Mike … I had the same thing happen to me years ago (me being STB boat). 

IMO, there can be a big difference between STB saying:

It begs the question how can STB testify that there was no reasonable maneuver she could have done if she was unaware.   I guess if Port is adamant that there was nothing that STB could have done by the time Port misjudged .. and STB doesn’t provide any testimony to the contrary, Port’s testimony would could carry you to that Fact Found and Exoneration. 

In my case .. we both saw each other for 6+ BL’s and when I realized he was about to T-bone me, it was too late.  In my case, it didn’t matter that we both saw each other. (his main trimmer couldn’t release the main sheet from the cleat). 

So in your scenario, would STB have done anything differently had she seen Port and made eye contact with the driver?

Is that what you are thinking?

Yes.  I agree that your point 2 above does NOT break R14.  

S said "I just didn't see him, there was nothing I could do (by the time I saw him)".  I DSQ 'd both P (10, 14) and S (14), but S feels very upset that as Stbd boat he got DSQ'd.  I explained that being S doesn't give you a god given right to not keep a good lookout.  
My conscience is bothering me in case I made a mistake DSQ -ing S, and I want to know what others would have done.   The regatta is done and dusted. 

Lot's of more specific testimony needed to make full judgement. However, STB saying "just didn't see P approaching" would indicate to me that STB probably breached RRS14.

I would not DSQ Starboard.  Even if he claimed he/she saw P, what could they do to avoid?  Maybe pull the helm and spin the quarter/transom out of the way?  It is very difficult to judge when it's obvious that P is ducking.  

if S did not see P, how can you say there it was not reasonably possible to avoid collision ?

Case 27 and 87 are relevant here. 87 notes that S doesn’t need to take avoiding action until it’s clear that P isn’t keeping clear, but S’s testimony that she didn’t see P could mean they weren’t keeping a good lookout, which could mean they break 14.

That said, more facts would need to be known here, such as where the contact was, did S try and and avoid once she did see P, and so on. Did S really not keep a good lookout, or did a crew member see the boat and assume it was going to duck? On a failed duck, even if S had seen her, was it likely P would have hit anyway?

P's bow hit S port pushpit causing damage.  S made no attempt to avoid collision as by the time they saw P, nothing could be done to avoid collision. 

IMHO - While S not keeping a proper lookout is a red flag, it is not the determining fact, I think you have to ask yourself the question: had S seen P the entire time when would it have been clear that P would not keep clear and what could they have done starting at that point in time?  That's what the rule requires of the ROW boat.  In this case where P hits the port side of S, especially while trying to duck, probably not much.  Had P tried to cross S, certainly more (ducking or luffing).  I would have had a hard time finding that it was reasonably possible for S to have done something to have avoided the contact once it was clear that P would not keep clear.  There were probably only a few seconds to make a decision and only a few feet to do it in.

Mike, also don’t forget the rigs aloft. In 15 kts of breeze … Port’s crew on the rail…, had STB attempted to swing her stern away at the last min, putting her hull parallel to Port, there is a  chance the rigs get into each other as STB blankets Port and maybe Port stands up and rocks toward STB .. STB bearing off and increasing her heel toward Port. 

If P is shaping a course to duck, it is hard to know what S could do to avoid. Bearing away would impede P keeping clear. Luffing might not help either. Especially if it was late and the counter swung towards P.  I have been P at a starboard rounding. Ducking when S luffed to tack and there was contact. I have also been P when the main sheet was stuck in the jammer.   At least no one was hurt. 

I kind of feel like even if S had stared P all the way in and even if S had been hailing early and often, it would have looked to S like a duck until suddenly it didn't. Given that P was actively trying to duck, it wouldn't be apparent to either boat until seconds before impact that P was not going to keep clear. So I think I might have scolded S for not keeping proper lookout but probably wouldn't have penalized.

I think Case 87 supports this view, and I don't think Case 26 applies since even if S had been aware of P the result likely would have been the same. 

I completely agree that S's statement of, "I just didn't see them" is quite damning as they failed to maintain a proper look out in concept or with a strict application of the statement, but I also think DSQ'ing S was an error from a strict reading of RRS 14.  From the second sentence of rule 14, "However, a right-of-way boat... need not act to avoid contact until it is clear that the other boat is not keeping clear..." we can not place the level of a breach of the rule on S for simply not maintaining a proper lookout. The rule allows them to do nothing (not to act) to avoid contact until it is clear that the other boat is not keeping clear. When P is maneuvering to duck S it will not be "clear" until almost the instant contact occurs very near the transom that they are not ducking and at that point there is no way for S to act to avoid contact.  Further, with all crew hiking and likely the helm also serving as lookout, "I just didn't see them" in reality becomes more of a "I looked under the boom a few seconds earlier and nobody was there" as you can not both drive and watch to leeward around sails constantly; none (okay, few) of us, while racing, maintain a proper look out as required by IRPCAS/COLREGS. COLREGS Rule 5 says, “Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” That means a person dedicated to the job 100% of the time; while racing we just don't do that.

