Jurisdiction over cases of collision between vessels on public navigable waters is placed by the Constitution of the United States in the hands of federal courts, sitting as courts of admiralty. Public navigable waters may be defined as waters used, or capable of being used, in interstate commerce. This definition excludes from federal jurisdiction collisions occurring on a lake wholly within a state, but includes cases on a navigable river which flows in or between two states or empties into the sea or an inlet of the sea. A collision case ordinarily begins in the federal district court, from whence it may be appealed to the Circuit Court of Appeals and on proper grounds to the United States Supreme Court.
State courts have exclusive jurisdiction over a collision on a lake completely surrounded by territory of the state and concurrent jurisdiction over one occurring on any portion of public navigable waters within the state. Thus, a collision which takes place on Puget Sound may by mutual consent of the parties be adjudicated in a damage suit between the vessels’ owners in the Superior Court of the State of Washington. However, such cases are actually tried, in an overwhelming majority, in the federal courts because usually at least one of the litigants regards certain admiralty principles peculiar to these courts as favorable to his side of the case. Cases of collision on public navigable waters, unless action has already been started in a state court, may always be taken to a federal court by either party.
In American admiralty cases two important principles are applied by the federal courts. The first is the legal personality of the vessel, which is assumed to make the vessel herself the wrongdoer when collision follows a violation of the rules of the road. The action may be, and commonly is, between John Doe and the steamer So-and-So. The vessel sued or “libeled” is held until the claims against her are satisfied, unless the owners obtain her release by paying into the court an amount equal to her appraised valuation, or post a bond double the amount of existing liens. If a judgment is obtained against her, the vessel may be sold at public auction by the marshal in order that the proceeds of the sale may place funds in the registry of the court for satisfaction of the judgment. A final recognition of the vessel’s personality is seen in the fact that a marshal’s sale, properly conducted, divests her of all maritime liens against her, and starts her out with her new owners free of any old claims against her. She thus literally receives a new lease on life.
The other principle peculiar to American admiralty courts is the doctrine of equal responsibility for unequal fault. When two vessels are in collision and both of them have violated a rule, the liability of each vessel is 50 per cent of the total loss, regardless of her degree of guilt. One vessel may be guilty of what seems to be only a minor infraction and the other may have violated several rules and been flagrantly and deliberately negligent. The courts are concerned with the fact of fault but not, in most cases, with its amount. This is in marked contrast to recent practice in the English courts, where an effort is made to apportion damages with due regard to the proportion of culpability. It is a seeming adherence to the Old Testament idea of sin, that wrong is wrong and there are not different degrees of it. As reaffirmed by the Circuit Court of Appeals in a recent collision in San Francisco Bay between a moving tug and an improperly lighted dredge,
Damages from collisions between vessels both at fault must be equally divided, irrespective of degree of fault.1
Thus, if both vessels are at fault, but one is damaged to the extent of $10,000 and the other $50,000, the second vessel would recover from the first in the amount of $20,000, so that each would suffer an actual loss of $30,000. If one vessel is solely at fault, she is liable for the total damage to the other, subject only to the provisions of the Limited Liability Acts which limit the liability of a vessel to her value after the collision, plus earnings for the voyage, collected or collectible. If neither vessel is at fault, we then have that extremely rare species of collision characterized by the courts as inevitable accident, and each vessel, of course, bears her own loss, be it great or small. It is significant that only about 1 per cent of all the cases in the books come under this category. It is evident, therefore, that in a collision between vessel A and vessel B, we have only four possibilities as to liability as determined by our admiralty courts: A solely liable; B solely liable; A and B both liable, in which case the division is necessarily 50:50; and neither liable, in practice a very rare occurrence.
