Twenty-Five Hundred Years Of The Rules Of The Road

On January 1, 1954, the revised International Rules of the Road went into effect throughout the maritime world. This was in accordance with the 1948 International Conference for Safety of Life at Sea. The new rules are not a complete revision of the former rules. Many of the changes are simply alterations in wording.¹ Technically known as the International Regulations for Preventing Collisions at Sea, these rules had remained unchanged since their adoption in 1897. While there has been occasional criticism of these Rules in maritime circles, the fact that they remained unchanged for more than half a century, except for the addition of rudder order terminology,² indicates that the drafters of the basic rules did an excellent job.

The question thus arises: Who drafted the original rules and when were they accomplished? To properly appreciate the involved process of formulating the present day Rules of the Road, one should consider the centuries that men have been sailing the seas and the rules that governed their navigation before there was any international codification. Since the Rules of the Road are an integral part of the Law of the Sea, or, as it is usually referred to, the common law of the sea, the chronological development of these rules parallels the development of the laws that pertain to the sea and marine commerce.

The birth of the Law of the Sea was conceived by the Phoenician navigators and traders who plyed their oar-and-sail-propelled craft over the Mediterranean and adjacent seas from about 1200 to 600 B.C. The first known compilation of sea laws, the Rhodian Sea Law, was named after the island of Rhodes. This was a trading metropolis that commanded the entrance to the Aegean Sea. The original document is believed to have been drafted in the 4th century B.C. The only existing copy is now preserved in the vaults of the Vatican library. The stature of this body of laws is evidenced by an historic utterance of the Roman Emperor Antoninus, in a reply to ampetition by a wealthy merchant, which was as follows: “I am the Lord of the World, but the sea law is the master of the sea. Let thy controversy be decided by the law of the Rhodians.”

An examination of this lengthy and historic document, which sets forth some 66 rules for the conduct of commerce by sea, shows that the first documented rule to prevent collision at sea concerned lights and signals. Part III, Article 36, reads as follows:

“If a ship in sail runs against another ship lying at anchor or with sails slackened, and it is daylight, the collision and the damage lie against the captain and crew of the first ship. ... If it happens at night, the ship at anchor or with sails slack, must light a fire for warning. If he has no fire let him shout. If he neglects to do this and a collision takes place, he has himself to thank.”

As sea commerce under the Byzantine Empire flourished, the seaport cities along the coasts of Spain and France grew in importance. Each port contributed its own local ordinances to the basic Rhodian Law, all of which were eventually compiled into a code for the Western Mediterranean called the Consolato del Mare. This code followed the Rhodian Sea Law by several centuries but contained nothing new insofar as Rules to prevent collision. It is mentioned as it contributed to the next important body of sea law, the Roll of Oléron.

Just as Rhodes was an island at the crossroads of traffic in the Mediterranean, Oleron was an island occupying a similar strategic position. Situated in the Bay of Biscay, midway between Ushant and the Pyrenees, it became a thriving center of commerce during the 11th and 12th centuries. It was also the seat of the court of the Duchy of Guyenne, which was part of Eleanor of Aquitaine’s dominion. Eleanor, who became Queen of England in 1149 by marrying King Henry II, during a journey through the eastern Mediterranean observed that the Consolato del Mare was highly regarded in the crowded Levantine ports. She had the foresight to bring a copy back with her and ordered the court of her Duchy to make a similar record. Thus was compiled the Roll of Oléron in approximately 1175. Historians classify this codification as the medieval sea law and consider it to be the basis of our modern admiralty law.

That portion of the Roll of Oléron that pertains to Rules to prevent collision is not technically a prevention rule but one of a remedial nature. Article 15 of this code reads as follows:

“A ship is in a roadstead moored and riding at her mooring and another ship strikes her while she is at rest. . . . The damage ought to be appraised and divided by halves between the two ships. The master of the ship which has struck the other is bound to swear, himself and his mariners, that he did not do it intentionally. The reason this judgment is made, is, that it may happen that a vessel would willingly place herself in the way of a better ship, if she were to have all her damage made good from having struck the other ship. But when she knows she ought to share the damages of both by halves she willingly places herself out of the way.”

