The Burden of Being Privileged

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International Rule 21: “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. . . ”

International Rule 22 (words in brackets, added to 1960 Rules, become effective 1 September 1965): “Every vessel which is directed by these Rules to keep out of the way of another vessel shall, [so far as possible, take positive early action to comply with this obligation, and shall], if the circumstances of the case admit, avoid crossing ahead of the other.”

The Rules of the Road are designed to prevent collisions at sea, yet Rule 21 not only allows the development of collision situations, it encourages and even appears to command it. It is not good seamanship to steam into danger knowingly, yet a literal application of Rule 21 requires that a “privi­leged” vessel stand-on until danger of col­lision is imminent. Only then is the vessel free to maneuver in a seamanlike manner. This is a rather dubious privilege.

Over the years, the courts have repeatedly emphasized the obligation of the “privileged” vessel to maintain her course and speed. Whenever the “privileged” vessel has failed to respect this obligation, and collision has resulted, the burden of her privilege is quickly revealed. The “privileged” vessel has no choice within the law. In The Piankatank, 4 Cir., 87 F(2d) 806, page 810, the Court stated:

Where two courses are open to a vessel, and particularly the privileged vessel, one to fol­low the prescribed Rules and the other to depart from them, the duty is imperative to observe the Rules, and to assume that an ap­proaching vessel will do likewise, until after the danger has become so manifest as to show that there is no proper choice of judgment other than that of departing from the rules.

The necessity for the “privileged” vessel to hold her course and speed is so pronounced that the courts have held the vessel blameless even where an early departure from the Rules might have avoided collision. In Belden v. Chase 150 U. S. 674, 699, the Court held that:

Obedience to the Rules is not a fault even if a different course would have prevented the collision, and the necessity must be clear and the emergency sudden and alarming before the act of disobedience can be excused.

In the classic case of The Delaware, 161 U. S. 459 (1896), the Court clearly spelled out the principle governing the position of the “privileged” ship by saying:

The cases of The Britannia, 153 U. S. 130, and The Northfield, 154 U. S. 629, 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 (a course alteration to starboard), at least in the absence of some distinct indication that she is about to fail in her duty.

Numerous other cases could be cited to the same effect. In all, the “privileged” vessel is given no option but to hold course and speed until in extremis. And this principle is so firmly fixed that no hindsight is permitted to prejudice her privilege. The vessel must hold on, and because this duty is so rigorous, she is exonerated from its consequences up to the point where collision is probable and even beyond. It is small wonder then that the aver­age seaman is so impressed with his “privi­lege”—his duty—to hold his course and speed when he sights a vessel on his port bow, cross­ing from port to starboard.

Yet, in spite of the clear-cut nature of the Rules, hundreds of collisions occur each year, and a large percentage involve vessels cross­ing. By far the largest percentage of these cases happen in restricted waters where either a pilot is on board the vessel or the combina­tion of heavy traffic and restricted waters in­sures that a relatively high degree of vigilance can be expected from those vessels en­countered. In many of these cases—possibly most—the vessels are navigating in channels and their freedom to maneuver, as regards change of heading, is severely restricted.

