In the various regulations that govern the action of vessels on public navigable waters under conditions of good visibility two distinct theories of collision prevention are apparent. One theory is that the safer procedure is to put the obligation of positive action equally upon both vessels. This theory is illustrated in the meeting situation, where neither vessel has the right of way and both vessels must alter course, with appropriate whistle signals, so that ample port-to-port clearance will result. Each vessel must take timely and positive action sufficient to avoid collision, and neither may argue, after a collision, that she did not act sooner because she was waiting for initial action by the other.
The second theory for preventing collisions is that the safer procedure is to require one vessel to continue to carry out the exact maneuver in which she is engaged and to put all the obligation of necessary changes in course or speed on the other. Action under this theory is prescribed both on the high seas and in inland waters when one steamer is overtaking another, when two steam vessels are crossing, when a sailing vessel meets a steam vessel, and when two sailing vessels are in a collision approach. It will be seen that the second theory has been given much greater weight by the lawmakers notwithstanding the inherent twofold objection that in many cases collision will occur because the so-called “privileged” vessel fails in her duty to hold course and speed, or the so-called “burdened” vessel attempts to usurp the right of way. As pointed out by LaBoyteaux many years ago, the terms privileged and burdened are very inaccurate for the simple reason that one vessel is as rigidly bound to carry out her duty as the other.
It is clear that whatever merit there may be in this second theory of collision prevention rests as much on adherence to course and speed by the privileged vessel as it does on necessary action to keep out of the way by the burdened vessel. The moment the privileged vessel weakens in obeying the rule she creates a hazard for the burdened vessel in maneuvering to avoid her, and when that hazard has led to collision the courts have repeatedly excused the burdened vessel from liability and held the privileged vessel at fault.[1] When the privileged vessel has failed to hold course or speed and the burdened vessel has also been negligent, the decisions in American admiralty courts have of course resulted in the usual fifty-fifty division of damages.
In no other situation has the theory of one-ship action been more strictly enforced than in the situation of two steam vessels crossing, and in no other situation except in fog has disobedience of the rules been so common. Every mariner knows that there are ample reasons for this. Physically and psychologically it is the most difficult form of approach. The angle of attack is the most vulnerable. The vessel coming at right angles with a bone in her teeth appears the most deadly. The tensity of the situation may be said to increase geometrically as the proximity of the vessels develops arithmetically, and when we consider the extent of nerve strain involved it is perhaps surprising that only 40 per cent of clear weather collisions occur in the crossing situation. It is in this situation that the lawmakers have said, in effect, to the privileged vessel, “You shall hold course and speed,”[2] and to the burdened vessel, “You must keep out of the way,[3] you must not cross,[4] and you must, if necessary, slacken speed or stop or reverse.”[5] Three of the articles here referred to, Articles 19, 22, and 23, are identical in the International and the Inland Rules, and Art. 21 differs only in the addition of a footnote in the international rule which by court construction may be regarded as just as present in the inland rule. This footnote says that when, in consequence of thick weather or other causes, such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision. (See Articles 27 and 29.[6]) This footnote and the two articles to which it refers thus serve the very practical purpose of pointing out that no vessel has the right of way through another vessel. When the vessels arrive in such dangerous proximity that continued obedience to the rule will make collision inevitable, the privileged vessel is not only relieved from her duty to hold course and speed but is required from that moment on to take as positive action as the burdened vessel to avoid collision. Incidentally it may be said that any action by the privileged vessel taken in good faith will be justified by the courts under these circumstances except no action, i.e., dogged persistence in maintaining course and speed right into actual collision. Of course, after a collision has occurred the burdened vessel always has the argument that the privileged vessel’s action was wrong; that if she speeded up she should have backed down, or that if she sheered to the right she should have sheered to the left; but the courts, including the Supreme Court, have consistently taken the very equitable view that in this case the situation in extremis was not of the privileged vessel’s choosing, that she was forced into it by the wrongful navigation of the burdened vessel, and that she should not therefore be held to that high degree of skill and judgment ordinarily expected of her.[7]
