Tay Vaughan - Regulation in Recreational Boating

Presentation by Tay Vaughan
President, Bay Area Marine Institute
Annual Symposium of the California Maritime Academy
Vallejo, California
20 May, 1980

Thank you very much, distinguished panel and distinguished guests. I think it is perhaps appropriate to thank Admiral Rizza and the CMA staff for a fine lunch. Classically, a symposium consists of food for both body and mind, and so far today we have had ample quantities of both.

I head up the Bay Area Marine Institute at San Francisco. BAMI is a teaching facility with two primary thrusts: during the daytime we operate a serious full-time vocational program for marine services technicians, teaching subjects which include woodworking and fine joinery, fiberglass technology, electrical system installation, painting and coatings, engine mechanics... Those skills which are used in the manufacture, repair and maintenance of small craft. Evenings we operate an adult education program with courses open to the public. These include, for example, celestial navigation, piloting and coastal navigation, gas and diesel mechanics, lofting, sailmaking, boatbuilding, fishing, and yacht racing tactics among others...

I want to begin my discussion of regulation in recreational boating by telling you of an experience I had several years ago. Back in the spring of 1974 they closed one side of the locks in the Panama Canal for repairs. Ships would wait in Colon or off Flamenco Island to transit north or south in convoys. Late in the afternoon of April 3rd eight freighters and tankers spewed out of the canal at Balboa, heading for points in the north Pacific. In the dark at 2300 I met them head-on about eight miles west of Cape Mala.

I could see them in the binoculars, eight sets of red and green sidelights and in-line vertical range lights, white over white, centered on the horizon

Like a kicking team bearing down on a deep receiver.

I was aboard a 31-foot sailboat making very little progress around this aptly-named cape, beating into force six headwinds on a strong southerly current. I was tired, miserable, wet, and feeling very small. The boat slammed heavily in the steep waves and although I was harnessed into the cockpit, I had tucked myself low against the floorboards.

From these uncomfortable present circumstances I remembered an earlier sunny flat calm morning fifty miles off the Mexican coast when the Exxon Jamestown had overhauled us from the north. After some chitchat on the VHF with Charlie Parker, her captain, he had remarked how everyone on his bridge agreed they wouldn’t change places with me. Not aboard my flyspeck on the ocean.

Feeling very much a flyspeck now, and with this city of ships ahead, I went for my equalizer -- the VHF. Pretty soon I had spoken about five other ships, no one had picked me up on radar, though, despite my patent, guaranteed effective, radar reflector high in the rigging. As the old timers would say, it was a very snotty night, and for about the third time since leaving San Francisco I was seriously regretting my interest in small craft and recreational boating.

The phalanx of ships was much closer and beginning to spread out. And I worried about the one ship still coming straight on. Was she looking, I hoped? Had I spoke her on the radio? Or was she one of the three unknowns not spoken by VHF?

I began my second-level defense and reached into the locker to pull out my mini-Aldis lamp. Dit-dah-dit-dah. I shot her the attention signal. She blinked her running lights. . . It was like Santa Claus dropping out of a wet chimney to personally shake my hand and present me with a new Schwinn.

Turned out to be the Appolonian Wave, and she slowed to about five knots, passing hugely to port and giving me a few seconds respite from the wind in her lee. I envied the guys on the bridge, sipping coffee and eating night lunch, chatting with me on the radio. Japanese, Yugoslav, U. S. , Greek, Liberian. They were all there, rounding Cape Mala and sharing twenty or thirty minutes of my passage to Rhode Island.

Needless to say, I survived this long night and its brief encounter...

The point of this story is that the little guys share a great deal of common ground with the big guys. Same water, same weather, same Colregs, same ports, same navigation aids, and particularly overseas, often the same "Club Lido, ,America Bar, or Seven Seas Restaurant and Disco,.

