The phrase which forms the title of this article occurs in art. 27, international and inland rules, known as t the general prudential rule, in the corresponding pilot rule XI, and in art. 29, international and inland rules, sometimes called the rule of good seamanship.1 In art. 27 we are directed to give due regard to any special circumstances which may render a departure from all the preceding rules necessary to avoid immediate danger, and in art. 29 we are warned against neglecting any precaution required by such special circumstances; but neither statutory provision gives a real definition of the term. As with several other expressions in the rules, such as moderate speed, efficient fog horn, and risk of collision, we must go to the decisions of the admiralty courts to find out just what is meant by special circumstances.
It will be noted from the language of the two articles, identical in international and inland rules, that in art. 27 special circumstances are given as a basis for disregarding the other rules, while in art. 29 special circumstances are given as a basis for supplementing the other rules with additional precautions not ordinarily required. On the one hand, to avoid an immediate peril it may be permissible, and even necessary, to violate a requirement of the first 26 articles; on the other hand, full obedience to these articles may not be enough, and the special circumstances of the case may demand even further action if collision and liability are to be avoided. A single illustration of the latter will suffice. In a very old case the Circuit Court of New York held a steam tug liable for proceeding on a dark and rainy night, with a tow of seven canal boats on a long hawser, through a narrow, crooked channel without signaling her presence to an approaching steamer. The court said,
Proof that a vessel has complied with the statute regulations in regard to lights will not necessarily exonerate her from responsibility for a collision. When the special circumstances are such as reasonably to call for extraordinary measures to apprise other vessels of her proximity and character, her omission thereof is culpable negligence.2
There is a popular fallacy among navigators that whenever a perceptible risk of collision exists the rules, except arts. 27 and 29, at once cease to apply, and from that moment on it is each man for himself and the devil take the hindmost. A moment’s reflection will convince anyone of the folly of having rules which would not hold up in a reasonably close situation. Of course, there was no such intention at the international conference. The real key to the matter, as brought out in decision after decision of the courts, is in the words immediate danger. As said by the federal courts of the Virginia district in two early cases under former rules:
The rules of navigation must be observed, and the courts have no option but to enforce them unless in cases coming clearly under this rule where it is necessary to avoid immediate danger.3
This rule admits a departure from all rules in moments of immediate danger.4
And as said by the Supreme Court in another case:
Exceptions to the international rules, provided for by this rule, should be admitted with great caution, and only when imperatively required by the particular circumstances. Therefore under all ordinary circumstances, a vessel discharges her full duty and obligations to another by a faithful and literal observance of these rules.5
That a danger which justifies a privileged vessel in a collision situation for altering the course and speed which she is required to hold must be very close indeed was brought out in two other decisions, one by the Supreme Court. In the Illinois case, a steamer collided with a schooner which tacked to avoid floating ice, and on a showing that the schooner could have held on a minute or two longer without striking the ice, and thus allowed the steamer to clear her, she was found solely liable for the collision.6 In the more recent case of the Norfolk, the privileged vessel in a crossing situation slowed down because of a tug with a tow which was seen to be about 1,200 feet beyond the intersection point, and the court, in finding her liable for the collision, remarked that,
The duty of the privileged vessel to keep its course and speed is as definite and precise as the duty of the burdened vessel to keep out of the way.7
These decisions all emphasize the error of considering any situation a special circumstance, within the meaning of the rules, which does not involve a certain and imminent peril.