On the high seas, where the International Rules hold, the basic law of the crossing situation has remained unchanged since the adoption of the rules in 1897. With three articles applying directly to her, the burdened vessel has been legislated out of the danger zone and a crossing collision made impossible as long as both vessels obeyed the rules. The privileged vessel, on the other hand, has been guaranteed a safe passage across the bow of the other, and as a condition of that guarantee is required to hold course and speed unchanged. To escape liability for a collision produced by the wrongful action of the burdened vessel she has been required only to show that she held course and speed until in her judgment the wrongful navigation of the other had persisted to a point where if she continued holding course and speed any longer collision must inevitably follow. This is all that the courts have required, and they have not been satisfied with less. As to just when the critical point was reached where the privileged vessel’s obligation changed from one form of action to the other, the rules are silent and the courts have not been more explicit. That point would, of course, be different in the approach of different types of vessel, depending on speed, condition of loading, backing power, turning radius, and other factors involved in the maneuverability of the respective vessels. While the privileged vessel is held to a reasonable knowledge of her own maneuverability, she can only speculate on the proper allowance to make for the other vessel’s ability to maneuver. Because of this fact, as far as the courts are concerned, the navigator of the privileged vessel whose position has been wrongfully jeopardized by the fault of the other is, within reason, the authority on that point. In the absence of the most positive assurance that the burdened vessel would fail in her duty, the privileged vessel has been bound to hold on just so long as, in her judgment, it was still possible for the burdened vessel, however belatedly, to avoid her. And from decisions of the Supreme Court itself it is apparently impossible, under International Rules, to obtain such assurance from the burdened vessel before the vessels are in extremis. This is unquestionably the most difficult spot in which the mariner has been placed by the lawmakers.
Some idea of how positive must be the assurance of the burdened crossing vessel’s intent to disobey the rules before the privileged vessel is relieved of her obligation to hold on was brought out in a decision of the United States Supreme Court as recently as 1928, in a unique daylight collision in clear weather in the open Pacific, between the wooden steam schooner Svea and the steamship Newport. The Svea, which was the privileged vessel in a crossing situation, sighted the Newport over 8 miles away, and the approach continued with undiminished speed by both vessels until just before the collision, when the Svea was reversed. During the last few miles of the approach, officers on the Svea observed the Newport through binoculars and were unable to detect any signs of life on her bridge, in her pilot-house, or on the forecastle head. When the vessels were within 2 miles of each other, the Svea sounded one blast and continued to hold course and speed. When the vessels were about 1 mile apart she blew the 4-blast danger signal, and repeated it when within a few hundred feet of the other vessel. After blowing her second danger signal the Svea reversed her engines in a futile attempt to escape disaster but was run down and seriously damaged by the larger steel vessel.
As both vessels were under International Rules all of the Svea’s signals were, of course, meaningless. While the 1-blast signal would have been correct in inland waters as an announcement of intention to hold course and speed, under Article 28, International Rules, the only meaning of one short blast is to announce a change of course to the right when such change is authorized or required by the rules. Until crossing steam vessels are in extremis a change to the right by the privileged vessel is most decidedly not authorized or required by the rules. As to the 4-blast signals, they are not authorized anywhere in the International Rules. However, no signals whatever were given at any time by the Newport, and the courts did not hold the meaningless signals of the Svea as material faults which could have contributed to the collision.
