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Go Back   SailNet Community > General Interest > General Discussion (sailing related) > International Waters....
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Topic Review (Newest First)
10-16-2008 01:23 AM
sailaway21 Cam,
I should first commend bubb2's yeoman work in publishing the Law of the Sea treaty from 1958. If I'd read it here first it would have saved me a fair bit of time in my old International Law textbook! I'd only add that the LOST is currently under debate for revision, a revision that threatens US economic interests, but that's another matter.

I'm aware that I probably did not address your specific question as to the French sailboat in international waters confronting a US warship commanding/advising the boat to change course or exit the area. I believe I've some information that may shed some light on the matter.

First off I should say that there is very little that I've found that addresses private yachts per se. Most of international law revolves around merchant vessels of one sort or another. And it involves vessels "flagged" by their country which implies documentation, something that may not apply to all boats. I doubt that fact detracts from the overall principle of international law though regarding how the vessels are treated on the high seas.

As noted in the LOST of 1958 post, a warship, any warship, has the right to "visit and search" any vessel that meets one of the following criteria:
1) suspected of committing piracy
2) suspected of engaging in slave trading
3) is of the same nationality as the warship
4) as may be authorized by treaty between the nation of the warship and the nation of the vessel.

Posse Comitatus technically does not apply on the high seas regarding US warships and US flagged vessels. That point is somewhat obscured and finessed by either using Coast Guard vessels or CG personnel on naval vessels. Regardless, there is nothing within international law that prohibits a warship from visiting and searching a vessel of the same flag.

Now, as to the specifics of your question re: the French sailboat and US warship.

It's not piracy even if the yacht is boarded or seized. See bubb2's post for definition of piracy on that.

I find no references to any requirement that the yacht must comply with any order given by a warship of another flag. I might add that I was struck anew by how much of international law is devoted to two predominate areas; maritime law and the conduct of war. Makes sense I suppose.

As to our poor French yachtsman confronted with the arrogant forces of either US or Russian naval power I believe the below quote from Law Among Nations, 1976, von Glahn, pretty much addresses the matter and makes plain his options or lack thereof:

"Again, most individuals lack the ability to assert their rights before an international tribunal. As long as this situation prevails, it must be doubted that international law grants real rights to individuals. Only their state can take up their cause, by bringing a suit or by filing a protest or claim with another state. This means that it is the state which possesses an international legal right, not the individual."

As I read it, you may do as you please when confronted with a request or order given by a foreign warship on the high seas subject only to your good sense and, lacking that, your faith that either your navy or your government will prevail in bailing your butt out. I hope the above sheds some light on the matter.

Having said all of that, I should mention that in twenty years at sea I never had issue with a warship of any nation nor heard of any other than the Pueblo or the Mayaguez. I've had countless interogatories as to identity via either flashing light or VHF, and I know of a few "Uniform" 's anecdotally. (Interco "U", "you are standing into danger") And that included a few visits to the former Soviet Union and Israel, two country's notoriously prickly about the formalities.

In my experience, to the extent that there is any interaction between naval vessels and other vessels there is a measure of comity common to all seafarers. I stand by my original post that the OP is merely politically grandstanding without benefit of the relevant facts. He presupposes that the US Navy has either the inclination or the time to just go about ordering vessels out of their "playpen" for no good reason. I've run all three coasts of the US and never encountered anything remotely like that...but then I also made it a practice to stay out of naval exercise areas! I suspect the OP would have been singing a different tune had his acquaintance had a submarine surface underneath him! Everybody knows how arrogant those sub drivers are! (g)
10-14-2008 05:46 PM
bubb2 Cam, about a week after 911, I decided to take the boat down to New York harbor to see what was going on. Just south of GW I was face to face with a GC Cutter. He radioed me that I was to proceed no further. I turned around, but he had a deck gun pointed at me.
10-14-2008 05:08 PM
camaraderie HS....yep...probably a poor choice of words. I will listen closely for the next excercise ship communications and report back the exact phraseology used.
I think that somewhere in Bubb's post above, I am advised that they can command me to do whatever the hell they want me to!
10-14-2008 01:29 PM
RAGTIMEDON Personally I would agree that the U S military, in all of its branches, is a very arrogant organization. However, I thank my lucky stars they are! Timidity did not win World War 1, compliance did not win World War 2, and this country would be vastly different as a subject of the English crown had the continental army of 1776 been Mr Nice Guy! There are too many people in this country who spend time and energy condemning our government, when they would be better served to thank God that we have a government and military which makes it possible to criticize them!
10-14-2008 01:23 PM
Boasun Well the Navy ship could designate you as target #1, if you are refusing to move out of the area. Then as target #1 you could sail where you please...

