An overtaking vessel is defined in the rules as a vessel which approaches another from a direction more than two points abaft her beam. Article 24, identical in the International and Inland Rules, describes the overtaking situation in the following clear-cut terms:
Article 24.—Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel.
Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is, in such a position, with reference to the vessel which she is overtaking that at night she would be unable to see either of that vessel’s side lights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.
As by day the overtaking vessel cannot always know with certainty whether she is forward of or abaft this direction from the other vessel she should, if in doubt, assume that she is an overtaking vessel and keep out of the way.
It will be noted that the rule attempts to define the overtaking approach at night in terms of the visibility of side lights, and the well-known imperfection of these lights will, of course, cause some fluctuation in the actual limits of the overtaking approach in terms of arc of the compass, even if the overtaken vessel is proceeding on a perfectly steady course. However, the exact angle of approach cannot always be determined even in daylight, as frankly conceded by the rule in the admonition to regard all doubtful cases as subject to the overtaking rule.
There are really two characteristics necessary to any overtaking situation: (1) the overtaking vessel must be proceeding in the same general direction as the other, that is within six points of the same course; and (2) her speed must be greater. Naval vessels in column are neither overtaking nor overtaken, in the legal sense, as long as their speed remains uniform, though of course a vessel joining such a column is an overtaking vessel until she takes up her position. From the nature of the case, it will be seen that the speed of approach in this situation tends toward the difference in speed of the two vessels, and will be exactly that difference when the vessels approach on identical courses. This fact gives more time for decisive action to avoid collision, and, of course, usually lessens the force of the blow when collision finally occurs. An ocean vessel has, however, been sunk by being overtaken and struck on the quarter by another vessel making only 3 or 4 knots more speed.
It will be seen from the rule that an overtaking vessel has the option of passing on either side of the overtaken vessel, subject only to the modification that in a narrow channel the overtaken vessel should be on the right-hand side of the channel and it would ordinarily be better seamanship in such waters for the overtaking vessel to pass on the left. The overtaking situation thus becomes the only one of the three approaches where any discretion is given as to the lawful manner of passing. Meeting vessels must pass port to port, and in the crossing situation the vessel having the other to starboard must keep out of the way. But while the rule does not prescribe any specific maneuver, this situation is, to a greater degree than any other, one of privilege and burden, and the obligation is put upon the overtaking vessel to keep well clear, not only throughout the approach and during the actual passing, but long enough afterward so that she is in the most literal sense “finally past and clear.”
As pointed out in another article, we must bear in mind the fundamental difference in the meaning of clear weather sound signals in the overtaking situation as in the meeting and crossing approaches. Under International Rules, A overtaking B and desiring to pass her does not signal unless the approach will be sufficiently close to make advisable a change of course to clear her. Then A blows one blast if changing to the right and two blasts if changing to the left, in accordance with Art. 28. B is required by Art. 21 to hold course and speed, and cannot properly give any whistle signal. When A has reached a position well ahead of B, so as to be past and clear within the meaning of the rule, she may return to her course, using the proper signal to indicate the direction she now turns and once again receiving no answering signal from B.
In the same situation in inland waters, on the other hand, under Inland and Pilot Rules whistle signals must be given and answered if the vessels will at any time in the approach come within half a mile of each other, whether a change of course by either is involved or not. Under Art. 18, Rule VIII, Inland Rules, A signifies a desire to pass to starboard with one blast, or to port with two blasts, and B is required to answer promptly, returning A’s original signal as assent to the proposed maneuver or blowing the danger signal as dissent to it, and in the latter case A is then expressly forbidden to pass until B’s subsequent willingness is made known by a proper signal to indicate on which side she desires to be passed. One short blast by B would mean for A to pass to port and two short blasts by B would mean for A to pass to starboard; and either signal would have to be acknowledged by A by a similar signal. When A is finally past and clear she may come back to her original course, but no whistle signal such as is required by Art. 28, International Rules, is provided for announcing the maneuver in inland waters. Perhaps the most important difference to remember in the signal requirements of this situation on the high seas and in inland waters is that under International Rules B cannot properly use her whistle at all, while under Inland and Pilot Rules she must whistle, and has repeatedly been held at fault for failure to answer A’s proposal by signal one way or the other.