₀ⁿder such conditions, it is imperative that

ve_s^eser^eSK^{1S aCti}°ⁿ’ ^viz’> ^the “privileged” of •⁶ P^rccli^ctable- Because the majority sta ^C° ^1S'*°^nS happen under such circum- tio ^nC<'f’ ^understandable that the obliga- a d ° -^^le "privileged” vessel to stand-on is d_(n,^0rn,^mant theme in the decisions handed _tu - j y '•he courts. Where the Rules apply, duty is unquestionable, of °^^unately this stress on the obligation Greatprivileged” vessel to stand-on has _mj^{a e a} dangerous misconception in the s of many seamen. The question of icaf|^re a ⁶ ^^ul^cs take force has been specif- _ti y ^ehⁿed between inland and interna- _u^a waters. In inland waters, traffic is ^a y heavy; much if not most of it is en­countered in narrow channels or restricted waters; the risk of collision is ordinarily much greater than it is on the high seas; and the Rules are almost in constant force. In these waters the seamen and the pilot rightly regard themselves bound by the Rules at all times. But what of the high seas? Does the same situation obtain? It is here that mis­conception and confusion exist, and many—- possibly most—men in charge of a bridge watch have no good answer to this question. The most common conception is probably that the Steering and Sailing Rules are ap­plicable to the limit of visibility. But such an assumption is not only wrong, it is dangerous; for it removes the means of exercising good seamanship when a vessel sighted on the horizon approaches steadily on a. collision course. Neither of the vessels are bound by the Rules until they approach close enough to one another so that the actions of one will affect the other. Just what this distance is cannot be defined with precision, for it will vary with the vessels involved and the condi­tions obtaining at the time. There is a point, however, beyond which the Rules do not apply, and it lies within the limits of visibility in clear weather.

Knight’s Modern Seamanship states:

The exact time when the Rules must be ap­plied is difficult to define. Mr. Justice Clifford, in the N. Y. and Liverpool Co. v. Rumball, said, “Rules of navigation . . . are obligatory upon vessels approaching each other, from the time the necessity for precaution begins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid danger remain. They . . . are equally inapplicable (emphasis supplied) to vessels of every description, while they are yet so dis­tant from each other that measures of pre­caution have not become necessary to avoid a collision.” A British judge, Lord Esher, in the Banshee, said, “They [the Rules] only apply at a time when, if either of them [vessels] does anything contrary to the Regu­lations, it will cause danger of collision. None of the Regulations apply until that time has arrived[Emphasis supplied.] “This caution [risk of collision should be deemed to exist if the bearing does not appreciably change] might be extended to the distance where the two approaching vessels are so far apart that either one or both could change course or speed without affecting the other vessel.”

40

Farwell, in The Rules of the Nautical Road says: “. . . we cannot safely take the law into our own hands and shirk our duty to hold course and speed unless we stop or haul off so early that a collision cannot possibly ensue” (Emphasis supplied.)

When, then, does Rule 21 apply? In Griffin’s On Collision, it states that “No precise time can be fixed at which the rules of naviga­tion, whether statutory or not, begin to govern the navigation of vessels in a particular situation.” It goes on to say that “. . . the obligation of a ‘privileged’ vessel to hold her course begins to attach or . . . depends, not only on the distance between vessels, but on the relation of their courses to each other, on their speed, at night on the character of the waters which they are navigating, and on other infinitely varying conditions.” The dis­tance at which side lights are visible at night has also been put forward as the governing factor. Griffin says:

In McWilliams v. the Vim, 12 Fed. 906 (1882), it was suggested that, on a night such that side lights were visible at a distance of two miles (the required minimum of visibility) that distance “ought also by necessary im­plication to be taken as the distance, if the lights are seen, within which vessels should be required to keep their course and deviation from it held to be at their own peril.” . . . The distance might be unreasonably great, if they were moving very slowly, or unreasonably short if applied to very fast vessels.

What is suggested by this interpretation is that there might also be need for revision of the Rules regarding the range of side lights, with the range increased in proportion to the speed of the vessel.

All of the foregoing interpretations and de­cisions clearly state or imply that vessels can be within sight of one another and yet out­side the limit of applicability of the Rules. The limit is vague and in most open sea ap­proaches would be determined by the speed with which the vessels are closing. The im­portant thing, however, is that a course change is allowable for the vessel on the star­board hand, before he assumes the burden of being privileged. But it should be early, it should be ample, and it should be to the right.