The principle of limited liability is a very old one, and was originally based on the high degree of risk that was inherent in any maritime venture. The theory was, and to some extent still is, that capital would be discouraged from investing in a business where an absentee agent, the master, might by his negligence involve his owners in enormous losses through disaster to a ship and her cargo, unless the amount of that loss could be limited somewhat in accordance with the old common law principle. As described by Justice Holmes of the Supreme Court in a case just after the war:
The notion, as applicable to a collision case, seems to us to be that if you surrender the offending vessel you are free, just as it was said by a judge in the time of Edward III: “If my dog kills your sheep and I, freshly after the fact, tender you the dog, you are without recourse against me.”2
Under the original statute of 1851 and its later amendments, the law in the United States now provides that where a vessel is at fault without the privity or knowledge of her owners, the limit of her liability is the value of the vessel at the expiration of the voyage, plus any earnings that have accrued or are collectible for the transportation of passengers or cargo. Under a usual form of contract providing that, once the voyage has begun, freight is payable, ship lost or not lost, it frequently happens in the case of a commercial vessel that although the vessel herself is a total loss, these earnings, technically known as “pending freight,” may amount to a considerable item. Pending freight is added to the value of the vessel at the end or breaking-up of a voyage, and is, therefore, her value after the accident causing the liability, and not her value before the accident as in English law. This value, including pending freight, may be levied upon for faulty damage to the other vessel or her cargo or for injury to personnel on either vessel. The Harter Act and the recent Carriage of Goods by Sea Act, however, excuse the vessel from liability in a faulty collision for damage to her own cargo. It will be seen that where a vessel which is solely at fault in a collision is totally lost and there is no pending freight, the injured vessel can recover nothing for damage either to herself or to her cargo.
An amendment to the Limited Liability Acts, patterned after the English law and passed August 29, 1935, changes the liability for death or personal injury to a maximum of $60 per gross register ton where the remaining value of the ship is less than that amount. The liability for damage to vessels or cargoes was not affected by this amendment.
The term “privity or knowledge of the owners” refers to cases in which damage and consequent liability are incurred through circumstances not beyond the control of the owners or managers. If such guilty knowledge can be implied to the owners or managers, limited liability cannot be invoked, and the injured vessel or cargo owner may bring all the offending owners’ resources into that suit. One excellent illustration is the case of the U.S.S. Chicago and the British freighter Silver- palm, which were in a collision in a fog off the California coast in October, 1933. The vessels sighted each other a minute before the collision and both commanding officers ordered their engines full speed astern. The Chicago was practically brought to a standstill; but the Silver palm, unknown to her master, had an early type of Diesel engine without brakes which could not be reversed at speeds higher than 6 knots until the fuel was shut off and the vessel had lost a substantial part of the headway, the result being that she struck the Chicago while still making excessive speed. On the showing of the government that this defect was known to her owners, but they had not warned the master, who was making his first voyage on the vessel, of the conditions, both the District Court and the Circuit Court of Appeals denied the Silverpalm’s petition for limitation of liability, thus opening the way for the United States to levy on the entire fleet of her owners, if necessary, to make up the difference between the value of the damaged Silverpalm and the amount of the judgment.3
The doctrine of personality of the vessel is modified with respect to navy and other publicly owned vessels, in that it is contrary to public policy to permit such vessels to be libeled and taken into custody of the marshal and thus held out of service. However, the old theory that “The King can do no wrong” is never used as a defense in cases of collision between a ship of the United States Navy and a merchant vessel, even in time of war. Instead, the government permits itself, under a special statutory provision, to be sued as an owner in personam, and the damage sustained by both vessels is adjudicated exactly as it would be done were the action in rem between the vessels themselves. Indeed, so scrupulously has the United States accepted its responsibility in these cases that it has paid losses in full when the collision occurred because the naval vessel was patrolling without lights and fog signals, due to actual war conditions.4
At the beginning, it will be well to have in mind certain general principles which govern the action of the courts in determining collision liability. The first of these is that the rules of the road applicable to a particular case are in no sense optional, but are for the most part absolutely mandatory. The mandatory nature of the rules is in a sense indicated by the fact that in the international rules alone the word shall is used 130 times as compared with 15 times for the optional may. To avoid liability for a collision the requirements must be obeyed. The courts will excuse a departure from the rules on two grounds only, and one of these, to avoid immediate danger, is provided for by the rules themselves.5 Departure from the rules for any other reason, or for no reason at all, must be justified on the ground that while there was a technical violation, the circumstances were such that it could not possibly have contributed to the collision. As said by the Supreme Court, not only once but in substance many times,
But when a ship at the time of collision is in actual violation of a statutory rule intended to prevent collision, 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.6
It will be recognized that a disregard of any rule on the basis of convenience, courtesy, good nature, or disbelief in its efficacy places the navigator under a burden of proof that it is almost impossible for him to carry.