10-14-2008 12:30 PM
hellosailor Cam?
"is advised that he MUST change course "
Perhaps that is a faulty premise? I mean, I've never had the big gray boats phone me up to discuss the time of day, much less the weather, but would a warship ADVISE ME TO CHANGE COURSE? Or, COMMAND ME to change course?
My recollection is that the warship would ADVISE me, and that means compliance is strongly suggested but in no way COMMANDED OR REQUIRED. (At least, not in your scenario, although IIRC there are currently some large "keep away" zones in effect for US ciitzens and US warships.)

You know, like the old tale of the lights seen in the storm, and the escalating conversation about which of them should change course? Where one stubborn skipper finally says they are an aircraft carrier, get out of the way, and the other one says that's all nice, but they are a LIGHTHOUSE and he really doesn't care what the carrier thinks?
10-14-2008 11:33 AM
bubb2 Heres where the get the right to do as the please, Warships have immunity by the high sea act of the UN.



Convention on the High Seas

The States Parties to this Convention,
DESIRING to codify the rules of international law relating to the high seas,
RECOGNIZING that the United Nations Conference on the Law of the Sea, held at Geneva from 24 February to 27 April 1958, adopted the following provisions as generally declaratory of established principles of international law,
Have agreed as follows:
Article 1
The term "high seas" means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.
Article 2
The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:
(1) Freedom of navigation;
(2) Freedom of fishing;
(3) Freedom to lay submarine cables and pipelines;
(4) Freedom to fly over the high seas.
These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.
Article 3
1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea-coast should have free access to the sea. To this end States situated between the sea and a State having no sea-coast shall by common agreement with the latter, and in conformity with existing international conventions, accord:
(a) To the State having no sea-coast, on a basis of reciprocity, free transit through their territory; and
(b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports.
2. States situated between the sea and a State having no sea-coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea-coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions.
Article 4
Every State, whether coastal or not, has the right to sail ships under its flag on the high seas.
Article 5
1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2. Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
Article 6
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
Article 7
The provisions of the preceding articles do not prejudice the question of ships employed on the official service of an inter-governmental organization flying the flag of the organization.
Article 8
1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
2. For the purposes of these articles, the term "warship" means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.
Article 9
Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.
Article 10
1. Every State shall take such measures for ships under its flag as are necessary to ensure safety at sea with regard inter alia to:
(a) The use of signals, the maintenance of communications and the prevention of collisions;
(b) The manning of ships and labour conditions for crews taking into account the applicable international labour instruments;
(c) The construction, equipment and seaworthiness of ships.
2. In taking such measures each State is required to conform to generally accepted international standards and to take any steps which may be necessary to ensure their observance.
Article 11
1. In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.
Article 12
1. Every State shall require the master of a ship sailing under its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers,
(a) To render assistance to any person found at sea in danger of being lost;
(b) To proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, in so far as such action may reasonably be expected of him;
(c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call.
2. Every coastal State shall promote the establishment and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and where circumstances so require by way of mutual regional arrangements co-operate with neighbouring States for this purpose.
Article 13
Every State shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.
Article 14
All States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.
Article 15
Piracy consists of any of the following acts:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article.
Article 16
The acts of piracy, as defined in article 15, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship.
Article 17
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 15. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.
Article 18
A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.
Article 19
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
Article 20
Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure.
Article 21
A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect.
Article 22
1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:
(a) That the ship is engaged in piracy; or
(b) That the ship is engaged in the slave trade; or
(c) That though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
Article 23
1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 24 of the Convention on the Territorial Sea and the Contiguous Zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.
2. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or of a third State.
3. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship are within the limits of the territorial sea, or as the case may be within the contiguous zone. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.
4. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft on government service specially authorized to that effect.
5. Where hot pursuit is effected by an aircraft:
(a) The provisions of paragraph 1 to 3 of this article shall apply mutatis mutandis;
(b) The aircraft giving the order to stop must itself actively pursue the ship until a ship or aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest on the high seas that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption.
6. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an enquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the high seas, if the circumstances rendered this necessary.
7. Where a ship has been stopped or arrested on the high seas in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.
Article 24
Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject.
Article 25
1. Every State shall take measures to prevent pollution of the seas from the dumping of radio-active waste, taking into account any standards and regulations which may be formulated by the competent international organizations.
2. All States shall co-operate with the competent international organizations in taking measures for the prevention of pollution of these as or air space above, resulting from any activities with radio-active materials or other harmful agents.
Article 26
1. All States shall be entitled to lay submarine cables and pipelines on the bed of the high seas.
2. Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of such cables or pipelines.
3. When laying such cables or pipelines the State in question shall pay due regard to cables or pipelines already in position on the seabed. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced.
Article 27
Every State shall take the necessary legislative measures to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable shall be a punishable offence. This provision shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury.
Article 28
Every State shall take the necessary legislative measures to provide that, if persons subject to its jurisdiction who are the owners of a cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs.
Article 29
Every State shall take the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand.
Article 30
The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.
Article 31
This Convention shall, until 31 October 1958, be open for signature by all States Members of the United Nations or of any of the specialized agencies, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention.
Article 32
This Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 33
This Convention shall be open for accession by any States belonging to any of the categories mentioned in article 31. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 34
1. This Convention shall come into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 35
1. After the expiration of a period of five years from the date on which this Convention shall enter into force, a request for the revision of this Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General of the United Nations.
2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such request.
Article 36
The Secretary-General of the United Nations shall inform all States Members of the United Nations and the other States referred to in article 31:
(a) Of signatures to this Convention and of the deposit of instruments of ratification or accession, in accordance with articles 31, 32 and 33; (b) Of the date on which this Convention will come into force, in accordance with article 34; (c) Of requests for revision in accordance with article 35.
Article 37
The original of this Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in article 31.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Convention.
DONE at Geneva, this twenty-ninth day of April one thousand nine hundred and fifty-eight.