The next important body of sea laws was actually a modernized version of the Roll of Oléron. It was called the Code of Visby and was first printed in 1505. These laws were compiled by the important Danish mercantile community that was located on the isle of Visby in the Baltic Sea; and were used to govern sea commerce in the Baltic and North Seas. The only reference to collision is a similar but more concise version of the aforementioned article in the Roll of Oléron. It reads as follows:

“Article LXX—If a ship under sail does damage to another, the master and mariners of the ship doing the damage must swear they did not do it designedly, and could not help it, and then the damage shall be borne by both ships in equal proportion, and if they refuse to swear, the damage shall be borne by the ship that did it.”

From the foregoing it is evident that while the earliest recorded sea laws do contain reference to rules to prevent collision, they were too few in number and too limited in scope to practically govern the actual maneuvers of vessels to prevent collision. It must be surmised then that the vessels that sailed the seven seas up to the 17th century were navigated by one basic unwritten rule, and that was to avoid collision by any maneuver necessary. Since speed was always less than ten knots, the vessels small, and the sea lanes relatively uncongested, there is no reason to believe that navigation in this manner was not satisfactory. Gradually, however, as speed increased and ships became larger, this unwritten rule was necessarily modified or broadened to take into account certain sailing principles, namely, “ a. vessel sailing before the wind can maneuver with greater advantage than a vessel closehauled.”

It can be said that the early Rules of the Road, as found in the Rhodian Sea Law, the Roll of Oléron and the Code of Vishy, formed the written common law of the sea, and the practical rule to avoid collision by any maneuver was the unwritten common law of the sea. The result, known as the common law of the sea, was the basis for admiralty court adjudication of collision cases throughout the maritime world for several centuries.

In the 17th century, which found England the Queen of the Seas with huge armadas of men-of-war cruising the English Channel and Bay of Biscay, there arose a definite need for uniformity and order in maneuvering to avoid collision. This need was soon answered in a military but rather unorthodox manner. A rule for maneuvering, which undoubtedly stands as the simplest in maritime history, was promulgated throughout the British fleet. It was based solely on the rank of the respective commanding officers! Accordingly, the ship with the senior officer was the privileged vessel! The Lord High Admiral of the Royal Navy, the Earl of Warwick, immortalized his tenure in British Naval lore by issuing in 1645 the following order: “No captain shall take the wind of an admiral.”

It wasn’t long, however, before the flag officers of the Royal Navy realized that, while “rank hath its privilege,” when two men-of-war were bearing down on each other on a collision course was no time to determine seniority. Consequently, within a few months, an amended order was promulgated which read as follows: “In order to avoid inconvenience from the customary practice founded on the regulations in the General Printed Instructions, with respect to the conduct of junior officers toward their seniors, the ships of war are to bear up for each other, shorten sail without regard to the seniority of the commanders, or other claim of distinction, in such manner as shall be found most convenient on either part, and a best guard against the hazard of falling on board of each other. But when ships are upon different tacks, and must cross near each other, the ship on the starboard tack is to keep her wind, while that on the larboard is always to pass to leeward.”

This Royal Naval Order was the first attempt to formalize in writing a practical rule for vessels meeting to avoid collision. In the early 1700’s the British Admiralty promulgated a similarly recommended procedure to the ships of the merchant marine, as follows: “ . . . a ship on the larboard tack shall bear up for another on the starboard tack.” In a British admiralty case heard in 1789 The Resolution (Marsd. Ad. Cas. 332), the foregoing rule was cited as the governing common law of the sea.

In 1780 this rule was restated to the Royal Navy by the Lord High Admiral, Sir C. Knowles, who wrote in the “General Instructions to the Night Signals,” as follows:

“All ships on the larboard tack are to bear up for those on the starboard tack when passing on opposite tacks.”

In 1816, this fleet order was amended to read as follows:

“When ships are upon different tacks, and must cross near each other, the ship on the starboard tack is to keep her wind, while that on the larboard tack is always to pass to leeward, bearing up in time for that purpose, if necessary.”

The British Admiralty also promulgated this recommended procedure to the merchant marine in the same year.

