The recent collisions of the USS John S. McCain (DDG-56) and Fitzgerald (DDG-62) with commercial ships have led to widespread discussion about which ships are at fault. The answer to this question lies in what the Nautical Rules of the Road say, and how those rules apply in each situation. The rules on the oceans are governed by “The International Regulations for the Prevention of Collisions at Sea, 1972” (often abbreviated COLREGS).
When considering the case where two vessels are approaching with risk of collision, I often ask other mariners, “Who has the right of way?” Answers generally fall along the lines of:
• “In a crossing situation, the vessel which has the other to port has right of way.”
• “In an overtaking situation, the vessel being overtaken has the right of way.”
• “A vessel which can only operate in a narrow channel has right of way over a vessel crossing the channel.”
• “A vessel conforming to a traffic separation scheme has right of way over a vessel crossing the scheme.”
• “A sailing vessel has right of way over a power-driven vessel.”
A cursory reading of rules 9 (narrow channels), 10 (traffic separation schemes), 13 (overtaking), 15 (crossing situation) and 18 (responsibilities between vessels) might seem to support such answers, but in each case, the answer is at best incomplete—if not wrong.
Instead, a careful reading will reveal that the COLREGS do not use the term “right of way.” (Inland waterway rules differ, but this discussion is limited to COLREGS.) “Right of way” implies that one vessel is free from fault if a collision occurs—this is almost never the case, however. When risk of collision exists within the Rule 18 hierarchy, one of the two vessels in a crossing or overtaking situation is to “keep out of the way” of the other vessel. In Rule 9 or 10 situations, certain vessels are “not to impede the passage” of certain other vessels. But no vessel is defined as having the “right of way” over another.
This is not mere semantics. The maneuvering rules do not operate independently of the other steering and sailing rules or of Rule 2, and none of the rules should be read to imply that one vessel has right of way such as to guarantee absolution from responsibility for a subsequent collision.
In determining fault in the Fitzgerald/AXC Crystal and the John S. McCain/Alnic MC collisions, or indeed any collision at sea, each ship’s conformity with all of (and not only) the following rules becomes a major consideration.
Rule 5, Look-out: This rule clearly states that each vessel must use all available means to determine if risk of collision exists, including “sight and hearing.” U.S. Navy ships certainly have the manpower and detection aids to fulfill this requirement. (The preliminary report on the Fitzgerald’s collision specifically criticizes the ship for employing watchstanders as lookouts only on the port side, with none to starboard.) The merchant vessels involved were under the same obligation as the Navy vessels, and their limitations in manpower provide no excuse. Too often in merchant ship collisions, a single officer on the bridge has no real assistance, is burdened with distracting duties, is fatigued, does not properly employ his automatic radar-plotting aid, and thus does not fulfill the requirements of Rule 5. In busy lanes such as where the John S. McCain’s collision occurred, the task of determining risk of collision can be nearly overwhelming.
Rule 6, Safe speed: U.S. Navy ships have the ability to change speed rapidly, so accelerating or adjusting speed to be “able to stop within a distance appropriate to the prevailing circumstances and conditions” should not be difficult. Deciding on a U.S. destroyer whether to slow down or speed up to avoid collision is primarily a function of training and proper seamanship. Merchant vessels have an entirely different problem in conforming to the requirement to be able to stop. The large size of most oceangoing ships, their different engineering requirements, and the economics of efficient operations make slowing or stopping quickly infeasible. Nevertheless, the requirements of Rule 6 still apply. (The preliminary reports find speed management errors by both U.S. Navy ships.)
Rule 7, Risk of collision: This rule requires proper use of all the aids available to determine risk. (Both the Fitzgerald and the John S. McCain are criticized on these grounds as well.) With their sophisticated electronic systems, it is difficult to understand how either destroyer could not have had adequate ability to determine when risk of collision existed. As for the merchant vessels, the fact that U.S. Navy ships did not use the automated identification system (AIS) and are designed to present reduced radar return have raised questions about the ability of the merchant vessels to determine risk of collision. (In late September, the Navy announced a change in AIS procedures.) These conditions do reduce the indications available to the merchant ship in determining risk of collision. But Navy ships are not invisible—they show correct lighting at night, and while the radar return may not be that of other 500-foot, 10,000-ton ships, they are not invisible to radar even at a considerable distance.
Rule 8, Action to avoid collision: Action must: be positive; be made in ample time; be large enough to be observed; result in a safe passing distance; and, if necessary, slow, stop, or reverse the vessel. In situations where one vessel is obligated explicitly to keep out of the way, the requirements of this rule are clear. But this rule applies not just to vessels giving way. Rule 2 and Rule 17 make action to avoid collision also the responsibility of the vessel standing on.
Rule 10, Traffic separation schemes: The John S. McCain’s collision happened in or near a traffic separation scheme. Rule 10 gives some direction specific to vessels in or near the scheme, but the entire rule is predicated with the caveat that it “does not relieve any vessel of her obligation under any other rule.” Consequently, the rules determining stand on or give way apply as they would in any other waters, but, more important, rules 5, 6, 7, and 8 also apply.
Rule 17, Action by stand-on vessel: This rule requires the stand-on vessel to maintain course and speed, but only so long as the give way vessel is taking appropriate action to avoid collision. The rule goes on to say that that the stand-on vessel must give way when the actions of the give-way vessel alone cannot avoid collision. A pertinent court case from 1984 states: “[B]oth ships were at fault in failure to give way. [One] was obliged to give way under the rules. . . . The other was obliged to give way when [the first] failed to give way.”
Rule 2, Responsibility: This is easily the most important of the rules. Simply stated, it says there is virtually no excuse for colliding with another ship. Ship crews have to do everything that is required by good seamanship and must take into account the limitations of the vessels involved. If departure from the rules to avoid danger is necessary, they must do so. It says crews are liable for any violation of the rules. In U.S. court, the U.S. Supreme Court’s “Pennsylvania Rule” will apply:
[W]hen . . . a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.
In other words, any shortcoming in complying with rules by either ship makes that ship presumptively at fault, in part if not in whole. Unless one of the ships in a collision can show that she did everything required by the rules, she will be at fault. In all probability, in the Fitzgerald’s and John S. McCain’s collisions, both the destroyers and the merchant ships are partially at fault, which under international conventions means that “the liability of each vessel is in proportion to the degree of the faults respectively committed.”
In the end, no ship has “right of way” in international waters.
Captain Allee is a retired surface warfare officer and master mariner. He is the senior shiphandling instructor at the Mid-Atlantic Maritime Academy in Norfolk, Virginia. In the Navy he commanded USS Trippe (FF-1075) and later was Commodore of Maritime Prepositioning Squadron Two. After the Navy he was commissioned in the U.S. Maritime Service and was master of the Merchant Marine Academy training ship Kings Pointer.