10-14-2008 11:26 AM
sailingdog Then there is also the fact that the naval warship has guns...and you don't...
10-12-2008 11:36 AM
sailaway21 You can sue the government for the actions of merchant vessels that it owns or operates under the Suits in Admiralty statute of 1920. That statute was enlarged to allow you to sue against the actions of naval vessels of the government in the Public Vessels Act of 1925. Such suits are brought in Federal court only under Admiralty. There is no in rem principle involved with public owned vessels.

On the high seas you have a right to free passage and you may even have this right within the territorial waters of a nation if those waters involve a sea lane normally used for international passage-most notable in the waters of archipelagos.

You are not required to respond to the commands of a foreign naval vessel nor be boarded by the members of that vessel's complement when within international waters. There is a caveat to that law though. If the nations of the warship and your vessel's flag have an agreement allowing such actions your government has effectively waived such immunity. These agreements are more common than might be supposed.

There are any number of reasons to be diverted from a naval exercise area under various laws. The most common that is run into on the high seas is that you must give way due to the naval vessels being restricted in their ability to manoeuver under the Colregs.

If you are boarded or shepherded out of a naval exercise area against your will your options are limited to those against the flag nation of the warship and within your own country's courts/government. Assuming that there is no collateral agreement between the two flag nations you may be able to proceed at Admiralty but you are going to have to show a real loss, not just a potential loss. As to your being boarded by a foreign nation's armed forces you will have to rely on your own government to pursue such a case assuming you sustained no documented losses. Generally speaking, these types of situations occur when Greenpeace or some other group intentionally tries to interfere with a nuclear test or something and the country doing the testing removes them from the designated area. In the cases where the Greenpeace vessel was US flagged they've not had much success with the US pursuing their grievances against the boarding nation. There is a fairly strong presumption that such boardings or shepherding of vessels out of areas of naval operations is for the vessel's own safety.

The short answer to Cam's specific question is that there is no law, there may be a treaty, that allows the warship to so direct. To the best of my knowledge there is no French requirement, as there would be no US requirement, to obey the orders of the naval vessel. Of course, as a matter of practical consequences you are assuming all risk for your actions and it would be highly unlikely that your government would offer much in the way of support.

Outside of territorial waters you are free to ignore the entreaties of any naval vessel not of your flag. You're also free to bear the consequences and perhaps the unwillingness of your own government to make it into an international incident.
10-12-2008 10:05 AM
camaraderie I don't know what has brought out the personal stuff here but a legitimate question has been asked and despite the number of words used in response, no one has answered the question.

Let's put it this way. If a FRENCH sailboat with French sailors is crossing the Atlantic and 200 miles out from shore is advised that he MUST change course as the US Navy is engaging in exercises...what LAW or TREATY gives the Navy the right to insist on his compliance?
It is one thing to advise that live fire excercises are being conducted and suggesting a change of is another altogether to insist on a change of course. So where is the legal authority?

...and let's dispense with the personal attacks. Further ones will not be tolerated.
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