It may serve to clear up in the reader’s mind what the courts recognize as special circumstances if we first consider a number of situations which the courts have held are not special circumstances, within the meaning of the rule or to a degree entitling a vessel to disregard the ordinary requirements. We have pointed out that there is no such special circumstance if an impending danger is too distant to be considered immediate. In an early New York Harbor collision between the tows of two tugs which met off the Battery in the crossing situation, the burdened vessel was held at fault for failure to comply with the inspectors’ rule requiring her to go under the privileged vessel’s stern. The validity of her argument that a special circumstance was created by a strong adverse tide which would have set her far down the river and thus materially delayed her if she had executed right rudder instead of trying to keep out of the way by going left was denied by the Circuit Court of Appeals. In thus deciding, the court, in effect, found that the matter of convenience or inconvenience is not entitled to weight in determining special circumstance.8 Again, in another crossing collision in the same harbor between two ferryboats, both were held at fault, and the plea of the burdened ferry that its well-known schedule in connection with railroad trains made a special circumstance entitling it to cross ahead of the privileged vessel was refused.9
In a case of head-on collision in 1869, between a brigantine and a schooner in Long Island Sound, conditions of visibility were such that neither lookout, although properly stationed, saw the lights of the other vessel until collision was imminent. The brig was running close-hauled on the starboard tack, and the schooner, on the port tack, had the wind a little free, and under the rule effective at that time, each vessel was bound to port her helm. The brig, however, starboarded, and in the resulting collision sank the schooner; and the Supreme Court denied her plea that the imminence of collision at the moment of discovering the schooner’s lights created a special circumstance excusing her violation of the meeting rule.10
In a crossing case in 1865, the side- wheeler America was in collision off the Battery in New York with the steamship Corsica. In this case, the Corsica, the privileged vessel, instead of holding her course down the river, swung left under the mistaken assumption that the America intended to hold on across her bow; and the America, backing down to keep out of the way in conformity with the rule, was actually making sternway when struck. At that time the rule requiring the privileged vessel to hold on contained the stipulation “subject to the next article” which was our present art. 27; and the Corsica’s counsel contended that special circumstances were created by fear that the America would not give way. In denying this plea the Supreme Court thus very early settled the obligation of a privileged vessel to hold course (and under present rules, speed) as long as it is still possible for the burdened vessel to carry out her own obligation and give way.11
In another New York Harbor case the Red Ash, a burdened tug with a car float on each side, collided with the Hale, a privileged tug without tow. The fact that the Red Ash was with tow alongside did not excuse her for failure to back down at once when she sighted the Hale 500 yards distant on her starboard bow, nor allow her to invoke special circumstances as an excuse for such failure, when as a matter of fact she did back down after an interval, but not soon enough to prevent collision.12
The steamer Dimock collided with the steam yacht Alva, which was at anchor in the narrow and tortuous channel known as Pollock Rip Slue on Nantucket Shoals, in a dense fog. As she struck an anchored vessel, the Dimock was, of course, self- convicted of excessive speed in accordance with the well-known rule of the Supreme Court that if she was going at such a rate as made it dangerous to any craft which she ought to have seen, and might have seen, she had no business to go at that rate.13 However, she sought to invoke the special circumstance rule on the grounds that running with a swift tide in a crooked channel compelled her to make about 8 knots over the ground in order to have steerage way. While the court admitted that the argument might have had some force had the Dimock been compelled to navigate the channel, on a showing that she deliberately entered after the fog set in and kept going instead of anchoring when it failed to abate, it held that special circumstances did not apply.14
In still another New York Harbor case, the Transfer No. 10 was held at fault for a head-on collision with the tug Mary J. because she was navigating up the Manhattan side of the East River, in violation of both inland and harbor rules. The court denied that the local custom of keeping on the left-hand side in an ebb tide to make better speed could create a special circumstance as contemplated by the rule.15
The tug Mohawk collided with the tug Howard Carroll in a dense fog while the latter was moored at the end of an East River pier. Her plea was that she had a defective compass and supposed she was navigating in the middle of the river with proper caution, at three miles an hour. However, on a showing that the compass was known to be out of order before entering the fog at Brooklyn Bridge, the court declined to find her predicament a special circumstance, and held her solely liable for the collision.16
In a Boston Harbor case one passenger vessel collided with another in a thick fog shortly after an earlier collision between one of them and a third vessel. The court failed to accept the confusion that prevailed on board the vessel that had already been through a collision as a special circumstance excusing her for failure to note the other’s fog signals, and ruled that she should not have again got under way until everything was shipshape and the officers had regained their composure.17
In a collision on the Delaware River at night the sloop yacht Venture was sunk by a barge in tow of the ocean tug International, while drifting in a very light wind of insufficient strength to give her steerageway, and while not keeping a proper lookout. The tug was obviously at fault for failing to keep dear of the sailing vessel; but the court held the yacht also at fault, refusing to excuse her situation on the grounds of special circumstance and holding that she should have anchored near the shore instead of allowing herself to drift into midstream and into the regular path of moving vessels.18
The foregoing decisions make it very plain to the mariner that art. 27 is far from being a mere substitute at will for the requirements of the other articles. The United States Supreme Court has explicitly limited the application of the special circumstance rule in three well- known decisions:
It applies only where there is some special cause rendering a departure necessary to avoid immediate danger such as the nearness of shallow water, or a concealed rock, the approach of a third vessel, or something of that kind.19
Nevertheless it is true that there may be extreme cases where departure from their requirements is rendered necessary to avoid impending peril, but only to the extent that such danger demands.20
Exceptions to these rules, though provided for by rule 24 of the Revised Statutes (now art. 27), should be admitted with great caution, and only when imperatively required by the special circumstances of the case.21
Referring to the above opinions of the court of last resort in the H. F. Dimock, previously cited, the Circuit Court of Appeals remarks that, taking it altogether, these expressions go little, if any, beyond applying the rule of in extremis.22
With this discussion as a background, we may now consider a number of decisions where special circumstances have been held to justify a departure from the ordinary rules, and may therefore, under similar conditions, be regarded as a basis of action in a collision situation or of defense after a collision has actually occurred. These may be said to fall into five groups: (1) where the situation is in extremis; (2) where other apparent physical conditions make obedience to the ordinary’ rules impracticable; (3) where the ordinary’ rules must be modified because of the presence of a third, or other additional vessels; (4) where the situation is not specifically covered by the rules; (5) where one of two vessels proposes a departure from the rules and the other assents.