The overtaking rule has long been recognized by the courts as applying not only in restricted waters but wherever an attempt to pass might mean risk of collision. An early case in point was a collision on a winter night in the wide open waters of Narragansett Bay in which the tug M. E. Luckenbach, with a tow 2,500 feet long consisting of two coal-laden barges, overtook and passed the tug Cora L. Staples with a similar tow of three barges. The Staples, with the heavier tow, was making about 4 knots, and the Luckenbach, at 6 or 7 knots, overtook and passed the other on the starboard hand without any signal and then crowded to port in such a manner that the hawser to her barge fouled the wheelhouse of the Staples. Despite frantic danger signals from the latter, the Luckenbach held on while her heavy hawser ripped off the wheelhouse roof, smokestack, and mast of the Staples, seriously injured the master, and knocked the mate overboard. The mate was picked up by a passing vessel after clinging to the wreckage of the wheelhouse an hour and a half. Both he and the master libeled the Luckenbach and the first barge in her tow. The vessels had been on nearly parallel courses, and in holding the Luckenbach at fault for close-shaving, for changing course toward the other when passing, for not signaling as required by the Inland Rules, and for attempting to pass without the consent of the Staples, and the barge for contributory fault in sheering to port as she was passing and thereby causing the hawser to foul the Luckenbach, the court answered the plea of the Luckenbach that Art. 24 was meant for narrow channels by saying,
I do not think that the rule was designed for narrow waters only but for any waters where an attempt to pass would involve danger of collision.
Similarly, the rule was invoked against a steamer which overtook a sailing schooner bn the open ocean 60 miles northeast of Cape Hatteras on a dark, overcast night, and collided with her after she failed to show a torch, as at that time required. While the schooner was unquestionably at fault for this omission, the steamer was held equally at fault when it developed that the mate sighted the schooner less than half a point on the bow, knew from the invisibility of side lights that she was on the port tack, and could easily have cleared her by executing left rudder. The court said:
Though the overtaken sailing vessel failed to exhibit a torch, as required, the burden is still upon the overtaking vessel to show that she used all reasonable diligence to avoid the other.
An examination of the cases indicates approximately five times as many collisions in the overtaking situation in inland waters as on the high seas. The writer believes that this is not due to superiority of the International Rule, but rather to the fact that the majority of such collisions occur in narrow channels, where the restricted width causes the overtaking vessel to attempt too close a passage and poor steering, current, or the effect of suction makes one vessel sheer into the other. Most narrow channels, particularly dredged channels, come within the jurisdiction of Inland and Pilot Rules, and traffic is much much more likely to be congested. Under such conditions any superiority would seem to be in favor of the Inland and Pilot Rules, which make the exchange of signals a condition of a proper passing.
There is an important legal significance in this requirement as interpreted by the courts. In one sense it is doubtful whether the prohibition to pass in the face of B’s dissenting signal really adds anything to the obligation of A. It must be remembered that if B maintains her course and speed as required under the rule all the burden of avoiding collision by keeping sufficiently clear is put upon A whether she has B’s permission to pass or not, and that in the event of collision under such circumstances A would ordinarily be solely liable anyway. To be sure, she would violate one more rule to pass in the face of B’s danger signal, but if guilty already on the charge of passing too close, this could not, under American admiralty law, add to A’s liability. In another sense, however, the requirement in inland waters that A obtain by signal permission to pass the overtaken B has a most important bearing on the duty of each vessel to the other. It means that while on the high seas an overtaken vessel incurs the obligation of a privileged vessel to keep her course and speed from the moment the overtaking vessel approaches near enough to involve risk of collision until the latter is finally past and clear, within the jurisdiction of Inland and Pilot Rules the overtaken vessel is under no such obligation unless and until she assents to the overtaking vessel’s proposal to pass. If the overtaking vessel neglects her duty to signal, the overtaken vessel is free to reduce speed or alter course, however abruptly, provided, of course, she does not delay such action until the other vessel is so close that it would make collision inevitable, which would violate the rule of good seamanship. But, as held by the Supreme Court in a very early case on the Mississippi above New Orleans, so long as the overtaking vessel can avoid collision by reversing or sheering out, she must pay for her silent approach with full liability for a collision resulting from an unexpected change in course or speed by the vessel ahead.