In the second place, not only must the rules be obeyed, but the action prescribed by them must be taken in ample time to carry out their purpose. It must be remembered that the rules are intended not only to prevent collision but to prevent serious and imminent risk of collision. This precept applies with particular force to the use of sound signals, which should always be given in time to be corrected if misunderstood, or as one judge expressed it, “in time to maneuver out of a misunderstanding.” Obedience to the letter of the rule is not obedience to the spirit of the rule unless it is rendered before the vessels are in dangerous proximity, in a sufficiently timely manner so that each vessel is aware of the other’s intentions in time to conduct herself in accordance with them and aid in carrying them out.
A third principle which it is essential to remember is that the rules apply with equal force to all vessels on public navigable waters without regard to flag, ownership, service, size, or speed. A so-called “privileged” vessel is as much under the obligation to hold course and speed as is the “burdened” vessel to keep out of her way. No rights or exemptions, except those conferred by the rules, apply under American law to naval vessels, passenger liners, ferries, or towboats with tows, and the same steering and sailing rules govern the U.S.S. Saratoga and a 30-foot trawler. To give the rules their maximum effectiveness this is, of course, precisely as it should be.
A fourth principle of the rules too often overlooked by the mariner in his seagoing practice of collision law is that to avoid liability he must know not only what the rules applicable to a given situation provide but what the federal courts have interpreted them to mean. Judicial interpretation has, in the history of the rules, performed three important functions. First, it has determined the legal meaning of certain phrases not defined in the rules themselves, such as moderate speed, efficient whistle or siren, flare-up light, proper lookout, special circumstances, immediate danger, ordinary practice of seamen, and risk of collision; it is in accordance with the meanings thus established that these terms are construed in collision cases. Second, it has filled certain gaps in the rules, sometimes modifying the statute to do this. For example, art. 28, international and inland rules, provides that three short blasts when vessels are in sight of each other shall mean, “My engines are going at full speed astern,” while the courts have required the same signal to be given when the engines are going at less than full speed astern or when one engine is going ahead and the other astern, with the vessel actually making sternboard.7 Again, the courts have determined the proper signals where vessels approach each other in a collision situation stern first, a point on which the rules are silent. Third, judicial interpretation has been used not only to eliminate pilot rules found contradictory to the inland rules, but to reconcile occasional inconsistencies or conflicts in the latter. This is illustrated in the treatment by the courts of the apparently inconsistent sections of art. 18, inland rules, in which rule III requires the danger signal by an approaching vessel when she fails to understand the course or intention of the other from any cause, and rule IX of the same article provides that in fog, when vessels cannot see each other, fog signals only must be given. The courts have decided, in effect, that the danger signal in inland waters must be included as a fog, as well as a clear weather, signal.8
Whatever the mariner thinks of the legal setup which has the effect of giving the courts more authority over the rules of the road than the supervising inspectors who enforce them through the local inspectors and supplement them with the pilot rules, he must obey the law as he finds it, and that means in practice, as the admiralty judges interpret it. Notwithstanding the fact that in this country we do not have special admiralty courts, but any federal judge may be required to hear a collision case, it will be found that the decisions have been, as a whole, sound in seamanship as well as in law. Of course, the most experienced judges are not infallible, and not infrequently Circuit Courts of Appeal, co-ordinate in rank, will differ on some disputed point of collision law until the issue is settled by the Supreme Court. The rules have existed in substantially their present form for so many years that most doubtful questions have long since been decided by that august tribunal and the law for the most part may be regarded as pretty well settled. It remains only for the mariner to familiarize himself with the gist of the important ruling decisions, many of which are set forth in textbooks dealing with the subject.