(1) Where the situation is “in extremis.” —Whenever two moving vessels approach each other so closely that collision is inevitable unless action is taken by both vessels to prevent it, the situation is in extremis. Except in thick weather, obedience to the rules will generally prevent vessels from coming into dangerous proximity, it being the intent of the rules to prevent not only collision itself but risk of collision. Hence it will be found almost invariably that when two vessels reach a situation where collision is imminent, one or both of them has violated the rules. This may be illustrated in the crossing situation. If the burdened vessel fails to give way and both hold on long enough collision will inevitably occur. It has never been the intent of the rules that the privileged vessel, which is under a specific requirement to maintain course and speed, should hold that course and speed right through the other vessel. On the contrary, as soon as the vessels reach a position where collision is so imminent that it cannot be avoided by the burdened vessel alone, it immediately becomes not only the right but the expressed duty of the privileged vessel to take such action as will, in the judgment of her commanding officer, best aid to avert collision. In the international rules the footnote of art. 21 is a statutory provision to that effect,23 applying not only in the crossing situation but in every situation where one vessel is privileged and the other is burdened. While this note is not included in the identical art. 21, inland rules, nor in the pilot rules, yet it may be regarded as in those rules by construction under arts. 27 and 29, and therefore equally applicable in the inland waters of the United States and dependencies. As stated by the Circuit Court of Appeals in a collision between two tugs at Charleston, South Carolina:
There is no right of way on which a vessel is entitled to insist when it is obvious that it will result in danger of collision.24
And as held by the Circuit Court of Appeals in a collision of two ferryboats in New York Harbor, where the privileged vessel maintained course and speed after it was manifest that departure therefrom could alone prevent collision:
When a collision is imminent, each vessel must do all in her power to avert it, no matter what may have been the previous faults, or which may have the right of way.25
A similar opinion was stated by the district court in a more recent case in which a sailing vessel in tow of two tugs collided with an ocean steamship on Puget Sound in foggy weather:
Even improper navigation of another vessel does not excuse adherence to a definite rule, when such adherence plainly invites collision, and stubborn adherence to rule is sometimes culpable fault.26
The mariner on a privileged vessel is given a nice question to decide whenever he is brought into close proximity with a burdened vessel. For on the one hand, he is required by law to hold course and speed as long as it is possible for the other vessel to conform to the rules in time to escape collision;27 and on the other hand he is forbidden to hold on the moment the persistence of the other creates an imminence of collision so great as to constitute a special circumstance. There are two things about this situation the seaman will do well to remember. One is that as navigator of a privileged vessel he should make no change in course or speed until he is prepared to testify that in his judgment the burdened vessel had made collision inevitable without such action. The other is that if he does not change before this, then any action which he takes in good faith to aid in avoiding collision will be upheld by the courts. Any action except no action; that is, continuing on into a collision without change.