The significant point in the decision of the Supreme Court was that despite the apparent disregard of her duty by the Newport, her inattention to signals, her continued approach at unabated speed, and the invisibility of her bridge personnel, the Svea was held to be fully justified in maintaining course and speed until the time of blowing her second danger signal. While this view was not held by the Circuit Court of Appeals, which found both vessels at fault, the Supreme Court agreed with the district court and held the Newport solely liable for the collision. In reversing the Circuit Court of Appeals and commenting on the duty of the privileged vessel the Supreme Court said:
“We think there is no clear proof that the Svea failed in her duty. She tried in vain by repeated blasts to ascertain the Newport's intention. Her master could not possibly know the result of departing from the prescribed rule, and we cannot say that he acted indiscreetly in following it. . . . The Newport was a handy vessel. By porting her helm or reversing her engines two minutes or less before the collision occurred she could have avoided it easily. There was nothing to show that she would not do one of these things until too late for the Svea’s master to maneuver his vessel into safety.’’[8]
And referring to several of its own earlier decisions on the subject, the Supreme Court reiterated its position in the following unmistakable language:
The cases of the Britannia[9] and Hutchinson v- the Northfield[10] must be regarded, however, as settling the law that the preferred steamer will not be held in fault for maintaining her course and speed, so long as it is possible for the other to avoid her by porting,[11] at least in the absence of some distinct indication that she is about to fail in her duty. If the master of the preferred steamer were at liberty to speculate upon the possibility, or even of the probability, of the approaching steamer failing to do her duty and keep out of his way, the certainty that the former will hold his course, upon which the latter has a right to rely, and which it is the very object of the rule to insure, would give place to doubt on the part of the master of the obligated steamer as to whether he would do so or not and produce a timidity and feebleness of action on the part of both, which would bring about more collisions than it would prevent.[12]
A careful analysis of the Supreme Court’s findings in these cases shows the crux of the matter to be the fact that under the International Rules there is no exchange of signals provided by which the privileged vessel can receive “a distinct indication” of the burdened vessel’s non- compliance with the rules. The privileged vessel, required to hold course and speed, is bound to whistle silence and thus has no way of proposing to or challenging the other vessel when the latter appears to fail in her duty, except the detonating signal of Article 12—a purely optional device so innocuous in effect that no vessel has ever been held at fault for failure to use it. The burdened vessel, on her part, has no way of serving notice on the privileged vessel that she intends to deviate from her duty. In the absence of 1- and 2-blast signals as used in the inland waters of the United States in this situation, the privileged vessel cannot be relieved of her original obligation to hold her course and speed, in whistle silence, until the proximity of the two vessels justifies contrary action in extremis.
In the inland waters of the United States, although the basic requirements of privilege and burden as expressed in Articles 19, 21, 22, and 23 Inland Rules are identical, the duties of the vessels with respect to each other are somewhat modified by signal provisions in the Pilot Rules. The signal section of those rules provides a 1-blast signal by the privileged vessel in the crossing situation to announce her intention of holding course and speed, and under Pilot Rule III, if the approach is to be within half a mile, the burdened vessel must reply with a similar signal. The courts have found the same signal may be properly given first by the burdened vessel, subject to a reply by the privileged vessel, and the machinery thus set up makes available a clear understanding by each vessel of the intent of the other to obey the rules.
Under authority of Section 2, Inland Rules, the Inspectors have at various times sought to clarify and render safer the crossing situation by certain additional modifying Pilot Rules. A Pilot Rule to be valid must not, as stated in the authorizing section, conflict with the Inland Rules, which are statutory; and whenever a Pilot Rule is formulated which appears to contradict in any way the intent of an Inland Rule, the courts have invariably found it null and void. Thus in several instances, Pilot Rules intended to lessen the hazards of the crossing situation have been attacked by the courts as being inconsistent with a strict adherence to the principle of privilege and burden. For example, Pilot Rule IX, adopted in 1907, read as follows:
“When two steamers are approaching each other at right angles or obliquely, other than when one steamer is overtaking another, so that the steamer having the other on her starboard hand may cross the bow of the other without involving risk of collision, the steamer having the other on her starboard side may cross the bow of the other. If the steamers are within half a mile of each other the steamer having the other on her starboard side shall give, as a signal of her intention to cross the bow of the other, two short and distinct blasts of her whistle, which, if assented to, the other steamer shall promptly answer by two similar blasts of her whistle, when the steamer having the other on her own starboard bow may cross the bow of the other, in which case the steamer having the other on her own port side shall keep out of the way of the other. If, however, the steamer having the other on her own port side deems it dangerous for the other steamer to cross her bow, she shall sound the danger signal, in which case both steamers shall be stopped, and backed if necessary, until signals for passing with safety are made, answered, and understood.”