The best discussion of this point in recent years is by Judge Learned Hand, of the Circuit Court of Appeals of New York, m the case between the steam lighter Industry and the tug Viking, which were in a daylight collision in Kill Van Kull off Myers Wharf at Port Richmond. The Industry was overhauling the Viking on a parallel course 50 or 60 feet to starboard of her and was about 300 feet astern when the Viking swung across her bow to go into her wharf. Although the Industry had not signaled, the Viking saw her and announced her intention of crossing by a 2-blast whistle, a technically improper signal. The Industry, instead of stopping, held her speed and likewise executed right rudder following the Viking around until she was boxed in by the wharf alongside which the tug was attempting to land, when she reversed too late to avoid collision and struck the tug on the quarter. There was no question of the fault of the Industry, but her owners appealed from the decision of the district court on the grounds that the Viking was at fault for her change of course while being overtaken. In denying the appeal and holding the Industry solely at fault, despite the improper signal of the Viking, which was not found to have contributed to the collision, the court said:
Article 24 puts the burden upon the overtaking vessel to keep out of the way till she is past and clear and Art. 21 in general provides that, whenever one vessel must keep out of the way, the other shall keep her course and speed. Therefore, taken without recourse to the other rules it might be inferred that, whenever one vessel is in fact overtaking another, the vessel ahead must hold her course and speed. However, Art. 18, Rule VIII, further modifies the relative duties when each vessel is a steamer. If she would pass, an overtaking steamer must signal, and before passing must get the consent of the steamer ahead. The rule concludes by saying that the steamer ahead shall in no case attempt to cross the bows of the overtaking steamer or to crowd upon her course. It is perhaps possible to read this language as referring to the period before the exchange of signals as well as thereafter, but it seems to us unreasonable to do so. In the first place, so construed, it would add nothing to the general duty prescribed by Art. 21. Rather, we think it intended to make clear that it is only after the exchange of signals that the duty of the vessel ahead begins at all.
This is besides the only reasonable construction. The vessel ahead is usually overtaken because she has less speed and cannot avoid it; the overtaking vessel may always slow down and keep astern. The rules provide for no signal by which the overtaken vessel may declare her purpose to change her course and speed, and, if she is bound to keep both, she is, as it were, frozen in her navigation from the moment that risk of collision begins, merely because the overtaking vessel begins to overhaul her, something which it is not always easy to ascertain. Thus, she may be compelled to abandon her intended destination, or to pass her berth, merely because the overtaking vessel insists upon passing. It is therefore fair to suppose that her consent is required, not alone because she may think the passing dangerous in any case, but also because she may need to change her course for her own purposes, to which the interests of the overtaking vessel can hardly be considered equal. The latter should therefore be obliged to hold herself in check against unexpected changes of course, and be prepared to meet them, until by the consent of the vessel ahead, she gets assurance that it is convenient for her to hold on.
And after pointing out that this right of the overtaken vessel to change course or speed in the absence of a signal from the overtaking vessel is questionable only when the latter has crept up so close that any change by the former would instantly create a situation in extremis, the court found that
while it remains possible for the overtaking vessel by proper navigation to accommodate herself to a change in course or speed of the vessel ahead, that vessel is not held to any duty, but may execute her purpose, regardless of the overtaking vessel and in reliance upon her duty to keep out of her way. That is the situation at bar, for the Industry, by starboarding or backing, could, if alert, have avoided collision as soon as the Viking began to port.
In numerous decisions this doctrine has been applied, and in several cases where the overtaking vessel was held solely at fault the Circuit Court of Appeals has gone so far as to excuse the overtaken vessel from discovering the presence of the other vessel before the collision. Thus in a case off Pier 4 in New York Harbor, in which a rapidly overhauling steamer which had not announced her approach rammed and sank a small tug which was deflected from her course somewhat by the action of the tide, the appellate court held that,
An overtaken vessel receiving no signal from an overtaking vessel is not required to look behind before she changes course however abruptly. ... If the overtaking vessel without signal comes so close to the overtaken vessel that a sudden change of course by the latter may bring about a collision, the fault is that of the overtaking vessel.