The application of Rule 21 to a course al­teration to port should also be noted. The Rules apply at a time when, if either of the vessels does anything contrary to the Regula­tions, it will cause danger of collision; and the Rules require that the burdened vessel either reduce speed or alter course to star­board. Under such conditions, a change to port by the “privileged” ship is clearly hazardous and contrary to the spirit as well as the letter of the Rules. But the vessel on the starboard hand is under no obligation to stand into danger, provided she takes ac­tion in good time. It is a standing rule of good seamanship to give all vessels a wide berth where circumstances allow, and only a faulty and narrow conception of the Rules

Captain Cahill graduated from the U. S. Merchant Marine Academy in 1943 and has sailed continuously in the Merchant Marine ex­cept for a 20-month leave of absence from 1956 to 1958 for the purpose of attaining his master’s degree at New York University. He joined the United States Lines Com- ⁿy as a chief officer in 1945 and has sailed as a ' ster with this company since 1961. He is presently aster of the SS American Traveler.

will view Rule 21 as overriding the rules of good seamanship.

to ^VT^,Cn °^{n t}^^{le seas}> many seamen haul the right when faced with a single vessel ^Pproaching on the port hand on a collision ₍l ^Urse> and if it is done early, their right to o so is never questioned by the courts be- _SQ^{Use no} collision results. But in the eyes of w‘^ne seamen, the obligation to stand-on no ^Cn P^r‘^vileged” is ironclad, and admits of Th ^ex*j^eP'^;tons until the vessel is in extremis. _eva^Cy ° ^not realize that there is time for legal the⁸¹')! ^aCt'^on *ⁿ th^e period between sighting ot er vessel on the horizon and the point p ^Cj,^rc ,^the Rules begin to take effect. A In ^<,^{1< SS}'^ona^ Note published in the U. S. Naval Uute Proceedings in 1959 is of interest in l_ei^^{S r}^^sP^ect.* The author discussed at some . ^the problem under examination here, _ne i ^{1S conc}iusion appeared to be that he alt> ^C<^ ^{a c}^^anS^e m Rules before he could h_e^Cr.^{C0Urse w}^^en “privileged”; that is until tio ^{lH extremis}- iⁿ a description of a situa- ⁿ e was once faced with, he says:

ah ⁶ '^*^{tS a sma}h freighter were observed bow*^{1 t}^^{lrCe m}ii^es away, broad on the port ■ ^W’ enviously on a crossing course. A radar established that a collision situation fisted; as the “privileged” ship, we were u°und by the Rules to hold course and speed ¹ the situation became in extremis. Our _stj.^arin§ was steady, the distance closing, and ^ no apparent action was being taken, th ^{Cn a}k°^{ut one} half mile apart, thinking ^ ^a* Perhaps the other ship’s watch was °^zing, I ordered a slight change of course to

of ./'l’ .j'h Nibbs, “Problems in Revising the Rules

Tun*.                    U- S. Naval Institute Proceedings,

•June 1959, p. 131.

The Burden of Being Privileged 41

the right, and sounded one blast. A second small ship, to starboard, and privileged, pre­vented my turning right any more. I then sounded five short blasts to request his inten­tions; obtaining no response, I technically disobeyed the rule requiring the privileged ship to maintain course and speed by slowing materially, ordering hard left rudder and sounding two short blasts. The other ship passed ahead, from port to starboard, clear­ing by 150 yards, serenely maintaining course and speed.

Later, Captain Nibbs states, “Excepting for requesting the intentions of the burdened ship by sounding five or more short blasts, the privileged ship can only wait and hope [Em­phasis supplied], and perhaps decide that an in extremis situation has been reached while still a reasonable distance off. . . . ”'

Captain Nibbs’s attitude—and it is a com­mon one—is easy to understand, for the courts have always stressed the inviolability of the Rules. The limitation of applicability of the Rules, however, has received scant attention. This is also understandable, for collisions do not occur where the Rules do not apply. And a turn to starboard before the Rules apply will not lead to collision, and hence does not become a concern of the court.

Vivid illustration of the point under ex­amination here is given in Griffin’s On Colli­sion, in a case involving the steamships Al­leghany and Pomaron.