Having sailed and driven keelboats, having situational awareness of traffic is real important, especially in breezy conditions where everyone is hiking. It’s easy on my MC nowadays with a giant window in the main, but visibility on a keelboat can be a challenge, especially on those with overlapping jibs. That said, I always took periodic looks under the boom or had the smallest person duck below to see, especially approaching a mark. I always try and keep a mental picture of boats that might be issues when I tack so I’ll have an idea as to whether I need to be concerned about a boat that might be approaching on my next heading.

Given where P hit S, even if S had seen him, it was likely not obvious until the last second that he was about to get hit, and likely no maneuver he made would have mitigated that. That said, not even having awareness that he’s there is an issue for me.

Not keeping a lookout does not break a rule. If rule 14 applies, no lookout is germane to 'reasonably possible'. In this instance, there appears to be consensus it may well not have been possible for S to avoid when it became clear P was not keeping clear. Where S is being ducked by P, the onus is generally on S to hold course. 

Exactly. Case 107 introduces the term "good lookout" in relation to "reasonably possible". With or without a "good lookout" the collision was likely unavoidable through any action by S when it became apparent that P was not keeping clear.

Charles re: “Not keeping a lookout does not break a rule”

In support …from Case 26 (note the word “should”… emphasis added)

Also note the conditional “if” statement … “If P had [kept a lookout] … [she would have] been able to avoid the collision”. 

Seems we are the opposite … “Even if she kept a lookout, she would not have been able to avoid the collision”. 

If neither P nor S was keeping a lookout or hailing and both said they never saw the other until hulls were in contact (or collision was unavoidable) I'd say Case 107 applied and both should be tossed. But in this case I don't think it would have made a difference.

I'd also want to pick a bit at S's statement that she "didn't see P approaching". Surely at some point before contact, maybe a few boat lengths, S became aware of P and assessed that she was ducking. At that point it was reasonable for S to assume that P would keep clear, and take no action to avoid.

Keeping a proper lookout is part of R14: "A boat shall avoid contact with another boat if reasonably possible" Reasoning: not keeping a proper lookout makes it really hard to argue that she did everything reasonably possible to avoid a collision.  In addition - Breaking IRPCAS IRT to ANY boat (racing or not) is not OK. It is even specified in the RRS that boats racing needs to adhere to IRPCAS (including the requirement to keep a proper lookout) IRT to boat a not racing; so I fail to see how anyone can argue that S should get a pass for not keeping a proper lookout for any other boats.

Both boats should be tossed.

And the insurance companies will also access fault on both sides

Although Case 107 relates to an incident before the Start, it is relevant ......

Case 107

 

Rule 14, Avoiding ContactRule 44.1, Penalties at the Time of an Incident: Taking a PenaltyRule 64.2(a), Decisions: Penalties

During the starting sequence, a boat that is not keeping a lookout may thereby fail to do everything reasonably possible to avoid contact. Hailing is one way that a boat may “act to avoid contact”. When a boat's breach of a rule of Part 2 causes serious damage and she then retires, she has taken the applicable penalty and is not to be disqualified for that breach.

Good catch on Case 107.

Thinking about this more, however, if I was driving S, and I had seen P coming (assuming I’m checking under the boom and so on), I probably would’ve been concerned, but assumed she’d duck. At that point it’s obvious that she’s not making her duck, the only alteration i could make to avoid can’t be to head up, since that would simply bring the stern right into her bow, but instead try and bear off to hope for a more glancing blow. The bear off attempt in that breeze likely wouldn’t work without dumping the jib or genny which there wouldn’t be time for (in actuality, you’d end up simply heeling the boat over more and slowing down if you didn’t) so the best course may actually be to do nothing, try and blow past and hope for the best.

So, Case 107 suggests that the DSQ of S could be justified from the facts. But given the facts, might be that S’s best play was to do nothing.

If you are thinking of using Case 107 to justify a DSQ for S, remember that the ROW boat does not have to take any action, which includes hailing, until it is clear that P is not going to keep clear.  It is at that point in time that S has to start to do everything reasonably possible to avoid contact, not before.  You can't assert that S could have done more before that time to conclude that she broke rule 14 as there is no requirement for her to do so.