This procedure, that the vessel on a starboard tack was privileged, was generally adopted throughout the maritime world as the desired practice. For example, in one of the earliest American Seamanship texts, Arnold’s Practical Lunarian—1822, can be found this passage:

“When two vessels are running towards each other, and are very close before they are perceived, the vessel having the starboard tacks on board ought to keep the wind, and that one rule, it will save many vessels, and the lives on board. This rule is said to be strictly adhered to by English vessels, though it is not many years since I heard it mentioned.”

At this same time the starboard tack privilege developed there logically came about a preferred procedure for the situation where one vessel was running free. This common law rule, it is believed, was first stated in an admiralty case heard in 1828, Handaysyde v. Wilson (3 C. and p. 528), as follows:

“The ship which has the wind large may go either to leeward or to windward; but, as a general rule, she ought to expect that the ship which is close-hauled will keep to windward, and therefore she ought to go to leeward, unless it is quite clear that she can go to windward with safety.”

In the early 1800’s, the advent of steam- propelled ships on the sea lanes caused a problem for the the mariner. With the arrival of the first few steamers, when a meeting situation might involve a steamer and a sailing vessel, the general proposition was “A steamer is always to be considered a sailing vessel with the wind large.” This proposition was stated in a British admiralty case The City of London adjudicated in 1845. Then, with increasing numbers of steamers giving rise to meeting situations involving two steamers where, obviously, the com men law of the vessel close-hauled being privileged did not apply, a problem arose. The difficulty that seamen encountered in those days of sail and steam is described in the following quote from a London periodical of the day:

“Again, many screw steamers, with square sails set, are in no degree different in appearance from sailing vessels. If, in the day time, the smoke is not visible, which it often is not, there is sometimes little to show an approaching vessel to be under steam. In men-of-war there is nothing, as they become steam and sailing vessels alternately two or three times in the same 24 hours. Nor is the smoke with them any guide, as nothing is more common than to keep the fire alight while the screw is out of the water.”

From this impasse developed what was to be notoriously known as the “Port Helm Rule.” This rule was set forth in the Trinity House Rules of 1840. Prior to that date, while the common law sailing rules had become well established by custom with the exception of a few isolated Royal Naval Orders, there had been no attempt to properly codify them. This needed codification was initiated by the Trinity House. This was an organization chartered in 1514 by King Henry VIII, and was composed of the admiralty experts of England, known as Elder Brethren of the Trinity. While the rules this eminent group drafted had no statutory authority for enforcement, they were authoritative evidence of what seamen ought to do in circumstances in which the rules were applicable. On October 30, 1840, the Trinity House issued the following precept:

“And, whereas, the recognized rule for sailing vessels is, that those having the wind fair shall give way to those on a wind; that when both are going by the wind, the vessel on the starboard tack shall keep her wind, and the one on the port tack bear up, thereby passing each other on the port hand.

“That when both vessels have the wind large or a-beam, and meet, they shall pass each other in the same way on the port hand—to effect which two last-mentioned objects the helm must to put to port. And as steam vessels may be considered in the light of vessels navigating with a fair wind, and should give way to sailing vessels on a wind on either tack, it becomes only necessary to provide a rule for their observance when meeting other steamers or sailing vessels going large.

“Under these considerations, and with the object before stated, this Board has deemed it right to frame and promulgate the following rule, which, on communication with the Lords Commissioners of the Admiralty, the Elder Brethren find has already been adopted in respect of steam vessels in Her Majesty’s service; and they desire earnestly to impress upon the minds of all persons, having charge of steam vessels, the propriety and urgent necessity of a strict adherence thereto, viz:

RULE

“When steam vessels on different courses must unavoidably or necessarily cross so near that, by continuing their respective courses, there would be a risk of coming in collision, each vessel shall put her helm to port, so as always to pass on the port side of each other. A steam vessel passing another in a narrow channel must always leave the vessel she is passing on the port hand.”

These rules were well received by all maritime nations. For example, in 1875, the U. S. Supreme Court heard the City of Washington case (92 US 31); wherein the Trinity House Rules were cited as the authority for a passing maneuver.