The courts make a distinction here in favor of the vessel which is brought into a situation in extremis solely through the fault of another vessel. It is true that she cannot invoke special circumstance to excuse a violation or an improper action unless she comes into court with clean hands. Thus, a merchant vessel may not be excused for an error in extremis where at the time she was not under command of a man with a master’s license;28 nor may a vessel navigating without a proper lookout;29 but almost time without number the courts have accorded with an opinion expressed by the Circuit Court of Appeals more than 30 years ago in a case at sea in which a burdened sailing vessel held on across the bow of a privileged sailing vessel, and the latter, when within a few hundred feet, put her helm up and wore instead of putting it down and coming into the wind, which subsequent events indicated would have been preferable:
Where the master of a vessel, who is a navigator of experience and good judgment, is confronted with a sudden peril, caused by the action of another vessel, so that he is justified in believing that collision is inevitable, and he exercises his best judgment in the emergency, his action, even though unwise, cannot be imputed to his vessel as a fault.30
And so in a long line of decisions, some of them antedating the present rules, we find a steamer in extremis excused for stopping and reversing instead of holding on when the latter course might have avoided collision;31 a schooner excused for starboarding when the evidence showed that porting would probably have been more successful;32 a tug for not stopping her engines and allowing her tow, which was long and cumbersome, to sag and so avoid collision with another tug;33 a dredge at anchor for a misleading lantern signal to a steamer which was threatening collision;34 a tug for reversing and immediately going full ahead, to avoid a schooner making excessive speed in a fog;35 and a steamship for going full speed ahead in a futile attempt to clear a burdened vessel that failed to give way.36 As pointed out by both district and Circuit Court of Appeals in two decisions since the war:
If one vessel places another in a position of extreme danger through wrongful navigation, the other is not to be held in fault if she is not navigated with perfect skill and presence of mind.37
The master of a vessel acting in extremis is not held to an exercise of that cool and deliberate judgment which facts later developed show would have been a better course.38
To conclude this point it may be said that special circumstances exist and vessels are in extremis, regardless of the cause, whenever the situation becomes one in which adherence to the ordinary rules is reasonably certain to cause a collision.
(2) When apparent physical conditions prevent obedience to the ordinary rules.—This justification for invoking the rule of special circumstances may be illustrated by a case in which a privileged vessel crossing a river approaches a burdened tug with a hawser tow coming down with a swift current. Under the circumstances, it is obviously impossible for the tug to stop or reverse without being rammed by her own tow, and it would be culpable fault for the privileged vessel to insist on her right to cross ahead39 if the tug could not clear her. However, this should not be taken to mean that every tug with a following tow becomes per se a privileged vessel; and whenever risk of collision can be avoided by the timely slowing down of a tug in the burdened position she is rigidly held to duty.
A tug with her engines working full speed astern struck a pier on the East River with such force that the master was knocked unconscious, and then backed out in a semicircle with no one in control, until it struck another tug, with tow, coming up the river. Four minutes elapsed between the collision with the wharf and the collision with the tow; and while the fault of the first tug in miscalculating her speed and striking the pier was not questioned, the Circuit Court of Appeals found the second tug also liable for not sooner recognizing the erratic action of the other, both in her course and in her failure to answer signals, as special circumstances, and for not reversing more promptly to avoid the collision. This is admittedly a border-line case, with only a two to one decision by the Circuit judges, the dissenting opinion agreeing with the lower court that the second tug was not at fault.40
A vessel completely disabled is clearly unable to comply with ordinary meeting and passing rules. She is, however, under a corresponding obligation to apprise other vessels that may approach her of her plight. Should she break down outside inland waters her condition should be advertised by the use of the required two black balls or shapes in daytime, the two red lights at night, and the whistle signals of one long and two short blasts when under way in fog.41 Should the breakdown occur under the exclusive jurisdiction of inland and pilot rules, where none of these signals is authorized, then the vessel’s helplessness should be made known to an approaching vessel by a timely use of the danger signal.42
A wholly disabled steamer being brought into her slip by two tugs damaged a vessel already moored at a pier. So far as the steamer was concerned, this was a case of special circumstances, and the liability for the damage was attached by the Circuit Court of Appeals to the owner of the tugs.43
Under some conditions an unanswered or disputed passing signal should be regarded as creating special circumstances, if it occurs when the vessels are close enough so that failure of the offender to conform may result in collision. While this doctrine does not operate in a situation where one vessel is privileged and the other is burdened until they are in extremis, it operates with particular force when neither has the right of way, as when meeting head and head, and prompt action becomes necessary to prevent collision.