The collision occurred in the open sea, on a clear day shortly before noon. The vessels were on crossing courses, the Alleghany being the giving-way vessel. Her officer was en­gaged in working out observations; she had no lookout; and no one knew of the Poma- ron’s presence. The Pomaron sighted the Alleghany an hour before collision and kept her under observation. Both vessels held course and speed until about a mile apart, some five minutes before collision, when the Pomaron, whose officer could see no one on the Alleghany's bridge, blew one whistle and changed course slightly to starboard. The Alleghany, discovering the Pomaron for the first time, blew two, gave left rudder, and con­tinued at full speed to get by. The Pomaron thereupon gave left rudder and reversed, but her bow struck the Alleghany's after body and the Alleghany sank. The Allegany's fault was obvious and the District Court expressed

great reluctance to hold the Pomaron, but con­cluded (1) that the Pomaron had violated Article 21 in failing to hold her course; (2) that it did not appear that this did not con­tribute to the collision; and (3) that, at the time when the Pomaron took action, the danger was not so immediate as to excuse her under Article 27—the Special Circumstances rule.

By holding to her “privilege” until it became a burden the Pomaron not only suffered col­lision, but was also held at fault with the grossly negligent Alleghany. A 20-degree, or even a ten-degree, course change to star­board, early in the situation, would have put the Pomaron across the Alleghany’s bow with ample margin—and probably without the Alleghany even being aware of it.

Further comment on the “hold-on” atti­tude is provided by an article in the January 1963 issue of the Proceedings of the Merchant Marine Council entitled, “The Maneuver of the Last Safe Moment.” The author, a Ger­man shipmaster, states that “. . . practical navigators do not adhere to the letter of Rule 21.” But further on, he appears to give a somewhat literal interpretation to the obligation to stand-on by saying:

If the distance decreases further than this [two miles] in cases where the other vessel is obliged to keep out of the way, the conning officer will become increasingly nervous. The first doubts make themselves felt regarding compliance with the duty of giving way on the part of the other vessel. If the distance de­creases to one nautical mile or possibly less, one feels under considerable pressure, as no reason can be seen for the irresponsible con­duct of the other vessel.

Elsewhere, he states that, “The stand-on vessel, of course, has to maintain her speed up to this moment, namely until the giving­way vessel alone cannot avoid collision.” He also observes that, “These findings demon­strate that Rule 21, Int. Regulations, for objective reasons, does not correspond to prac­tical needs” (author’s italics).

We concur with this conclusion. There is a definite need for a further qualifying note to the effect that a turn to starboard is permitted if made so early as not to affect the other vessel. The mental block that some mariners have regarding this Rule should be removed so that it does not force them into the jaws of collision.

As the situation stands, Rule 21 is ade­quate insofar as the burdened vessel is aware of and respects her obligation, and the amend­ment to Rule 22 is recognition of the impera­tive need for early action by the burdened ves­sel. But in many cases the watch officer is not aware of the approach of another ship. He may be busy in the chart room (as was the Alleghany’s mate); or he may be en- grosssed in a conversation with the helms­man. And these are but the most innocent of a host of reasons why a sharp lookout— which is one of the watch officer’s prime re­sponsibilities—is not maintained. Unfor­tunately an inadequate lookout is not un­common, and on some vessels it may be nearer to the rule. There is also the stubborn seafarer, who likes to see if the other ship will give way; or the coaster in the North Sea with an eight-year-old child alone on the bridge at the wheel during meal time. There is also the not unknown case where the bur­dened vessel, through confusion, thinks her­self privileged. In short, the burdened vessel that ignores or is unaware of her obligation to give-way is far too common.

These ideas are not new. The experienced master and watch officer are well aware of the danger inherent in Rule 21, but many are not cognizant of the limits to the burden of being “privileged.” This is not counsel to break the Rules, because rules cannot be broken if they do not yet apply.

As a final suggestion: if it is not deemed advisable to amend Rule 21 so that all sea­men can abide by it clearly and safely, it is suggested that the use of the terms “bur­dened” and “privileged” be reversed, for it is more a burden than a privilege to be “required” to hold course and speed when a vessel on your port bow holds relentlessly down to close quarters on her collision course.