Finally, in 1846, Rules of the Road were enacted with statutory authority for enforcement. By the British Steam Navigation Act of 1846, the Trinity House Rule was adopted in substance. Included was a provision to collect a penalty from those masters who failed to obey. While these rules were only enforceable on English ships, since England was Queen of the Seas and the home of Lloyds of London, they were generally adopted by the leading maritime nations.

It should be mentioned here that it was during this same period of intense interest in the Rules of the Road that the now well known principle of “moderate speed” was first propounded. In 1845, the steamer Europa collided with the barque Charles Bartlett, in a thick fog, with heavy loss of life. It was established that immediately prior to the collision the Europa was making 12| knots. The admiralty jurists in rendering their decision, held the Europa totally at fault, and commented as follows:

“While no positive rule can be laid down as to the rate at which a steamer may or may not travel on the ocean . . . their lordships are of this opinion .. . that no steamer has a right to navigate at such a rate that it is impossible for her to prevent damage, taking all precaution probable; and if she cannot do that without going at less than 5 knots an hour, then she is bound to go at less than 5 knots, as will probably be the case in coming up the Thames.”

Thus, by the middle 19th century, the shipping fraternity commenced to have some semblance of uniformity as far as maneuvers to avoid collisions. The next urgent requirement was to establish a similar uniformity with respect to lights on vessels. From the time of the Rhodian Sea Law that required a signal fire for a vessel at anchor, until 1826, there was no prescribed system for lighting vessels underway. It was the general common sense practice to hang an oil lantern from the foremast to alert approaching traffic. With a statutory obligation for vessels to maneuver in a prescribed manner, it became important to know whether the white light dead ahead indicated a vessel at anchor, a sailing vessel, or a steamer underway.

It was with respect to such navigation lights that our young nation across the Atlantic had already set the pattern for Great Britain to follow. In 1826 the State of New York enacted a statute which required every steamboat navigating the rivers and lakes of that state at night to carry and show two good white lights, one near the bow and the other near the stern. While this was an inland waters provision, it was still the first legislative act concerning navigation lights. On July 7, 1838, the Congress of the United States enacted the first Federal statute to pertain to Rules of the Road. This Act, in part, reads as follows:

“An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam:

Section 10—And be it further enacted, that it shall be the duty of the master and owner of every steamboat running between sunset and sunrise to carry one or more signal lights that may be seen by other boats navigating the same waters, under the penalty of 200 dollars.”

Ten years later, on June 30, 1848, the Lords Commissioners of the British Admiralty, under the authority of the Steam Navigation Act of 1846, enacted the first high seas regulations for navigation lights. These rules ordered that a white masthead light, and red and green, port and starboard, sidelights be exhibited. The sidelights were to be provided with inboard screens to prevent both from being seen at the same time except from the direction of right ahead. It is interesting to note that this requirement remained practically unchanged to the present day. In addition, there were prescribed certain lights for pilot vessels and a common white light for all vessels at anchor.

Soon after the 1848 British Admiralty regulations concerning lights, the U. S. Navy Department issued the following Notice to Mariners:

“The subjoined instructions are forwarded from the Navy Department. That all United States steamers will carry the following lights when at sea during the night, viz: A white light at the foremast head, a green light on the starboard paddle box, and a red light on the port paddle box.”

Appended to this Notice were the diagrams and explanations of the British Admiralty for the prescribed lights.

With the 1846 statutory enactment of the Trinity House Rules and the 1848 regulations which prescribed uniformity in navigation lights, British naval and mercantile shipping, and in effect the shipping of the world, was theoretically ready to navigate without collisions, except for those caused by force majeure. Such was not to be the case, however, for the Trinity House Rules that said “ . . . each vessel shall put her helm to port, so as always to pass on the port side of each other,” took on a meaning that the Elder Brethren had never intended. Countless mariners commenced to navigate on the assumption that to comply with the existing rules of the road meant simply “port helm,” and nothing else; or, that in every situation of doubt, the helm was to be put to port. It can readily be seen that the potential results from this logic could be most undesirable, especially in the meeting situation where two vessels would normally pass clear, starboard to starboard, with no change in course. As a result, collisions did not decrease; in fact there was a noticeable increase, which resulted in severe criticism and clamor from maritime circles for more effective regulations.