The purpose of the foregoing rule was plainly to validate a reversal of the crossing rule when both vessels agreed that it could be done safely. It was a recognition of what was, and still is, in crowded harbors, a widespread practice; but when this rule first reached the courts in 1909 as a result of a New York Harbor collision it was immediately invalidated by a district court decision in the following language:
“Rule 9 of the Board of Inspectors, approved by the Secretary of Commerce and Labor, February 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.”[13]
Three other Pilot Rules affecting the crossing situation in inland waters have on numerous occasions received unfavorable court action. (1) Pilot Rule II provides that steam vessels are forbidden to use what has been technically known among pilots as “cross signals,” that is, answering one whistle with two and answering two whistles with one. For many years, and as recently as 1939, district courts and circuit courts of appeal have been holding that it is always valid to answer an improper signal with a proper one, and that if a burdened crossing vessel proposed two whistles it was entirely proper for the privileged vessel to come back with one whistle and to continue holding course and speed until both vessels were in the jaws of collision.[14] The situation, of course, required also the use of the danger signal, but it was apparently a matter of indifference to the courts whether the 4-blast signal followed, or came between, the 1- and 2-blast signals. The effect of these decisions was completely to nullify Pilot Rule II in all cases where the first signal was improper. When the first signal was a proper one, “crossing,” it would be improper on other grounds, and the rule was superfluous. (2) As already pointed out, the signal section of the Pilot Rules provides that one short blast of the whistle in this situation signifies intent of the steam vessel which is to the starboard of the other to hold course and speed. While this signal has not been specifically disapproved, on the east coast the Circuit Court of Appeals, Second Circuit, has given it the status of an optional signal only, and has repeatedly declined to hold a crossing steamer at fault for failure to use it.[15] (3) Pilot Rule VII, second paragraph, was another attempt by the Inspectors in the interests of safety which the courts for many years refused to sanction. The first paragraph of the rule is little more than a summary of Inland Rules 19, 21, 22, and 23, but the second paragraph provides as follows:
If from any cause the conditions covered by this situation are such as to prevent immediate compliance with each other’s signals, the misunderstanding or objection shall be at once made apparent by blowing the danger signal, and both steam vessels shall be stopped and backed if necessary, until signals for passing with safety are made and understood.
In a long line of decisions[16] both district and circuit courts of appeal have been holding this provision invalid on the grounds that it conflicted with the statutory requirement of Art. 21, Inland Rules, that the privileged vessel must hold course and speed as long as it was still possible for the burdened vessel alone to avoid the collision. The line of reasoning in these decisions was that the use of the danger signal was required the instant the misunderstanding of signals was apparent, but that if the vessels were not yet in the jaws of collision the statutory obligation of the privileged vessel to hold on still prevailed. Thus a privileged crossing vessel might blow one blast when the ships were 2 or 3 miles apart and the burdened vessel might reply with, or simultaneously propose, a 2-blast signal. Obviously there would still be ample time for the burdened vessel to correct both her signal and her proposed wrongful maneuver before the vessels were in dangerous proximity and the privileged vessel was accordingly, in the eyes of the courts, not relieved of her duty by Pilot Rule VII. In one such case the privileged vessel was specifically exonerated when she continued holding course and speed for a full minute after danger signals had been sounded.[17] The attitude of the Circuit Court of Appeals, Second Circuit, in regard to both Pilot Rules II and VII was well summed up in the case of the Fulton[18] as follows:
Our reasoning has been that, as the statute (Art. 21) puts a duty upon the privileged ship to keep her course and speed no rule can be valid which affects to relieve her of it, and that she may announce her determination to insist by crossing the first signal. The doctrine has been too long and too repeatedly established to allow any question now but it is plain that the inspectors have never assented to it.