The IRPCAS rules do not apply between boats that are both racing under the RRS.  My understanding is that the RRS create a contract between the boats that replace the IRPCAS, at least in the US.  So you cannot apply the 'proper lookout' requirements of IRPCAS to boats racing using the RRS.

I don't believe that's true at all. In many cases between boats racing it's impossible to simultaneously obey RRS and IRPCAS. Case in point: how do you reconcile RRS 11, 12, 17 with IRPCAS rule 13 (Overtaking).

I believe there's legal case law that says that when boats are racing (and have agreed to RRS 4, Acceptance of the Rules) they've essentially made a contract to observe RRS instead of IRPCAS. So a court or insurance company would assign fault in accordance with RRS when both boats had entered into that contract.

Regarding the preamble to Part 2 and boats not racing, the non-racing boat has not accepted RRS and has not entered into such a contract with other boats, racing or not. So it only makes sense that the rules in effect when one boat isn't racing are IRPCAS.

I think the word “may” is important to note in Case 107 (emphasis added).

“[…] a boat that is not keeping a lookout may thereby fail to do everything reasonably possible to avoid contact.”

It is not stated as a conclusive singular condition. 

IRT  IRPCAS :  Sure there are some rules in RRS that supersede  IRPCAS when both boats are racing BUT not keeping a proper lookout is NEVER OK as a boat will not even KNOW if ANY non-racing boats are in the vicinity if she is not keeping a proper lookout - thus breaking the RRS part about adhering to  IRPCAS  if meeting a boat, which is not racing - to adhere to  IRPCAS requires a boat to keep a proper lookout at all times.

The rule about IRPCAS, preamble of Part 2, says when a boat sailing under these rules meets s vessel that is not, she shall comply with IRPCAS. You need to meet a vessel not racing for IRPCAS to apply. 

Something I would note: P attempts to duck S. 

P is therefore attempting to keep clear of S. 

S is not obliged to act to avoid contact until it is clear that P is not keeping clear. 

The point of contact is S's port quarter, due to a misjudged duck.

Therefore, even with a proper lookout, it would have seemed to that lookout that P was attempting to avoid S, and thus there would not have been a need to alter course until very late. 

Even at that point, with the point of contact on S's port quarter, it would beg the question of what action S could have taken to avoid contact when P was ducking. The best, indeed only, thing you can do there is hold your course and sail faster, because anything else just means you'll be going slower and they're even less likely to duck you successfully.

Given the obligation is to avoid contact where reasonably possible, what other actions could S have taken that would be reasonably likely to have prevented the contact where the contact was due to P just making a mistake while trying to keep clear?

I would tentatively drift towards thinking that the failure to keep a lookout would not have changed the situation. If it would not have changed the situation, it cannot have altered what would be required to avoid contact where reasonably possible, as it does not change what is possible or what would be the best - probably only - course of action reasonably likely to avoid collision.

https://caselaw.findlaw.com/court/us-1st-circuit/1316530.html
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Dick Rose on the matter of damages:  https://www.sailingworld.com/how-to/who-pays-when-there-are-damages/

I believe that was reversed on appeal.  

Remember prescriptions on damages vary greatly depending on the MNA. In Canada:
Rule 67 – Damages
Sail Canada prescribes that a boat that has been found by a protest committee to have broken a rule and caused damage shall be considered at fault for the purposes of rule 67.

Very different from our United States colleagues.

BTW, its DSQ both as I see it.
(Case 26 and 107.)

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Charles Darley, that is the 'appeal' decision.

Initially, the District Court awarded the liability 60/40% under Colregs.

The Appeal Court overturned that, and awarded the liability 100%.under RRS. 

"In sum, the International Jury found the ENDEAVOR solely responsible for the collision, and it was inappropriate for the district court to have gone beyond this decision in the assignment of fault. We conclude that the findings of that forum were final and binding on the parties, and we therefore reverse the decision of the district court in that regard."

I must learn to read.

Case 50 establishes that P is not keeping clear if S has a reasonable apprehension of contact, so S is justified in taking avoiding action. Is this the same point as 'it is clear that the other boat is not keeping clear'?
In this case neither applies because S did not know that P was there. So, for instance, there was no hail, no avoiding action.
I would argue that S could have done something to prevent or minimise contact and so broke RRS14.
If it was decided that she did not break the rule, the fact that she was not keeoing a lookout would mean that the 'no fault of her own' clause of RRS 62.1 does not apply so no redress!