to report immediately to the watch officer. Captain Jacobsen gave comparable testimony. Plaintiff offered no contrary expert evidence. While I recognize that in some circumstances evidence of a practice is nothing more than evidence of a negligent practice, I conclude in this case that a container ship with her bridge located aft and the bow obscured by containers, proceeding in uncongested waters on a clear night, does not violate Rule 5 by posting a lookout on the bridge wings rather than on the bow.

I also reject plaintiff's contention that the EXPRESS must be condemned for failing to have her radar switched on during the evening in question.To reiterate: the EXPRESS was sailing in the open ocean on a clear night. Plaintiff cites no case requiring use of radar in such circumstances. My own research discloses none. The Fourth Circuit reached a contrary conclusion in British Transport Commission v. United States, supra. The district judge in that case rejected a contention that failure to use radar on a clear night constituted fault because it would have revealed the other vessel's existence.The district judge wrote:

"But [the mate] was not looking for anything to starboard; he had no reason to go to the radar to search in any direction. His failure to see the Duke [the other vessel] was not negligence, for it was not the result of neglect of an obligation. No obscurity obligated him to use his radar, and there was nothing else to put him on notice of any need or it."

The Fourth Circuit quoted this language with approval. 230 F.2d at 142.

In Afran Transport Co. v. The Bergechief, 274 F.2d 469, 474 (2d Cir. 1960), Judge Medina stated generally: "If a vessel carries properly functioning radar equipment and she is in or approaching an area of known poor visibility, there is an affirmative duty to use the radar." British Transport Commission v. United States is one of the cases cited for that proposition in Afran Transport. It seems fair to assume that the Second Circuit would not condemn a vessel for failing to use her radar in uncongested waters and clear visibility. Certainly the Second Circuit has never done so. Plaintiff relies upon Rule 7(b), which specifies that "[p]roper use shall be made of radar equipment if fitted and operational," *fn6" but this rule, enacted as part of a revision of the rules preventing collisions in 1977, does not in my view change the result. Propriety does not require use of the radar in circumstances such as these. Indeed, it may be imprudent to run the radar at all times. I may judicially notice, Fed. Rule of Evid. 201(b), that the service lives of radar sets (like all appliances) are finite.Indiscriminate use may cause the radar to fail when it is most needed.

In short, I conclude that absent circumstances indicating that radar may give information useful for safe navigation and not otherwise available, there is no obligation to keep the radar fully activated. Keeping the radar on standby while underway is, of course, a prudent procedure.

While I reject plaintiff's claims that the EXPRESS should be held in fault for positioning of the lookout and failure to use radar, the EXPRESS must nonetheless be condemned for failure to maintain a proper and attentive lookout.

Fault on the Part of the CAMERA

I have a sauna on my boat, therefore I win.
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