A fifth principle to be borne in mind by the mariner is that he must always be careful to observe the particular rules which apply in the locality of his vessel during the approaching situation. There are important differences in the rules to be followed on the high seas and in the inland waters of the United States, these differences extending to sound signals as well as to running lights. A further complication lies in the fact that different statutes subdivide our inland waters into 3 sections, with a distinct set of rules for each, and the statutory rules are supplemented in each case by a corresponding body of pilot rules, so-called, formulated and issued by the Bureau of Marine Inspection and Navigation. The 3 sections of inland waters referred to are (1) the Great Lakes and connecting and tributary waters as far east as Montreal; (2) the Red River of the North and rivers whose waters flow into the Gulf of Mexico and their tributaries; (3) all other inland waters of the United States. In each of these sections, the pilot rules, except when they are in conflict with the statutory rules, have coextensive jurisdiction with them, and the mariner must therefore be equally familiar with both. Still another special set of inland rules governs the navigation of all vessels in the Panama Canal Zone. The significant point to which attention is drawn here is that obedience to the wrong set of rules, where they are in conflict, constitutes just as serious a breach as does the deliberate disregard of the law altogether. To illustrate, the use of a single short blast of the whistle by a privileged vessel holding her course and speed in a crossing situation is proper in certain inland waters, as provided in the pilot rules, but might make the vessel solely liable for a collision which followed the use of the same signal on the high seas, where one short blast indicates a change of course to the right.
The present international rules were drawn up by a conference of representatives of the maritime nations of the world at Washington, D. C., in 1889, and subsequently adopted by the respective nations concerned. These rules superseded international rules introduced in 1863 by England and France, and similar rules adopted by the United States in 1864, which in turn had been adopted, with amendments, before 1886 by the United States, England, France, Germany, Belgium, Norway, and Denmark. In the United States they became effective in 1897. The international rules were again amended at an international conference meeting in London in 1929, and when ratified as amended by the individual nations concerned, become the law of the sea to all vessels on the high seas, that is, outside the limits of excepted inland waters. Signatories of the 1929 convention included, in addition to the nations already named, Australia, Canada, Spain, Finland, Irish Free State, India, Italy, Sweden, Netherlands, Union of Soviet Socialist Republics, and Japan.
It will be noted from the enacting clause of the statute adopting the International Rules of 1889 that these regulations for preventing collisions at sea shall be followed by all public and private vessels of the United States not only upon the high seas but in all waters connected therewith, navigable by seagoing vessels.8 This would seem to include harbors, the larger rivers, and navigable inland waters in general except lakes not connected with the sea. How- over, art. 30, international rules, expressly provides that:
Nothing in these rules shall interfere with the operation of a special rule, duly made by local authority relative to the navigation of any harbor, river, or inland waters.
The enacting clause of the inland rules specifically states, and thus saves the courts the necessity of finding, that such inland rules “are hereby declared special rules duly made by local authority” and provides a penalty for failure of any vessel subject to their jurisdiction to obey either the inland rules or the pilot rules authorized by the inland rules. Local harbor regulations have also been upheld by the courts as similar special rules duly made by local authority; for example, the rule in New York Harbor requiring all vessels going up or down the East River to navigate it in mid-channel. It is therefore plain that the international rules cannot be applied to the inland waters of the United States, except with respect to possible points covered on which the inland rules, pilot rules, and local harbor regulations are all deficient or silent.