It must be apparent from the foregoing discussion that there has been for some years a distinct difference of opinion between the Board of Supervising Inspectors, which is empowered to promulgate the Pilot Rules, and the courts, whose function it is to interpret the statute and hence to validate only such Pilot Rules as do not conflict with the Inland Rules. This difference of opinion centers in the duty of vessels in the inland waters of the United States to stop and back as soon as there is a dispute or other misunderstanding in whistle signals. The Inspectors have stood by their guns and continued to publish Pilot Rules II and VII in the Pilot Rule pamphlets issued to the merchant service despite their invalidity in the courts. The courts on their side have continued to pile up decision after decision for half a century, apparently firm in the view that if the disputed point ever reached the Supreme Court they would be sustained. And then, in 1940, for the first time on this issue, the High Court spoke.[19]
The Supreme Court decision in question grew out of a collision which occurred on a clear, dark evening near the junction of Curtis Bay and Fort McHenry Channels in the approach to Baltimore, on December 19, 1935, between the steamships Eastern Glade of the Postal Steamship Company and El Isleo of the Southern Pacific. The tide was ebbing and there was a light northwest breeze. Fort McHenry Channel is about 600 feet wide and runs approximately northwest; Curtis Bay Channel runs into it in a direction nearly east, but does not cross it. The Eastern Glade was light and was bound eastward, intending to make the turn into Fort McHenry Channel and proceed to Baltimore. She sighted the El Isleo about a mile away and four points on her starboard bow, and immediately stopped her engines and blew two short lasts. According to her master, who was attempting to apply the International Rules, he meant his signal to indicate intention to turn to the left, and to follow the El Isleo up the channel. He was, of course, under Inland and Pilot Rules and the captain of the El Isleo understood the signal, nonstatutory but sanctioned by the custom of long usage, as a proposal to cross his vessel’s bow. The El Isleo, with 1,000 tons of ore on board, was making full speed on one boiler, about 8 knots, and her captain immediately decided not to yield the right of way, but to hold course and speed. Accordingly he blew the danger signal, followed by one blast. He continued to hold course and speed until up with a buoy nearly opposite Curtis Bay Channel, when the rapid approach of the Eastern Glade made collision appear imminent. In extremis the El Isleo sheered to the right in a final attempt to avert collision, and was perhaps 200 yards outside the buoyed channel when struck amidships on the port side by the Eastern Glade, which herself reversed engines at the last minute before the impact. Both vessels were seriously damaged.
This case was first tried at New York in the district court, which held that inasmuch as the vessels were in plain sight of each other the crossing rule applied, notwithstanding the steamships were in converging channels, and that the master of the El Isleo was not required by any rule to stop and reverse in the presence of danger. After finding that not even his lack of a Baltimore Harbor pilot’s license rendered his vessel presumptively at fault for the violation of a Pilot Rule, the court exonerated the El Isleo because of the flagrant violation by the Eastern Glade of the starboard hand rule. In reviewing this decision the Circuit Court of Appeals agreed in general with the district court and said that the procedure of the El Isleo had been too well established by earlier decisions of the Circuit Court of Appeals to justify any change unless and until the Supreme Court should pass on the essential points involved. In conclusion the Circuit Court expressed the opinion that it had no other alternative than to find the Eastern Glade solely liable for the collision.
