Power gives way to sail? - Not with a fishing boat

by Marilyn Miller/Sail-World Cruising on 25 Sep 2009 In a case that cruising sailors will want to take note of, a sailing boat was recently found to be in the wrong when they filed a complaint about a fishing boat.

The investigation found that, in open water, 'a sailing vessel shall keep out of the way of a vessel engaged in fishing.'

The case involved a doctor and an assistant district attorney, who were aboard a sailing vessel in Wellfleet Harbour on Aug. 19. They filed formal complaints with the harbourmaster, the Wellfleet police and the Coast Guard after fishermen David Ziemba and his son Michael Ziemba, of the fishing vessel Sadie Mae, allegedly engaged in 'wanton and reckless behavior.'

The complaints filed by Dr. Richard Rubens and Frank Glaser, an assistant district attorney, included a videotape of the incident that Glaser said 'created the risk of serious bodily injury to my two children.'

His children, wearing vests, had jumped off into the water behind Ruben’s sailboat, 'Trial Balloon,' and were on boogie boards when the 'Sadie Mae' came up behind them and passed then on their left, Glaser said in his complaint.

Rubens, Glaser said, 'cupped his hands around his mouth and yelled loudly at the fishing boat, ‘We have swimmers in the water, get your boat out of here.’'

He yelled at the fishing boat two more times, but the fishing boat instead turned to run parallel to the sailboat.

Rubens, in his complaint, said the Sadie Mae failed to comply with the rules and regulations and his warning to stand off 'to avoid the danger of collision or injury to my swimmers in the water.'

The video was given to Wellfleet Police Chief Richard Rosenthal. He said he turned it over to the Coast Guard.

The Provincetown Coast Guard station handled the initial complaint, then turned it over to their Marine Safety Office, where Petty Officer Craig Sears investigated the matter. By Monday, Sears had concluded the investigation and found in favor of the Ziembas.

'The evidence collected shows that the fishing vessel Sadie Mae was actively engaged in fishing during the close call with the sailing vessel Trial Balloon,' Sen. Chief Ronny German said, reading from Sears’ report.

'The investigation determined that the recreational sailing vessel had been out for the day and had two children off the stern wake boarding. In incidences in which sailing vessels are in open water, Rule 18 shall apply, in which a sailing vessel shall keep out of the way of a vessel engaged in fishing, ' Sears said in his report.

'The vessels did pass at a close, but safe, distance for the weather conditions, and the sailing vessel 'Trial Balloon' would be at fault if an incident had happened.'
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Letters from Readers:

[This first letter was received 20th November, 2010, whereas the other letters were received soon after the article was published.]

Sender: Richard Rubens

Message: Apparently this story was never updated to reflect the final results of this investigation. It was based on a preliminery examination, and the Coast Guard subsequently apologized for its premature and inaccurate release. THe final result completely exonerated me and conclusively found that 1) the fishing vessel was NOT engaged in fishing at the time, 2) that the captain of the fishing vessel had operated his vessel in a dangerous and unsafe manner, and, 3) that the captain of that vessel had a long history of such unsafe operation. The captain of the fishing vessel was put on warning that further such infractions would result in prosecution

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Sender: Oliver Shaw

Message: I thought that it was generally well-known that vessels fishing are one of the standard exceptions to the 'power gives way to sail rule', along with (of course?) the various other exceptions:

i.e. a vessel restricted in her ability to manoeuvre, not under command, aground, constrained by her draught, following a traffic separation scheme, at anchor, operating divers, and all cases where the sailing vessel is overtaking (defined to be when she is within the arc of the sternlight).

However a particular problem with some instances involving fishing boats is that it is not always obvious that they are in fact fishing, as distinct from merely being on passage to or from their fishing grounds, and they are often notoriously lax - for which read AT FAULT - in how they display the prescribed day shape.

A vessel fishing has right of way only while she is actually fishing; not while she is on passage to or from her fishing grounds (or elsewhere).

A few years ago I was hove-to in my GP14 dinghy close inshore in Poole Harbour, waiting for the remainder of our cruising fleet to relaunch after our lunch stop. I was vaguely aware of a medium size workboat a short distance away manoeuvring slowly, but I considered that the two boats were a safe distance apart, and in any case he was not constrained in any way and so I had right of way because I was under sail.

The sole person on the workboat then hailed me very aggressively to ask did I not know the Rule of the Road and could I not read his signal, and he pointed to his fishing daymark, which I confess I had not noticed.

However the primary reason why I had not noticed it was that it was lying on its side, and lashed down on deck (specifically, on the wheelhouse roof, amongst his lifesaving gear). Had I noticed it, I would have concluded that the signal had been struck, and that the boat was therefore NOT fishing at the time.

Rule 26 is absolutely specific about the day shape: 'two cones with apexes together in a vertical line one above the other'. The rule even repeats itself in its insistence that the arrangement must be both 'vertical' and 'one above the other'; that repetition is emphasizing the point about as strongly as is possible within the formal linguistic style of the Rules. If they are side by side in a horizontal line it follows that they are NOT the prescribed shape, and a mariner is entitled to assume that the shape has been struck and that the vessel is NOT currently fishing - and all the more so if the shape is lashed down on deck.

That is very far from being an isolated example of incorrect signalling by fishing boats; many times I have seen them in port with their day shapes permanently in what they perceive to be the working position, which may or may not be the prescribed way up.

I suggest that there are three lessons to learn from this; (1) the reminder that there is a whole raft of exceptions to the usual 'power versus sail' rule, of which fishing vessels are one, (2) fishing vessels need to be far more particular about the CORRECT use and display of the fishing day shape, and (3) for their own protection (since normally it will be the yacht that comes off worst in a collision) recreational sailors need to be aware that fishing boats are sometimes a law unto themselves and we cannot rely on them actually making the prescribed signals correctly!
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Sender: Lindsay Wright

Message: It will come as no surprise to those who know the regulations for prevention of collision at sea that a sailing vessel gives way to a vessel engaged in fishing. The doctor and lawyer in the sailboat should be prosecuted for going to sea with such abysmal ignorance of the rules.

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Sender: Peter Wetzel

Message: This seems proper application of the ColRegs. However, do remember that 'fishing' means having nets or trawls deployed. Boats using rods and reels are not 'fishing' under this rule, as I recall from my licensing class. In any event, always look to rules 1 and 2.

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Sender: Pat Byrnes

Message: Now I'm confused; the regulation cited was for open water but the story said the incident was in the harbour and the story seemed to describe an overtaking situation. The story implies but doesn't confirm that the fishing vessel was a commercial fishing vessel of limited maneuverability.

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