The rules for the Great Lakes and the St. Lawrence River as far east as Montreal were passed by Congress in 1895, and apply to all vessels in the waters indicated. The rules for the Red River of the North and rivers emptying into the Gulf of Mexico, and their tributaries, were passed by Congress in 1897, as were the so-called inland rules which apply to all vessels in such of the inland waters of the United States as are not covered by the two preceding sets of rules. The pilot rules applying on the same waters as the inland rules have been promulgated by the supervising steamboat inspectors from time to time since the adoption of the latter under authority of section 2 of the inland rules, as amended, May 27, 1936, reading as follows:
That the supervising inspectors of steam vessels and the Director of the Bureau of Marine Inspection and Navigation shall establish such rules to be observed by steam vessels in passing each other and as to the lights to be carried by ferryboats and by barges and canal boats when in tow of steam vessels, and as to the lights and day signals to be carried by vessels, dredges of all types, and vessels working on wrecks, by (or) other obstruction to navigation or moored for submarine operations, or made fast to a sunken object which may drift with the tide or be towed, not inconsistent with the provisions of this act, as they from time to time may deem necessary for safety, which rules when approved by the Secretary of Commerce are hereby declared special rules duly made by local authority as provided for in article thirty of chapter eight hundred and two of the laws of eighteen hundred and ninety. Two printed copies of such rules shall be furnished to such ferryboats, barges, dredges, canal boats, and vessels working on wrecks, and steam vessels, which rules shall be kept posted up in conspicuous places in such vessels, barges, dredges, and boats.
Under this section the pilot rules for inland waters, many of which were in use long before the inland rules, were given coextensive jurisdiction with those rules, subject only to the legal restriction expressed in the act that they must not conflict with the inland rules. Inasmuch as the inland rules are statutes passed by Congress, their priority over the rules of the inspectors would probably have been recognized by the courts even without the phrase of section 2 specifically limiting their authority to provisions not inconsistent with the provisions of this act. Occasionally it has seemed to the courts that a pilot rule has overstepped this authority and conflicted with the meaning or intent of a statutory rule, and they have accordingly invalidated the pilot rule. An example of this was the old pilot rule IX, which provided a 2-blast signal in inland waters to be exchanged in the crossing situation between the burdened vessel and the privileged vessel when the former could cross the bow of the latter with safety. In 1909, two years after this rule was adopted, it was thrown out by the federal court as inconsistent with art. 19, the statutory crossing rule. As said by the district judge:
Rule IX of the Board of Inspectors, approved by the Secretary of Commerce and Labor, Feb. 25, 1907, which permits the vessel having the other on her starboard hand to cross the bows of the other if it can be done without risk of collision, is invalid, as repugnant to the starboard hand rule.10
The International Rules of 1889 were probably the most efficient set of rules for the prevention of marine collisions that has ever been drafted. As pointed out in the Naval Institute Proceedings:11
It would be presumptuous for any individual to theorize as to the soundness of the international rules. The men who drafted them after most comprehensive study and debate were eminently practical ship operators, admiralty lawyers, and high naval officers, the ablest of their time; they did their work wisely and well; and the remarkable body of rules which they formulated has thus far stood the test of time the world over. One cannot read the record of the proceedings of the international convention without being impressed again and again by the delegates’ remarkable grasp of the problems involved, their conscientious attention to detail, and the collective brilliance of their final achievement. There is one factor, however, over which they had no control, and that is the passage of time. When the international rules were passed, a 3,000-ton ship was a very large vessel, and no steamship had yet made a speed of 18 knots. The world’s record for the longest day’s run was still held by a sailing ship. Today we have commercial ships of 30,000 tons and upwards making nearly 30 knots, and naval vessels with considerably higher speeds. At the present rate of progress it is becoming common for vessels to approach each other at a combined speed of from 40 to 60 miles an hour, or more than twice the speed of 40 years ago. The implication is that if the minimum visibility of running lights prescribed in 1890 and the audibility of whistle signals as construed accordingly by the courts were proper, then those minima should certainly be increased now in order that the navigator may still have the same time of preparation for meeting a vessel after discovering her. [The London convention of 1929 recognized this need by slightly increasing the range of lights for small boats, pilot vessels, fishing craft, and vessels at anchor, but the minimum visibility of ordinary running lights was left at 5 miles for white lights and 2 miles for side lights.]