The case was carried up to the Supreme Court and, much to the surprise of the admiralty bar, certiorari was granted; that is, the high court accepted consideration of the case, and in its decision for the first time ruled upon the validity of Pilot Rules II and VII. Referring to the Circuit Court’s criticism of its own line of decisions the Supreme Court said:
The ground for criticizing the ruling of the Circuit Court of Appeals and disregarding the Inspectors’ rules cannot be better stated than in the Court’s own language in the Fulton. After referring to its former decisions by which it felt itself bound, the Court observed that “concededly there comes a time when the privileged vessel must yield”; that there is never a “right of way into collision”; that the point at best “is one of degree”; and that if the question were res Integra the Inspectors’ rule would be held valid. The court continued: “The Inspectors apparently believe that in the greater number of cases it will conduce to collision to allow a pilot to keep on in the face of proposal by the approaching vessel that she put herself across her bows though the proposer will not act without consent; but it is certainly possible that prudence forbids speculation as to whether he still has time or disposition to keep out of the way. Again and again cases arise in which the proposal is repeated, the vessels coming nearer all the time; sometimes it is repeated even after it has been crossed by a refusal. No substantial interest is at stake except to escape collision, which will certainly be avoided if both stop.” Stopping “is more likely to avoid disaster than going on in the teeth of what is at least a proposal and may be a declaration.” So the Court thought that the situation was a proper one “for the exercise of the Inspectors’ function in providing for cases not covered explicitly.” The Court could not see “any conflict with the statute unless that be read without regard to its purpose, for Arts. 19 and 21 do not require any signals at all.” And “if one is given proposing a dangerous course” the Court thought it “too verbal and rigid of interpretation to say that the privileged vessel is inevitably still bound; at least officials, vested with general authority, are not helpless to meet the situation by a rule.” And after noting that Art. 27 of the statute authorized a departure “to avoid immediate danger,” the Court posed the question: “Can it be that though vessels may themselves so depart, the Inspectors may not say that a situation likely to be dangerous shall be treated as such?”
We are in accord with the criticism thus effectively explained by the Court of Appeals of its established rule and we think that the Court should be relieved of its assumed obligation to follow its former decisions holding the Inspectors’ requirement invalid. We think that the Inspectors’ Rule II should be read in connection with their Rule VII and that both should be construed in the light of the statutory provision in Art. 27.
The plain purpose of the Inspectors’ rules is to minimize the danger of collision. The so-called privileged vessel has no absolute right to keep her course and speed regardless of the danger involved
in that action. Her right to maintain her privilege ends when there is danger of collision and in the presence of that danger both vessels must be “stopped and backed if necessary until signals for passing with safety are made and understood.”
. . . We deal simply with the question presented with respect to the validity of the Inspectors’ rules here in question. We hold these rules are not essentially inconsistent with the statute and are valid, both the statutory provisions and the Inspectors’ rules being designed to promote safety in situations fraught with danger. ... If the Circuit Court of Appeals apparently did not consider the conduct of the El Isleo in the light of the Inspectors’ requirements, but thought, under the compulsion of its former decisions, that it must disregard those requirements, we think that the case should be returned to the Circuit Court of Appeals to be decided by it, free of that compulsion. To afford that freedom we reverse the judgments and remand.[20]
After reconsidering this case, the Circuit Court of Appeals, Second Circuit, rendered a final decision June 3, 1940, holding both vessels at fault for the collision. Commenting on the significant instructions in the decision of the Supreme Court, the Circuit Court said:
There can be no doubt that the Supreme Court meant to hold that in a crossing case, when the holding-on vessel gets two blasts from the giving-way vessel, which are unacceptable to her, she must neither cross the signal, nor keep her speed, but must at least stop her engines, and if necessary back “until signals for passing with safety are made and understood.” Rule VII. It is quite true that this results in putting the holding-on vessel’s privilege at the mercy of the other vessel if she proposes navigation which the holding-on vessel docs not approve. She must not hold her speed, but slacken for a mutually satisfactory exchange of signals. There is not the slightest objection to this; the interest of the holding-on vessel in holding her course and speed is nil; she is called upon to surrender nothing of substance, compared with the overshadowing interest of avoiding collision, or danger of collision. Whether such a rule will better serve to avoid collision is of course another matter; the habit may be so ingrained in masters to press on when another vessel is crossing from their port side that it is impossible to get them to do anything else; perhaps, too, it would result in confusion if they obeyed. But we cannot pass upon such matters; Congress has very wisely put them in the hands of those who should be, and presumably are, qualified to deal with them—an administrative tribunal skilled in the subject matter. All this is, strictly speaking, beside the mark since the Supreme Court has spoken; but we wish to make it clear how we understand its decision and to say that, if the situation is not as it should be, the only relief is from the Supervising Inspectors.