There are more than fourteen million pleasure craft in the United States. That's a lot of boats. Not all are capable or foolish enough to challenge a D-9, oboe, or other commercial carrier for right of way, nor will most see off-shore salt water service. Nonetheless, these watercraft, their users, their manufacturers, dealers, repair yards, marinas, and other service renderers are subject to complex rules and regulations. Let me briefly describe the small craft and recreational boating industry to you:

On a national scale, in 1978 the boating industry showed total retail sales of 708 billion dollars, and until the 1979 fuel crisis and the current recession, the industry has grown at a steady eight to ten percent each year. More than fifty million Americans participated in recreational boating using the waterways more than once or twice during the past year. sold last year were over four million life jackets and life vests. Since 1920 more than sixteen million outboard motors have been sold. Each year over one thousand persons lose their lives in boating accidents. The total dollar value represented by the recreational boating fleet exceeds the total U. S. commercial fleet in dollar value. The total number of recreational boats in the U. S. is greater than the total number of recreational boats in all the rest of the world.

There is a very large population of small craft and small craft operators in the United States, and there is a large industry supporting them. The industry includes corporate giants like AMF, Beatrice Foods, Chrysler, DuPont, Grumman, ITT, Owens-Corning, Raytheon, 3M, Texas Instruments, and many others.

Regulations in this industry fall primarily into two broad areas: manufacture and use. A boat and its equipment must be safe according to the Code of Federal Regulations. Further, a boat must be operated safely according to these same regulations. Ultimately, the goal of all the regulations embodied in the Federal Boat Safety Act of 1971 is the prevention of accidents and minimization of loss of life and injury.

Interestingly, I would comment that for all the tonnage represented by small craft, Subchapter S of 33 CFR (boating safety) is about 3/8ths of an inch wide on my bookshelf. 46 CFR (shipping rules which apply to the commercial fleet) is about six inches. And in very small print. In 3/8ths of an inch of printed matter, however, there is an overwhelming quantity of regulation which affects recreational boating. This ranges from manufacturer requirements and equipment standards to loading, floatation, hazardous conditions, and accident reporting rules. In addition, small craft are regulated by the same rules of the road as are all vessels...

In a most general sense, it is not only size that separates the big guys from the yachts and small craft, but it is also, of course, commerce. If any money changes hands such as with paying passengers, or a boat engages in commercial trade, it is no longer a recreational pleasure craft and becomes immediately subject to an additional, say, three inches of regulations which include inspection and manning requirements...

Regulation of yachts and pleasure craft began with the Motorboat Act of 1940 which set up various size classes of motorboats and minimum equipment rules for lights, bells, life jackets, and fire extinguishers. In 1958 the new Federal Boating Act required accident reporting and established a coordinated vessel numbering system in cooperation with the states. The most recent 1971 Boating Safety Act repeals most of the 1958 act and amends the 1940 act. Its primary purpose is the establishment of minimum safety standards for boats and associated equipment. It is quite comprehensive.

Until this act, for example, it was hypothetically legal for three heavy-set men to set sail for Hawaii in a cast iron five-foot bathtub, never to be seen again. Now, however, Coast Guard is empowered to declare a voyage “manifestly unsafe,” and terminate any such foolishness. In fact, I heard a story a few years ago about a soldier who had returned from Vietnam furious that he had not been allowed to bring his Saigon woman with him stateside after his discharge. He bought an 8-foot inflatable dinghy, provisioned it with the last of his money, and rowed out the Golden Gate bound for the Far East and a reunion. Coast Guard picked him up out by buoy “8” on the San Francisco bar.

It is difficult to argue against regulation in the face of saving lives and pre- venting injury, as Bernie Thompson, Coast Guard Chief of Boating Safety, said earlier this year about the Federal Boat Safety Act ,we can look at statistics and see that fatalities have plummeted from 1.92 per million boats in 1970 to close to .9 per million last year while the boating population has more than doubled. “It can be looked at this way,” he said, “there are almost seven thousand people who did not die...” In safety regulation, the Coast Guard is at the helm, and I will discuss this further.