(3) Presence of more than two vessels.—It frequently happens, of course, in crowded harbors that more than two vessels are involved in an approaching situation. The same thing may even happen occasionally at sea. In all such cases, special circumstances may be deemed to exist the moment any of the vessels is prevented from obeying the usual rules. Thus, under the regular rules in inland waters, if vessel A, heading north, is meeting vessel B, heading south, while vessel C is approaching from eastward to cross them, a complex situation arises; for A and B with respect to each other should alter course to the right and sound one blast, but with respect to C, B should maintain course and speed. C, on the other hand, is required simultaneously to maintain course and speed with respect to A and to give way with respect to B, and a one-blast signal by her would indicate both maneuvers, a physical impossibility. Similarly, if A is overtaking B, and C is crossing from starboard, B would be bound to hold course and speed with respect to A and to yield with respect to C. In such cases, a timely and judicious use of whistle signals will frequently solve the dilemma with a minimum delay to any of the vessels, although great care must be taken to guard against collision resulting from the acceptance by one vessel of a signal intended for another. Thus, in a situation in inland waters where one vessel is heading north to pass between two vessels proceeding south, but far enough apart so that the maneuver is practicable without a change in course by any of them, a signal of one blast will usually be exchanged between the single vessel and the one to be passed to port, and two blasts between the single vessel and the one to be passed to starboard; under international rules, with the conditions as stated, no signals would be used. A point to remember is that because special circumstances exist every vessel must, at the first evidence of confusion, be prompt to reduce her headway or to take any other steps necessary to avoid collision. It is a situation where the unpardonable sin is to maintain a dangerous rate of speed on the theory of a preconceived right of way that would apply were there only two vessels involved. As a precaution on the other side, the situation is not one of special circumstances if the relative distances apart and speeds are such that obedience to the ordinary rules will cause the vessels to encounter each other two at a time; in that case these rules must be followed. Thus where there were other vessels in the vicinity which were alleged to have hampered the movement of the privileged vessel, but they did not prevent her compliance with the steering rules, there was not a case of special circumstance;44 and in a very early decision it was held that embarrassment by proximity to vessels at anchor was no excuse for the failure of a burdened crossing vessel to keep out of the way of a privileged vessel where there was no justification for her being so close to the anchored vessels.45
A number of illustrative decisions will serve to show the treatment by the courts of this type of special circumstance.
The fact that a meeting vessel is in danger from a third which was in full view of the pilot of the other meeting vessel is a “special circumstance,” which required the latter to slacken speed or to stop and reverse.46
A tug was proceeding up the Delaware River, and a steamer was coming down on an opposite course, so that both were bound to change course to starboard. At this time a schooner was towed out from a pier and ran across the channel. As neither the tug nor the steamer could safely turn across the schooner’s bow both turned to cross under her stern as closely as possible and collided. Neither having attempted to stop, both were at fault.47
A collision between the tows of two meeting tugs in the East River was held due solely to the fault of the up-bound tug in attempting to pass through the narrow space between two descending tugs instead of passing on the port side of both.48
Where a sloop and a lighter were sailing close- hauled on the same tack, on courses varying by only 1½ points, the sloop being the leeward vessel and overtaking the lighter, and a tow lay directly across their course, the lighter was bound to tack in time to keep out of the way of the necessary tack by the leeward vessel regardless of which was privileged.49
A sheer made suddenly by an overtaking vessel to avoid the one ahead, which caused her to collide with a third vessel coming in the opposite direction before she could recover her course, was a fault.50
The situation of 3 vessels may be further complicated if additional vessels are involved, and of course the greater the number of vessels the greater the necessity of caution by each one. In general the same principle applies: that special circumstances must be deemed to exist until the regular rules can be obeyed with safety. A collision occurred on the East River when the side-wheel passenger steamer Plymouth, crowded too close to the shore by the overtaking steamer Northland when the latter passed her without an assenting signal, reversed full speed to avoid hitting the Brooklyn ferry slips and was herself bit by a following tug. A half dozen other Vessels were in the immediate vicinity, and the Circuit Court of Appeals, while condemning the Northland, also found the Plymouth, the overtaken vessel, at fault for not reversing sooner when she saw the Northland attempting to pass without signal, and knew the traffic ahead made the attempt dangerous.51