El Isleo was therefore at fault for violating Rules II and VII and the damage must therefore be divided. . . . Rule VII is explicit; it forbids any agreement other than an assent to the proposal until after the vessels have at least stopped their engines. They may not undertake to agree while they remain underway. That is what El Isleo did, because she supposed that it was her duty as well as her privilege to keep on. It is quite impossible to say if she had stopped—her minimal duty—the collision would still have happened. The probabilities are the other way and although it is true that, as between the two vessels, the Eastern Glade was far more gravely at fault we have no power to apportion the damages.[21]
A careful analysis of the decision of the Supreme Court and the later decision of the Circuit Court of Appeals in the case of the El Isleo shows a very important modification of the procedure required of crossing steamers in the inland waters of the United States but leaves unanswered several questions which the mariner must still answer for himself. The modification appears to be that once there is a dispute of signals in a crossing approach, the hypothetical point where the privileged vessel’s requirement to hold course and speed gives way and her duty to take some other action begins has been reached. However, in this particular case the vessels were not more than a mile apart and the grounds for the application of Pilot Rule VII are expressly stated by the Supreme Court to be in Art. 27, the rule of special circumstances. While it seems highly probable that the same interpretation would be given if the dispute of signals occurred 2 or 3 miles apart it still remains to be seen whether the special circumstance rule would then give the same validity to the application of Pilot Rule VII. It will be remembered that there are two legitimate reasons given in the court decisions for the privileged vessel to discontinue holding course and speed: (1) actual arrival of the vessel in extremis; (2) a positive indication by the burdened vessel of her intention to depart from the rule and disregard her duty. If the Supreme Court decision means that the confusion of signals having occurred at a distance of a mile or less put the vessels in extremis then the question is still open; if, as seems more likely, it means that any misunderstanding of signals in the hazardous approach at right angles should be construed as a declaration by the burdened vessel of intent to fail in her duty, Pilot Rule VII might be held to apply in a dispute of signals in this situation at any distance.
In the instant case there was a direct conflict of signals; that is, two blasts were answered with one. It is left to future cases to decide whether Pilot Rule VII may be properly invoked when the burdened vessel, instead of using a contrary signal, simply ignores the privileged vessel’s one blast. Must the privileged vessel then continue to hold course and speed as before until in the jaws of collision, or should she regard the burdened vessel’s silence in answer to repeated 1-blast signals as a misunderstanding as contemplated by Pilot Rule VII? The writer ventures the opinion that in view of the essential validity of the Pilot Rules stated by the Supreme Court, a repeated 1-blast signal, that is, one given at least twice without answer, may be held to require the application of Pilot Rule VII, and the appropriate reversal by both vessels. And of course the use of the danger signal by either vessel in this situation will immediately require such action.
On the whole the mariner in inland waters would seem to be somewhat better off than before. The Supervising Inspectors clearly knew what they were about in formulating the rules. They recognized many years ago what every mariner knows, that two crossing steamers can settle arguments far more safely with both vessels at reduced speed than with one keeping her original speed, and that this is particularly true where one vessel is approaching the other at the most vulnerable angle of attack. In inland waters, the mariner on the privileged vessel, if he can start a whistle argument, need no longer carry on at full speed during the harrowing moments when the burdened vessel appears bound to sink him.