However, this approval of what under some circumstances would be an improper lookout aft should not be accepted too literally. It really amounts to little more than a refusal to inculpate a vessel which is flagrantly run down by another vessel having no right to overtake her without a signal and still able, by smart maneuvering, to avoid the collision. It merely says that with respect to a particular offending vessel approaching from more than two points abaft the beam there is no obligation to sight her before hearing her required whistle. It should not be construed as a blanket provision removing the obligation of a proper lookout astern with eyes as well as ears. On the contrary, it is distinctly poor seamanship to change course or reduce speed materially without first checking the situation all around the compass. There may be an overtaking vessel under sail which is not under the signal requirement of Art. 18, Rule VIII, and has no means provided of requesting passage. (Similarly the rule does not apply to a steamer overtaking a sailing vessel in inland waters because the sailing vessel has no way of assenting or dissenting.) As already pointed out, one steamer overtaking another, whose whistle has not been blown or whose signal has not been heard, may be so close to the stern of the other that a sudden change in the action of the vessel ahead may make collision inevitable, in which case the latter will be liable for at least half damages and may not be able to recover from the other vessel at all.8 An overtaking vessel following another in a narrow channel and for the time being having no intention to pass is ordinarily under no obligation to signal. The point is that inasmuch as we are bound to observe a vessel astern under some circumstances the only safe procedure is to look astern under all circumstances where a change in maneuver can be followed by an overtaking collision. As long ago held by the Supreme Court in a case where a steamer was overtaking a schooner in Delaware Bay, and sank her when she tacked unexpectedly across the steamer’s bow,
While a man stationed at the stern as a lookout is not at all times necessary no vessel should change her course materially without having first made such an observation in all directions as will enable her to know how what she is about to do will affect others in her immediate vicinity.
The schooner was solely liable for the collision.
If the overtaking vessel in inland waters signals one or two blasts and the vessel ahead does not answer, it is her duty to repeat the signal. In a very early case it was held that this was necessary, and that even when the signal is repeated and unanswered, the overtaken vessel’s silence may not be regarded as acquiescence. If the overtaking vessel persists in passing without receiving the necessary response, both vessels are breaking the rule and will divide the damage. There is thus effective a requirement so rigid with respect to the overtaking vessel in inland waters that unless she signals and receives permission to pass, the only question usually left the courts to decide after a resulting collision is whether she shall pay all the damages or only half of them.
The overtaking rule has been held to apply in a number of cases having certain peculiar points of interest outside the usual run of one vessel trying to pass too close to another on the same course. As early as 1886 a state court in New York brought out the fact that a ship is an overtaking, and not a crossing, vessel within the meaning of the terms used in the navigation rules although there is a difference 3 three points in the courses of the two vessels. (Of course, under the rule the vessels might differ by any amount less than six points.) The George W. Elder, an ocean steamer, which approached on the quarter of a tug engaged in picking up a tow of barges on the Columbia River at night and sank the tug, was solely at fault for violation of the overtaking rule, although the tug, which was properly lighted, was stationary at the moment. In an earlier case it was held that a steam vessel coming up with another from a direction more than two points abaft the beam does not cease to be an overtaking vessel merely because during the approach the overtaken vessel takes off all her headway and is at the time of collision actually going astern. The overtaking vessel was liable for not keeping clear. Similarly, a schooner under sail which ran into the hawser of a barge tow half a mile long in Chesapeake Bay, cutting the hawser in two, was in fault for not keeping clear as an overtaking vessel, and liable for the salvage of two of the barges, although during the approach the tow was either motionless, or, because of a 5-knot adverse tide, possibly making sternboard. A steamship which overtook another and attempted to pass her while rounding Corlears Hook, near New York, without obtaining her consent in violation of the overtaking rules and the state law limiting speed at this point, was held liable in part for a collision, between the overtaken vessel and a tug, caused when the steamship’s wrongful acts crowded the overtaken steamer too close to the shore and compelled her to reverse into the following tug; the overtaken steamer was also at fault for failure to recognize the critical situation and take preventive action sooner, as required by the general prudential rule. In a daylight collision on the East River, an overtaking tug with tow which was warned by the exchange of 2-blast signals of an overtaken tug with tow and a large steamer they were meeting, was held solely at fault when she failed to conform her movements to the announced change in course by the tug ahead and the two tows were brought into collision. A ferryboat starting out of her slip with her bow pointing astern of a steamer and then swinging across the steamer’s bow in a circling course was held to be an overtaking vessel. However, in an old case in the East River, when a steamer had a large steamship to starboard in the act of turning around in such a way as to cross her course, it was held that the larger vessel was entitled to have room to maneuver, and the steamer was at fault when she got across her bows and then claimed to be an overtaken vessel.