But first, I believe I should point out that a third category of regulation affecting manufacturers and users alike is not clearly safety related, but is still of significant impact and is enacted to provide other, sometimes broader, results ostensibly of benefit to the general public. Such regulation includes, for example, nuisance and noise abatement rules applied by local government, local and federal pollution control laws, registration and numbering, marina construction and zoning laws (including regulated environmental impact reports and permit processes), and even the controlled licensing of yacht brokers. These regulations are usually the result of general public interest and are born within the political arena, often the focus of strong polarizations. Environmentalists vs. developers. Canoeists vs. motorboaters. One vested interest vs. another.

A few clips from a trade newspaper quickly illustrate this genre of regulation:

New Yorkers don’t like boat bill.” ...boaters, state officials and legislators in New York are critical of Governor Hugh Carey's boat registration bill tripling fees...

“EPA holds on Virginia.” ...The federal Environmental Protection Agency has decided it needs more proof that adequate pump-out facilities exist on the Rappahannock River before it will go along with the State of Virginia bid to have the area declared in a no-discharge zone...

“Florida lawmakers to weigh tax.” ...The Florida Legislature will take up the liveaboard tax issue and salt water fishing restrictions in its 1980 term...

“DOE’s weekend ban plan is heading for the rocks.” ...The federal proposal to establish stand-by weekend boating curbs should be dead by the middle of the month, the architect of the bitterly-received plan said in march. . .

"Warning" . . . Oregon State marine director Mal McMinn is warning thrill-craft riders to clean up their act. At the request of angry boaters and waterskiers, the state Marine Board is considering banning jet-ski, ski-doo and other similar recreational machines from all or some of the state’s waters...

Heavy duty! And perhaps not in the same league as supertankers on Puget Sound, but don’t forget that more than forty million Americans participated in recreational boating last year. That is a lot of citizens. Regulations are everywhere in our lives. they are necessary for government to govern, and they can be created, altered, or destroyed according to the direction of power, energy, and "clout" applied. Indeed, in so far as individuals and society as a whole can be manipulated, so can their governing regulations.

But safety rules (and now we return to the core of regulation in recreational boating) are inherently difficult to steer in any direction except toward “more safe,” ultimately striving for an elusive “most safe.” Particularly in this lawyer’s age of product liability and litigation, only a foolish manufacturer would endorse (or perhaps I should qualify this with the modifier "publicly" endorse) steering toward the “less safe.” Taking such a direction is not only in bad form, it is by definition, dangerous, to the proponent as well as society.

So the Coast Guard administers a set of minimum safety regulations. They do this not by inspection (as does the M branch for commercial ships) but rather by a sort of “audit.” Whereas a commercial vessel will undergo plans inspection, construction inspections, and abs or other classification society certification, pleasure craft manufacturers are “self certified.” In fact, they are required by law to attach a label to boats less than 20 feet which says ,this boat complies with U. S. Coast Guard safety standards in effect on the date of certification...”

Throughout the country there are about twenty-five Coast Guard boating safety people who “audit” the self-complying manufacturers. With thousands of craft being built each year, this is a feasible method of management.

If a manufacturer discovers or learns of a defect in his boat which fails to comply with the safety standard or which creates substantial risk of personal injury he is required to turn himself in and notify both purchasers and Coast Guard headquarters, and he must repair all defects at his sole expense. Otherwise he faces a $2000 fine for each boat or separate violation. 90 percent of defect recalls are manufacturer-initiated, where a builder will say “Hey, we made a mistake.” Fines in these cases are not usually levied.

Development of safety regulations is accomplished by a number of organizations working in concert with the Coast Guard, including the American Boat and Yacht Council, UL Marine Division, the National Fire Protection Association, and the National Marine Manufacturer's Association.

I sit on.the Electrical Standards Committee for the American Boat and Yacht Council. On this committee are representatives from Coast Guard, UL, and major manufacturers of vessels, engines and equipment. We meet every few months to revise or develop standards which are then published in the volume “Safety Standards for Small Craft.” It is in interactive committees such as this that safety regulations are born, holed up in an airport hotel conference room, drinking coffee, and pooling knowledge and experience.