Unfortunately, perhaps, the lawful procedure on the high seas remains as before. The Supreme Court in its wisdom settled that in the case of the Svea and the Newport. Under the International Rules the privileged crossing steamer must still hold on, in whistle silence, until the dangerous proximity of the two vessels leaves her only the alternatives of a different action or inevitable collision. While the El Isleo case has undoubtedly alleviated the mariner’s most difficult situation in inland waters and has vindicated in a remarkable way the seasoned judgment of the Supervising Inspectors, a regrettable corollary of that decision seems to have been away from, instead of towards, uniformity of action on the high seas and in the inland waters of the United States. Unless the Supervising Inspectors should have a change of heart, as hinted in the second decision of the Circuit Court of Appeals, and repeal Pilot Rules II and VII, then the crossing situation emerges from the El Isleo decision with one more important difference in the interpretation of the rules for the mariner, already confused to the point of bewilderment, to remember and obey.
“When vessels shall he crossing each other on different tacks, and there shall be any doubt which can pass to windward with perfect safety, the ship on the starboard tack shall keep her wind, and the vessel on the port tack shall keep away, without any regard being paid to rank of the respective commanders.”
“Vessels going with the wind free, always to give way to those by the wind."
“Vessels under steam alone shall always give way to sailing vessels."
“All vessels are to bear up, shorten sail, steam slower, or back in such manner as may be most convenient to prevent collision."—Directions Signals, U. S. Navy, adopted July 13, 1858.
[1] The Morristown (NY 1922) 278 F 714; the Elizabeth (CCA NY 1912) 197 F 160; the Northfield (1878) 154 US 629.
[2] Art. 21, International Rules. Where, by any 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 action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision. (See Articles 27 and 29.)
[3] Art. 19, International and Inland Rules. When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.
[4] Art. 22, International and Inland Rules. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.
[5] Art. 23, International and Inland Rules. Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.
[6] Art. 27, International and Inland Rules. 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 in order to avoid immediate danger
Art. 29, International and Inland Rules. 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.
[7] The Favorita v. Union Ferry Co. (1873) 21 L. Ed. 856. See also the Liverpool, New York, and Philadelphia SS. Co. v. Henry P. Simmons (1870) 19 L. Ed. 751.
[8] Wilson v. Pacific Mail SS. Co. (1928) 72 L. Ed. 651.
[9] 38 L. Ed. 660.
[10] 24 L. Ed. 680.
[11] I.e., executing right rudder.
[12] The Delaware 40 L. Ed. 771, citing also Belden v. Chase 37 L. Ed. 1218.
[13] The Pawnee (NY 1909) 168 F 371.
[14] The John King (CCA NY 1891) 49 F 469; The Cygnus (CCA NY 1905) 142 F 85; The Transfer No. 15 (CCA NY 1906) 145 F 503; The John H. Starin (CCA NY 1908) 162 F 146; The Montauk (CCA NY 1910) 180 F 697; The Ashley (CCA NY 1915) 221 F 423; The Eastern Glade (CCA NY 1939) 101 F (2d) 4.
[15] The Haida (CCA NY 1913) 191 F 623; The Boston Socony (CCA NY 1933) 63 F (2d) 246.
[16] See cases cited in footnote 14.
[17] The Musconetcong (CCA NY 1918) 255 F 675.
[18] The Fulton (CCA NY 1931) 54 F (2d) 467.
[19] Postal SS. Corp. v. El Isleo 101 F (2d) 4; reversed (1940) 84 L. Ed. 335; redecided (CCA NY 1940) 112 (F2d) 297)
[20] Ibid.
[21] Postal SS. Corp. v. El Isleo 101 F (2) 4; reversed (1940) 84 L.' Ed. 335; redecided (CCA NY 1940) 112 (F2d) 297.