(4) Situations not specifically covered by the rules.—When any situation arises which is not specifically covered by the steering and sailing rules the rule of special circumstances governs. Thus the Circuit Court of Appeals has held that the starboard hand rule does not apply to a steamer backing out of a slip before she gets on her definite course; but the special circumstance rule applies to steamers maneuvering to get on their course.52 Again, where a tug with tow had to pass astern of a steamer backing out from a pier in a narrow channel, the special circumstance rule required the tug, which under the starboard hand rule would have been privileged, to give the steamer a wider berth, and the court found her at fault for not so doing.53 In such cases the special circumstance rule applies to both vessels until the maneuvering vessel has proceeded far enough definitely to indicate her course.54 Similarly, where a vessel is navigating near pier ends while a tug is bringing boats from a near-by slip to make up its tow the case is one of special circumstance;55 and where a tug is maneuvering with her tow in harbor waters the situation is likewise one of special circumstances, governed by art. 27 of the inland rules.56 In the Daniel McAllister case, the court held that the Transfer No. 9, a tug trying to rescue a drifting barge which had been knocked from her moorings by the McAllister, was not chargeable with a collision between the scow and a third vessel, which occurred notwithstanding her efforts. From the standpoint of the Transfer No. 9 this was a case of special circumstances.57
While there is no general rule in the statute limiting the speed of vessels, except in thick weather, every vessel is liable for any damage caused by its swells, either to property along the shore or to passing vessels and their tows. This liability is not excused by the plea that the swells causing the damage were not as large as might have been produced by a high wind, or that the speed was customary for vessels of her class,58 or that other vessels passed were not injured, or that the vessel injured could have escaped damage by taking unusual precautions. It may be said to apply whenever such speed is used as to cause injury to another vessel of a kind properly in the waters she is navigating in a proper manner.59 Thus it may become necessary to resort to the special circumstance rule where a privileged cruiser, making 25 knots, is about to cross the bow of a tug with a log raft. To escape liability for breaking up the raft with her swells, the cruiser might be obliged to swing out so as to give the tow a wider berth and to reduce her speed, contrary to the crossing rule.
It has long been a doctrine of the rules that when vessels are approaching so as to involve risk of collision, a subsequent change of course by one of them cannot change a burdened vessel to a privileged vessel. For example, a vessel overtaking another and passing her on her starboard hand cannot then swing across her bow and claim the right of way as a privileged crossing vessel. The situation, which is not one fully covered by the rules, is one of special circumstances, and the overtaking vessel crosses at her peril.60
The rule requiring privileged vessels to hold course and speed is modified whenever required by the approach of the privileged vessel to pier ends, the windings of the channel,61 or the necessity of stopping at a guard ship or a pilot ship within plain sight of the burdened vessel to report or to pick up a pilot.62 The action of the privileged vessel in slowing down or stopping is then justified under what is sometimes called the doctrine of presumable course and speed.63
The writer received the following inquiry from the commanding officer of a destroyer: two destroyers moored together and proceeding as one with both using their engines meet a third vessel end on; they alter course to starboard as required by art. 13; should each destroyer sound one blast, or only one of them? This is clearly a case of special circumstances, in which the senior ship which directs the movements of both should alone signal. If both vessels blew, unless the signals were simultaneous, the approaching vessel would erroneously receive a two-blast signal, which might easily result in a collision.
(5) Action contrary to the rules proposed by one vessel and accepted by the other.—In two of the three possible approaching situations between steam vessels the manner of passing is prescribed by the rules. An overtaking vessel may choose the side on which to pass, but a meeting vessel is required to go to starboard and a crossing vessel must comply with the rules of privilege and burden. The dangers and the occasional advisability of being a party to a departure from the usual procedure in the crossing situation have been discussed in a previous article.64 In a crossing collision in New York Harbor the privileged vessel proposed a two-blast signal, the burdened vessel assented with two blasts, and a collision followed. In finding both vessels at fault the Circuit Court of Appeals pointed out that
The situation in this circuit, after the agreement, is one of special circumstances.65
The same arguments apply when two vessels meet head and head and one of them proposes a starboard to starboard passing, contrary to the statute both in inland waters and on the high seas. As a concluding statement these arguments may be summarized as follows:
(a) A proposal to proceed contrary to law is not binding upon the other vessel.
(b) Unless and until such proposal is assented to by the other, both vessels must proceed in accordance with the rules.
(c) When such proposal is assented to by the other, neither vessel thereafter has the right of way, but both are equally bound to proceed with caution under the rule of special circumstances.