On February 14, 1852, the Lords Commissioners of the British Admiralty issued instructions to a Select Committee, composed of Royal Naval Officers and an Elder Brethren of the Trinity House, to inquire into measures that could be taken to prevent collisions. The first recommendations of this committee were adopted into law by the British Merchant Shipping Act of 1854. This Act contained rules for compulsory lights for sailing vessels and for signals for all vessels. This was the first enactment of a regulation that required the use of a horn or whistle. The regulation read as follows:

“Article 10—Whenever there is a fog, whether by day or night, the fog-signals described below shall be carried and used, and shall be sounded at least every five minutes, viz:

(a) Steamships underway shall use a steam- whistle, placed before the funnel, not less than eight feet from the deck.

(b) Sailing vessels underway shall use a foghorn.

(c) Steamships and sailing ships, when not underway, shall use a bell.”

This Select Committee did not rest on their laurels with this legislation but continued work with renewed vigor. The need for more effective rules was vividly illustrated by the statistics in the Wreck Register for the period from 1854 to 1864, as compiled by the British Admiralty. These statistics were as follows:

Total collisions: 2,344

Number of collisions from the following preventible causes:

Neglect to carry proper lights, misapplication of the rules, error of pilot, want of seamanship, general negligence and error in judgment: 1,566

Number of collisions from accident:

Parting of cables, want of sea room, inevitable collision: 702

Number of collisions from unknown causes: 76

It can be calculated that in that seven-year period 70 per cent of the collisions were directly attributable to misapplication of the rules or failure of the rules to provide. Following two major collisions in clear weather a short distance off the English coast, wherein over a hundred lives were lost, there were many outspoken advocates for the adoption of a broad general rule which read as follows:

“A steamship having another end on shall port her helm; on her port side, shall port her helm: on her starboard side, shall starboard her helm, stop and reverse if necessary.”

This general rule was not adopted but it undoubtedly had some effect on the ultimate revision.

A nautical journal of that period commented succinctly on the confusion in the maritime world by the following poem:

“The Rule of the Road is a paradox quite,

When sailing your vessel along;

If you go to the left, you’re sure to go right,

If you go to the right, you’ll go wrong.”

The same sentiments were also well stated in a paper presented by one of the leading admiralty experts of the day, Captain Alfred Drew, which was read to the Select Committee in 1861. He urged the adoption of the rules later enacted in the Maritime Act of 1863. A portion of his paper reads as follows:

“Let us here recapitulate the changes in the law from 1840 to 1861;

First: Six years of a stringent non-compulsory rule of port helm for steamers. During which the old sailing rules remained untouched.

Second: Five years of a compulsory but pliant law of port helm for steamers only. The old sailing rules remaining untouched.

Third: Eleven years of a compulsory stringent law of port helm applicable to all classes of vessels. Total abolition of the sailing laws.

In 1863, the universal desire for a more comprehensive set of rules and the abrogation of the “Port Helm” rule was finally satisfied by the British Merchant Shipping Act of 1862. By this Act, which went into effect on June 1, 1863, the existing regulations, including such of the Trinity House Rules as had not already been superseded, were expressly or impliedly repealed, and, in lieu thereof, was substituted one complete code consisting of twenty rules.

The United States did not delay in adopting these comprehensive rules. By the Act of April 29, 1864, 13 Stat. 58, they were substantially enacted as law. On May 4, 1864, the then Secretary of the Navy, Mr. Gideon Welles signed General Order No. 34, which reads as follows:

“Navy Department, May 4, 1864

The Provisions of the following act “fixing certain rules and regulations for preventing collisions on the water,” to take effect on the first day of September 1864, are adopted for the naval service of the United States from this date. As most of the collisions occur from the non-observance of Article 16, it is particularly enjoined upon commanding officers, in approaching another vessel, to slacken and stop in time to prevent the possibility of collision:

AN ACT fixing certain rules and regulations for preventing collisions on the water.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that from and after September one, eighteen hundred and sixty-four, the following rules and regulations for preventing collisions on the water be adopted in the navy and mercantile marine of the United States: Provided, That the exhibition of any light on board of a vessel of war of the United States may be suspended whenever, in the opinion of the Secretary of the Navy, the commander-in-chief of a squadron, or the commander of a vessel acting singly, the special character of the service may require it