There is healthy interplay by all segments of the small craft industry. While ABYC committee members are required to function independently as knowledgeable individuals and not as agents for their companies, I have witnessed the stress upon some of my fellow members when a safety rule is established which will reflect itself in additional manufacturing costs which may be quite significant. This is, however, the successful movement from “safe” to “more safe.”

So, safety regulation of manufacturers and equipment is accomplished using a self-compliance model with Coast Guard “audit.” The burden is on the manufacturer to comply,

Regulation in the user sector is reasonably simple, users of small craft and yachts are subject to the same operating regulations as affect commercial traffic, same Colregs and navigation rules.

Yet there is a real problem here. Many small craft operators are ignorant of the rules. And there seems to be no law or regulation requiring about 28 million boat operators to know the rules. The navigation rules for inland waters are specific and, I quote, "shall be followed by all vessels upon the harbors, rivers, and other inland waters of the United States.” Yet a fellow can go out and buy a 300 horsepower ski boat with a gas pedal, gear shift and steering wheel just like his car, and drive it down the fairway with no knowledge of right-of-way, whistle signals, or rules for preventing collision. And worse, he can do this with no knowledge of the vessel and it limitations, the water environment, weather, and general seamanship. I wasn’t going to tell any stories to illustrate this kind of operator, as I am sure you all have met him personally at one time or another. But I have a good one.

A submarine commander related this one to me over dinner in San Diego a few years ago. He had been a guest aboard a Coast Guard cutter a few miles west of San Pedro when at dead slow in a thick fog, they were almost rammed by a small cabin cruiser with one man aboard. He circled them several times and pulled alongside, asking up to the flybridge, “Which way is Long Beach?” The skipper called down for him to wait while he got a position." They plotted a bearing to San Pedro breakwater and yelled down to this guy to steer about 075 degrees for maybe 3.2 miles. Then there was a long pause and finally the guy yells back “No--no that won’t help--point. I don’t have a compass.”

Licensing is a growing issue in recreational boating circles. Presently there are about 15,000 licensed boat operators for vessels under 100 tons. Add to that about 5,000 mates and masters. That makes licensed personnel about seven-hundredths of a percent of all Americans using the waterways. No wonder licensed operators tend to be defensive drivers.

In lieu of requiring licensing for pleasure craft operators, both state and federal agencies spend about 20 million dollars a year for boating education. the Coast Guard Auxiliary, the Power Squadron, the Department of Boating and Waterways in California and other organizations such as the Bay Area Marine Institute provide user education. insurers will grant premium discounts for this training and so provide some incentive...

The Federal Boat Safety Act. of 1971 authorizes states to license boat operators, but until now they have only done so as an age limit. In Michigan, for example, a 16-year old may not operate a boat without a license. . ,

While it is impossible to license common sense, a licensing program would by its very existence provide a basic knowledge to all users. in Europe, both at sea as well as on inland lakes and rivers, an operator,s license is mandatory.

While you can’t license for basic common sense, and while the setting up of a licensing system is a complex political and bureaucratic matter, I am convinced that we will soon see this new regulation... And, as was done when automobile driver licenses first were required, probably everyone presently operating a pleasure boat will be “grandfathered.” Administrative costs might run as high as six or seven dollars per license. . .

As you can tell by now, I am strongly in favor of safety regulations for manufacturers and users in the recreational marine industry, and to me, 3/8ths of an inch of 33 CFR does not seem to be “over-regulation,” especially when I watch our big brothers operate within a full library of do’s and dont’s. I have some serious misgivings about the regulations in our third, more political, category which includes special taxes, berth shortages, and marine sanitation devices. But these issues I will save for my congressman and state senator.

I would like to leave you with a parting image of regulation compliance. It's a lovely summer's Saturday afternoon on the narrow Oakland estuary, all boat operators have now been licensed and not only understand the regulations but practice them literally. Can you imagine the cacophony of several hundred pleasure boaters complying with required whistle signals for leaving a dock and for passing other vessels within half-a-mile?