The overtaking rule was held not to apply in a case where it was doubtful whether two tugs were crossing or overtaking, each insisted on the right of way, and both proceeded without regard to the danger of collision. When they collided both vessels were found at fault. In another case, a steamship and a steam pilot boat started almost together, and after first one and then the other had forged ahead, they entered a narrow pass abreast without exchanging signals and were brought into collision when a sudden current sheered the steamship into the pilot boat. Here again the overtaking rule was found not to apply, and both vessels were quite properly held at fault. In a third case, where two steamers were originally on meeting courses but one of them rounded to, to make a landing, and at the time of collision had no definite course, her maneuver did not create an overtaking situation, but rather one of special circumstances and this case, like the two preceding, was really governed by Art. 27.
An overtaken vessel is ordinarily under no obligation to make an initial signal to a vessel coming up astern if there appears to be ample room for her to pass in safety. It was so held when two tugs with tows in Baltimore Harbor on slightly converging courses, but with one a little in the lead, gradually drew together in broad daylight and finally collided. It developed that the master of the overtaking tug was partially blind in one eye and did not see the other vessel until too late to prevent collision; his tug was, of course, fully liable for the damage. But it is clearly the duty of the overtaken vessel in inland waters to sound the danger signal if she actually sees that collision is imminent, in this situation as in all others. In a somewhat unusual case the steamship Howard on her regular run from Baltimore to Providence overtook the seagoing tug Charles F. Mayer, with two laden coal barges in tow, on a clear night near Point Judith and sank one of the barges, drowning three of the crew. The watch of the Howard had just been changed and the relieving watch officer had his attention suddenly attracted to port by sighting the red light of a steamer on opposite course altogether too close for comfort. He immediately changed course sharply to the right, which cleared the other steamer, but brought him into dangerous proximity with the barges of the Mayer, which he had not noticed. The barges were in tandem on a very long towline, with about a thousand feet between them, and the mate of the Mayer, seeing by the Howard’s lights that she was heading for the barges, called the captain instead of taking preventive action himself. The captain rushed to the bridge and, instead of blowing the danger signal to warn the Howard, immediately slowed his engines in the hope that the towline between the barges would sag and that the Howard would pass clear above it. Of course, this was a violation of his duty, knowing the other vessel’s presence, to keep course and speed, and on showing that the mate had deferred proper action until the captain had taken charge, this could not be excused as an error in extremis. The Howard’s fault was obvious, but the Mayer was also held in fault, not only for her untimely reduction in speed, but for her failure to sound the danger signal as soon as the danger became apparent, and for failure to have an officer on watch who was qualified to take the decisive action required instantly.
When an overtaken vessel in inland waters assents to the proposal of an overtaking vessel to pass, she neither yields her right of way in the slightest degree nor assumes responsibility for the safety of the Maneuver; and the fear that either of these results will follow is not an excuse for failure to answer. As already pointed out, in inland waters she must answer, and promptly. She must examine the situation ahead as thoroughly as conditions permit, and immediately express the assent or dissent provided by law. As said by the Circuit Court of Appeals:
The passing signal from an overtaking vessel is not solely a request for permission to pass. It also asks for information which the overtaking vessel is entitled to have. When the overtaken vessel knows of conditions which may make the passing unsafe it has no right to refuse to inform the overtaking vessel of such conditions, and if it does refuse it cannot throw the entire blame for an accident upon the other vessel.
However, this should not be taken to mean that the mere act of assenting to the proposal insures a safe passage, and inculpates the overtaken vessel in an action following collision. The general rule is that it does not inculpate her at all. In narrow channels, where these collisions usually take place, she can be charged with fault for her assent only when it is given in the face of conditions which ought to make it apparent that a safe passage is fraught with serious peril, and is almost certain to cause a collision. In other words, she cannot deliberately lead the following vessel into a trap and escape liability. But if, in her judgment, the overtaking vessel can, with the exercise of a high degree of skill, successfully make her way past, then she is legally justified in giving her signaled consent to the attempt. The burden of clearing her is left almost entirely to the overtaking vessel. As said in a very old case,
The approaching vessel, when she has command of her movement, takes upon herself the peril of determining whether a safe passage remains for her beside the one preceding her, and must bear the consequences of misjudgment in that respect.