(Omitted here are the twenty articles that follow the foregoing preamble in the original)

For the next 20 years British and U. S. shipping navigated with a marked degree of uniformity. One of the most interesting aspects of this period was the fact that for the first and last time the rules adopted by the U. S. applied not only to the high seas but to inland waters as well. During these two decades, admiralty experts of both countries took note of certain features in the rules that needed to be clarified, such as the type and interval of fog signals, i.e. a prolonged blast at intervals of not more than two minutes, which were not spelled out in the 1864 rules. Consequently, in 1884, the British amended their rules, clarifying these features. The United States did likewise and by the Act of March 3, 1885, 23 Stat. 438, patterned on the British Revised Code, adopted the “Revised Regulations for Preventing Collisions at Sea.”

Unfortunately, while this act clarified and amplified fine points of the rules, a repealing clause was appended to the act which was to have far reaching effect, to wit:

“. . . all laws and parts of laws inconsistent with the foregoing revised international rules and regulations for the navigation of all public and private vessels of the United States, are hereby repealed, except as to the navigation of such vessels within the harbors, lakes and inland waters of the United States.”

This meant that various local rules that had been adopted by the states for different bodies of water retained their authority. Thus was created the dichotomy that exists to this day between the high seas rules and the so-called Inland or Pilot Rules.

By 1889, most of the maritime nations had adopted similar rules, so that practically these were the first “International” Rules of the Road. They were not legally international, however, except for a provision of reciprocity that some of the nations accepted. To correct this shortcoming, representatives of over thirty of the world’s maritime powers met in Washington, D. C., in 1889, to discuss an international code and to suggest such further changes and modifications as experience had shown to be necessary. The recommendations of this convention were adopted by an Act of Congress on August 19, 1890, 26 Stat. 320, to go into effect when proclaimed by the President. Finally, after a seven year delay occasioned by the failure of several nations to ratify the convention, the first truly International Rules went into effect in 1897.

The final phase in the development of the Rules is, of course, well known. From 1897 until January 1, 1954, they remained unchanged, except for the previously mentioned minor “right rudder” terminology change. It should be mentioned that there was an attempt to revise the Rules in 1929, when an International Convention for Safety of Life at Sea met in London. Proposed changes in the existing Rules were adopted by the official delegates to the Convention and were referred as an Annex of the Convention for favorable action to the legislative bodies of the signatories. Such legislative action was not forthcoming, however, and this attempt at revision fell by default.

In 1948, the International Conference on Safety of Life at Sea was convened in London, where the present revised International Rules were unanimously agreed upon. The 82nd Congress adopted the revised rules for the United States as Public Law 172 on October 11, 1951, and authorized the President to fix their effective date by presidential proclamation. Similar legislative steps have since been taken by 46 of the participating governments. In December, 1952, the United Kingdom (the controlling authority for the conference) announced that “substantial unanimity” had been reached between the participating nations. Accordingly, by Presidential Proclamation 3030, dated August 15, 1953, the President proclaimed January 1, 1954, as the date on and after which the International Regulations for Preventing Collisions at Sea of 1948 would be in force. The rest is now' history.

Having observed the development of the Rules during the past 2500 years, it would appear that if one particular group were to be singled out for having been most responsible for our present Rules to prevent collisions, it would be those harassed admiralty experts who comprised the Select Committee in London during the period from 1852 to 1862. These were the men who drafted not only the rules which form the structure of the present rules, but, who set forth the “General Prudential” and “Precaution” rules with such clarity that they have remained unchanged. This is indeed a tribute to the thoroughness of their endeavor. No little credit can be attributed to the fact that the draftsmen were all experienced mariners, who would not tolerate legalistic verbiage that would only serve to negate the end result. A quote, by the eminent jurist Judge Coxe, in the Columbia Law Review, perhaps, most aptly explains their accomplishment:

“Compared with the law governing other relations sea law is one of the exact sciences. ... It has been untouched by the bungling hand of the legislative tinker.”