However, it is not here, but in the numerous differences between the requirements to be observed by the same vessel when she is in inland waters and when she is outside these waters that the chief weakness in our present rules lies. That many of these differences are far more than mere technicalities is apparent with even a casual reading of the rules. The writer is unable to suggest a single good argument in favor of a system which makes it necessary for a vessel to change the rules governing her conduct in a collision situation whenever she crosses an imaginary line bearing so many degrees from such and such a point. On the other hand there is much to be said in favor of complete uniformity of the rules. The mariner is not legally trained and cannot appreciate fine distinctions of law; in the naval service at least he has so many duties other than those connected with navigation to perform and so much studying to do to keep up with them that he will do well to keep thoroughly posted on one set of rules of the road, and the same argument applies in some degree to the merchant marine officer. At night or in thick weather, the line separating inland waters from the high seas cannot be determined with any degree of accuracy, and an approaching situation is the last place for the mariner to turn his attention from the other vessel to cut in his position in order to be sure which rules apply; numerous border-line situations occur wherein the approach one vessel is on one side of the line, under international rules, and the other on the opposite side, under inland and pilot rules; and finally, there is the ever-present likelihood of a mistake, through the personal equation, in choosing the right rules at the right time. The use of the international rules in Canadian inland waters, including the tortuous inside passage to Alaska, where they have been applied for many years with a surprisingly low collision rate, should be an effective answer to the argument that those rules are inadequate except on the high seas. If there are certain intrinsic advantages in the inland rules, then it is the writer’s opinion that they may be most safely enjoyed by having them incorporated in the international rules, not by restricting their application to inland waters and needlessly confusing the mariner who thus has to obey different rules inside and outside an invisible dividing line.
However, changes in law come slowly, particularly in the field of admiralty, which has only in recent years showed a noticeable tendency to undergo change in the face of established tradition. While it is conceivable that Congress might be persuaded to abolish the inland and pilot rules and follow the Canadian example of putting in their stead the international rules, there seems to be at present little likelihood that this will be done. We move very slowly in these matters, as illustrated by the fact that the rules adopted by the international convention of 1889 did not become effective in the United States until 1897, and the amendments to those rules adopted by the London conference of 1929 are not yet (May 15, 1938) on our statute books, although the Senate ratified the convention in 1936. Unless and until unification of the rules is an accomplished fact, the professional mariner can protect himself only by making and keeping himself absolutely familiar with the essential details of the international, inland, and pilot rules, with particular emphasis on their points of difference and on interpretive court decisions, and for good measure he must undergo an additional course of sprouts if his vessel goes into the Great Lakes, or up the Mississippi River, or through the Panama Canal, or other inland waters.
1 The Marian (1933) 66 F (2d) 354.
2 Liverpool Brazil, and River Plate Steam Navigation Co. vs. Brooklyn Eastern District Terminal (1919) 64 L. Ed. 130.
3 Decided October 28, 1937. The Circuit Court found both vessels at fault, thus halving the damage which could be collected under the District Court decision.
4 Watts vs. U.S. (1903) 123 F 105.
5 Special Circumstances, arts. 27 and 29, international and inland rules
6 The Pennsylvania (1873) 19 Wall 125.
7 The Sicilian Prince (CCA NY 1903) 128 F 133; the Deutschland (CCA NY 1903). 129 F 964; the San Juan (Cal. 1927) A.M.C. 384.
8 The Celtic Monarch (Wash. 1910) 17 F 1006.
9 See enacting clause.
10 The Pawnee (NY 1909) 168 F 371.
[1]1 “Critique of American Collision Law,” September, 1933, Naval Institute Proceedings.