In a typical case illustrating the application of this doctrine by the Supreme Court in recent years, the Gulf Trade, a single screw steamship 429 feet long, overtook and attempted to pass on the starboard side of the tug Taurus, which was towing in tandem, i.e., in column, four scows, two of them loaded, just as the Taurus swung her long tow out of the Delaware River into the quieter waters of the Schuylkill. The Gulf Trade, which had previously proposed twice to pass the Taurus and had received an assent each time, made the actual attempt, after the third exchange of signals, in time to collide with two of the scows which were swung somewhat in her path by the action of the flood tide as the flotilla moved out of the Delaware. The district court exonerated the Taurus and the Circuit Court of Appeals found both steamers liable, but the Supreme Court held the Gulf Trade solely at fault for the collision, reiterating the precedent established by the tribunal many years before. The high court said:
We cannot conclude that the Taurus was in fault. She was prudently navigated in plain view of the Gulf Trade who knew the relevant facts; and by assenting that the latter might pass she certainly did not assume responsibility for the maneuver. At most the Taurus obligated herself to hold her course and speed so far as practicable, to do nothing to thwart the overtaking vessel, and that she knew of no circumstances not open to the observation of the Gulf Trade which would prevent the latter from going safely by, if prudently navigated. Of course no ship must ever lead another into a trap. There was ample room for the Gulf Trade to pass. But if not she should have slowed down and kept at a safe distance. Her fault was the direct and sole cause of the collision. Under these regulations the duty of the Gulf Trade was clear. She should have anticipated the effect of the flood tide in the Delaware upon the flotillas as they rounded into the still water of the Schuylkill and kept herself out of the zone of evident danger.
If an overtaking vessel proposes by signal to pass and the overtaken vessel assents under conditions of great and obvious danger, and a collision follows, then both vessels will be at fault. Such a case occurred a few years ago on the Neches River in Texas, which is governed by Western Rivers Rules and the corresponding pilot rules for western rivers. The Neches is a narrow and tortuous stream. At the point where the collision occurred it is about 600 feet in width reduced for navigation purposes to a dredged channel 30 feet deep, steep-to on one side, and, because of a shelving slope on the other side, having a bottom width of only 150 feet. In this narrow pass a twin screw Norwegian steamship, the Varanger, assisted by two tugs, one on either side, was overtaken by the Dora Weems, a single screw lake-type steamer. The Varanger was 489 feet long, 60 feet wide, and at the time drawing nearly 28 feet. The Dora Weems, the faster vessel, was 261 feet long, 40 feet wide, and had a maximum draft of nearly 17 feet. She followed the Varanger for several miles, and when the channel reached a straight stretch about a mile in length, speeded up and blew two blasts to the larger vessel for a port side passage. The Varanger promptly responded with two blasts, and the Dora Weems at full speed attempted the narrow opening between the shelving bank and the Varanger's port side tug. The double suction produced by the bank and the deep-draft Varanger caused the Dora Weems to sheer to starboard and although her rudder was put hard left and her engines kept at full speed, the break of her forecastle head struck the port side of the Varanger well aft of amidships, seriously damaging both vessels. The tug on the collision side of the Varanger let go to save herself, the Varanger backed her port engine, and by the time the Dora Weems scraped clear, the Varanger had swung into the bank and stranded.
Both vessels in this case were in charge of veteran river pilots, and the district court and the Circuit Court of Appeals agreed in finding them guilty of negligent navigation, the one in proposing what was, in the opinion of various witnesses, a very dangerous maneuver, and the other in sanctioning the proposal. In holding the Varanger equally at fault with the Dora Weems, the appellate court said,
Neither a master nor a pilot, whether in charge of a favored or a burdened vessel, should acquiesce in a maneuver so inherently dangerous that it cannot likely be accomplished with safety. Both overtaking and overtaken vessels in a river are under duty to avoid collision if possible. The pilot of an overtaken vessel in a narrow channel is charged with knowledge that the force of double suction from a river bank and his vessel will come into play when an overtaking vessel attempts to pass. While the overtaken vessel may acquiesce if the proposed maneuver can, in its judgment, be accomplished with safety, although requiring an unusually high degree of skill, it must not permit the passing if it knows, or has reasonable cause to believe, that passing is fraught with positive danger.