1. Art. 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary to avoid immediate danger.
Art. 29. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
2. The R.W. Burrowes (NY 1870) Fed Cas No. 12,180.
3. The R.R. Kirkland (Va 1880) 48 F 760.
4. The Manhasset (Va 1888) 34 F 408.
5. The Oregon (1895) 39 L Ed 943.
6. Joseph Golding v. The Illinois (1991) 26 L Ed 562.
7. The Norfolk (Md 1924) 297 F 251.
8. Scully v. New Jersey Lighterage Co. (CCA NY 1891) 58 F 251.
9. The Garden City (NY 1884) 19 F 529.
10. The Annie Lindsley v. Brown (1881) 26 L Ed 716.
11. The Corsica (1869) 19L Ed 804.
12. Thames Towboat Co. v. Central R R of NJ (Conn 1894) 61 F 117.
13. The Nacoochee 137 U.S. 330 (1890) 34 L Ed 686.
14. The H. F. Dimock (CCA 1896) 77 F 226.
15.The Transfer No. 10 (Del 1901) 137 F 666.
16. The Mohawk (NY 1890) 42 F 189.
17. The Stamford (Mass 1886) 27 F 227.
18. The International (Pa 1906) 143 F 468, 50 L Ed 1172.
19. The Maggie J. Smith (1887) 123 U.S. 349, 31 L Ed 175.
20. Belden v. Chase (1893) 150 U.S. 674, 37 L Ed 1218.
21. The Oregon (1895) 158 U.S. 186,39 L Ed 943.
22. The H. F. Dimock (CCA 1896) 77 F 226.
23. Art. 21, international rules, provides: Where, by Wy of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed.
Note.—When, in consequence of thick weather or other causes, such vessel finds herself so close that collision cannot be avoided by the giving-way vessel alone, she also shall take such action as will best aid to avert collision. [See arts. 27 and 29.]
24. The Hercules (SC 1892) 51 F 452.
25. The Mauch Chunk (NY 1907) 154 F 182.
26. The Kaga Maru (Wash 1927) 18 F (2d) 295.
27. The Southern (Md 1915) 224 F 210.
28. The City of Baltimore (CCA 1922) 282 F 490.
29. The James A. Lawrence (NY 1902) 117 F 228.
30. The Queen Elisabeth (CCA 1903) 122 F 406.
31. The Favorita (1871) Fed Cas Xo. 4,695.
32. Farr v. The Farnley (Md 1880) 1 F 631.
33. The Osceola (NY 1888) 33 F 719.
34. The Pacific (CCA 1907) 154 F 943.
35. The Oceania Vance (Wash 1914) 217 F 973.
36. The Munrio (Calif 1926) 11 F (2d) 900.
37. The Lafayette (CCA NY 1920) 269 F 917.
38. Sullivan v. Pittsburgh SS. Co. (1925) 230 Mich 414, 203 XW 126.
39. Legg v. the Titan (NY 1897) 79 F 117.
40. The Transfer No. 19 (CCA NY 1912) 194 F 77.
41. Art. 4, paragraphs (a) and (d), and art. 15 (e) international rules.
42. Art. 18, rule III, inland rules, and pilot rule I.
43. The Ascutney (CCA NY 1920) 277 F 242.
44. The Morristown (CCA NY 1922) 278 F 714.
45. The Hansa (CCA NY 1870) Fed Cas No. 6,038.
46. The C. R. Hoyt (NJ 1905) 136 F 671.
47. The Reading and the David Smith (Pa 1888) 38 F 269.
48. The Volunteer (CCANY 1917) 242 F921.
49. The Commodore Jones (NY 1885) 25 F 506.
50. The Alaska (NY 1887) 33 F 527.
51. The Plymouth (CCA NY 1921) 271 F 461.
52. The M. Moran (CCA NY 1918) 2S4 F 766.
53. NY Central Tug No. 27 (NY 1924) 298 F 959.
54. The Edouard Alfred (NY 1919) 261 F 680.
55. The William A. Jamison (CCA NY 1917) 241 F 950.
56. The John Rugge (NY 1916) 234 F 861.
57. The Daniel McAllister (NY 1917) 245 F 183.
58. Nelson v. the Majestic (NY 1891) 48 F 730.
59. The Asbury Park (NY 1905) 144 F 553.
60. The Horatio Hall (NY 1904) 127 F 620.
61. The Interstate (NY 1922) 280 F 446.
62. The Roanoke 11 Aspinall M.C. (NS) 253.
63. La Boyteaux, The Rules of the Road at Sea, p. 127.
64. “The Crossing Situation,” April, 1935, Proceedings.
65. The Newburgh (CCA NY 1921) 273 F 436.