That the overtaken vessel which consents to being passed in a narrow channel is still entitled to use midchannel if necessary was brought out in an early case in Hell Gate, and reiterated in the Varanger decision. The overtaken vessel may ease over to make more room for the other, without being chargeable with changing her course, but is not obliged to do so if it involves danger for herself. As said in the earlier case referred to, the rule implies,
that the overtaking vessel will, in passing, fulfill her statutory duty of keeping out of the way of the overtaken vessel, and that the latter will keep her course so far as practicable, consistent with the knowledge that the overtaking vessel is to pass her to port. The overtaken vessel has the right to keep in midchannel so long as there is sufficient room on the port side for the overtaking vessel.
We may sum up the import of these decisions on required signals in the overtaking situation by pointing out that while the overtaken vessel will very rarely be held to account for consenting to a proposed passage, she will never be held to account for holding up a following vessel with the danger signal, and this option should always be used in any situation in inland rules where a reasonable doubt exists as to the safety of a proposed passage.
The courts have not been more specific than the rule itself in regard to the duration of the overtaking vessel’s duty to keep clear. The rule lays that obligation upon her until “she is finally past and clear.” Many years ago the point was settled that the rule applies not merely until the overtaking vessel is abeam, but until she has completely passed the other. In a later case, when an overtaking steamship, just after passing a tug with barges, lost headway in order to come to anchor, and was struck by one of the barges, the steamship was held not to have fulfilled her duty to keep clear. In a New York Harbor collision between a ferry and a steam lighter, the ferry had overtaken and passed the lighter some three-quarters of a mile before the point where they came together. She had been obliged to stop her engines to avoid another vessel cutting across her bow and had herself changed course across the lighter when still from 300 to 500 feet ahead of the lighter. The court held that the ferry was no longer an overtaking vessel, but was, within the meaning of the rule, finally past and clear. The steam lighter, temporarily in charge of a deck hand while the master was at dinner, negligently rammed the ferry, and was held at fault, although what the courts considered an unnecessary change in course by the ferry resulted in her having to pay half the damages.3 Perhaps the best policy in deciding this point in practice is to fall back on the literal provision of the rule, and consider that the overtaking vessel must keep clear until far enough ahead so that her maneuver cannot embarrass the vessel she has overtaken, as long as the latter holds course and speed. Of course, if she has to stop in the path of the vessel she has left astern there is an added reason for the prompt use of the danger signal in inland waters, or if under International Rules, the warning provided by Art. 12.
In concluding this discussion, it may be said that the duties of the respective vessels in the overtaking situation are clear and it is only by disregarding them that collision is likely to occur. The burden of keeping a safe distance away is placed on the overtaking vessel. The overtaken vessel has the simple obligation of maintaining course and speed as far as practicable, and in inland waters only, the additional duty of answering the other vessel’s signals. In an overwhelming majority of overtaking collisions, the cause is the impatience or negligence of the faster vessel which, in an ill-advised effort to save minutes or seconds, crowds the slower vessel too closely, or attempts to pass her when the time and place are not safe. There are numerous cases in the books where vessels have ignored the well-known danger of suction and disaster has resulted. A collision due to suction is nearly always chargeable to the overtaking vessel because it is prima facie evidence that she tried to pass too close. While the effect of suction is undoubtedly strongest, and therefore most properly to be anticipated in shallow channels, with an appreciable difference in the speed of the vessels, it has been alleged to cause a collision in the deep waters of the Hudson River with the vessels more than 200 feet apart, and should be guarded against with extreme care whenever one vessel rapidly overhauls another. In shallow water the actual passing should be done with as small a difference in relative speeds as practicable. In all cases under the rule the keynote is caution, bearing in mind that as the privileged vessel the one ahead has a very strong presumption in her favor. In the eyes of the courts she has an indisputable right to use the public navigable waters in which she is navigating and, so far as that particular stage of the voyage is concerned, she was there first and no one passes but by her leave. Perhaps the whole matter has not been more succinctly stated than by the Supreme Court decision in a collision at night more than 80 years ago, when one sailing schooner overtook and sank another in the open waters of Chesapeake Bay:
The vessel astern, as a general rule, is bound to give way, or to adopt the necessary precautions to avoid a collision. That rule rests upon the principle that the vessel ahead, on that state of facts, has the seaway before her, and is entitled to hold her position; and consequently the vessel coming up must keep out of the way.