the cause of action arose, or the law of the flag if it arose on the high seas, and if shown what that law is.40

46

But cases often arise where vessels of different flags collide. In such case the rights of injured parties against their own ship are governed by their flag; but there is no remedy against the other ship, under the doctrine of Conflict of Laws that, if the laws are different, neither law would be applied.1

EFFECT OF CONTRIBUTORY NEGLIGENCE

116. Contributory negligence bars recovery.

There is one anomaly in the decisions on the subject. Although the doctrine finds its place in the admiralty law only from the fact that it is maritime by nature, it is held that, even in the admiralty courts in suits for such causes of action contributory negligence bars recovery.18

Admiralty courts have their own doctrine on the subject of contributory negligence. In collision cases, where both are negligent, the damages are equally divided.

In personal injury cases, not fatal, the damages are divided, not equally, but much as the judge may think equitable, considering the circumstances and the relative fault of the parties.49

46 Lamington (D. C.) 87 Fed. 752; Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 17 Sup. Ct. 572, 41 L. Ed. 1004; Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958: Manning v. International Mercantile Marine Co., 212 Fed. 933, 129

C. C. A. 453.

47 Middlesex (D. C.) 253 Fed. 143; Sagamore, 247 Fed. 743, 159 C. C. A. 601.

§ 116. 48 Robinson v. Detroit & C. Steam Nav. Co., 73 Fed. 883, 20 C. C. A. 86; Quinette v. Bisso, 136 Fed. 825, 69 C. C. A. 503, 5 L. R. A. (N. S.) 303.

49 Max Morris, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586, and cases

In other words, in all other admiralty cases contributory negligence reduces recovery, but does not defeat it. But in this case the rigid doctrine of the common law as to contributory negligence is applied.

CONSTRUCTION OF PARTICULAR STATUTES

117. Assuming the power of legislation over the subject, state or federal, as defined in the above discussion, the question whether any given statute gives a remedy in rem is a matter of construction.

Statutes worded substantially as Lord Campbell's Act are usually construed as not so intended. It has been seen that the House of Lords so construed it in the VERA CRUZ,50 and that the Supreme Court so construed the Louisiana statute in the CORSAIR. Judge Benedict placed a similar construction on the New York statute in the Sylvan Glen.52 And Judge Hughes so construed the Virginia statute in the Manhasset.5 Since that decision the Virginia statute has been amended, and the Circuit Court of Appeals for this circuit has held that in its present form, as found in section 2902 of the Virginia Code of 1887, it gives the right of procedure in rem.54

The Washington statute is held to give no right in rem.55

51 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727.

52 (D. C.) 9 Fed. 335.

53 (D. C.) 18 Fed. 918.

54 Glendale (D. C.) 77 Fed. 906; Id., 81 Fed. 633, 26 C. C. A. 500. 55 Alaska (D. C.) 225 Fed. 645.

CHAPTER XI

OF TORTS TO THE PROPERTY, AND HEREIN OF COLLISION

118. Rules for Preventing Collisions, the Different Systems, and the Localities where They Apply.

119. Preliminary Definitions.

120. Distinctive Lights Prescribed for Different Vessels.

121. Sound Signals in Obscured Weather.

122. Speed in Obscured Weather.

123.

Precautions when Approaching Fog Bank.

124. Steering and Sailing Rules in Obscured Weather.

RULES FOR PREVENTING COLLISIONS, THE DIFFERENT SYSTEMS, AND THE LOCALITIES WHERE THEY APPLY

118. There are four different sets of navigation rules which American courts may have to administer, namely, the International Rules, the Inland Rules for Coast Waters, the Lake Rules, and the Mississippi Valley Rules.

The torts most prolific of litigation in the admiralty are collisions between vessels. To that cause is due the loss of many lives, with untold valuable property. Until the nineteenth century had more than half elapsed, there were no rules regulating the duties of approaching vessels, and navigation was a happy-go-lucky experiment, in which the unfortunate seafaring man was at the mercy not only of his own captain, but of the commanders of approaching vessels as well.

The common acceptation of the word "collision" in marine law is the impact of two or more vessels.1

§ 118. 1 Burnham v. China Mutual Ins. Co., 189 Mass. 100, 75 N. E. 74, 109 Am. St. Rep. 627; Newtown Creek Towing Co. v. Etna Ins.

The earlier statutes contented themselves with requiring vessels to carry lights at night, for until 1838, even in this country, that was not a matter obligatory, though the courts had held that under the circumstances of particular cases it was required of a moving vessel to show a light on approaching another vessel as a precaution demanded of a prudent navigator.2

In England, though special statutes had prescribed rules for special cases, no code of rules intended to regulate the navigation of vessels in relation to each other was promulgated until under the statute of 25 & 26 Vict., the regulations prescribed by the orders in council were put in force as of June 1, 1863. These were intended to prescribe not only the lights which vessels must carry at night, but all possible contingencies, including their duties in a fog, the relative duties of steamer to steamer, sail to sail, and steamer to sail. They were enacted in substantially the same form by Congress on April 29, 1864, and constitute. section 4233, Rev. St. U. S.3

These rules, however, though regulating lights, and the proper methods of steering and sailing, prescribed no signals except during fog. This defect in our country was remedied by the board of supervising inspectors, who, by virtue of authority conferred on them by section 4412, Rev. St., U. S. Comp. St. § 8166 (to establish regulations to be observed by steam vessels in passing each other, copies

Co., 163 N. Y. 114, 57 N. E. 302; Cline v. Western Assur. Co., 101 Va. 496, 44 S. E. 700; Chandler v. Blogg, [1898] 1 Q. B. 32; Margetts & Ocean Accident & Guarantee Ass'n, In re, [1901] 2 K. B. 792. But if we take the Corsair, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727, literally, it looks as if the Supreme Court included in the term the striking of a Mississippi mud bank!

2 Osprey, 1 Spr. 245, Fed. Cas. No. 10,606. Louisiana, 21 How, 1, 16 L. Ed. 29; 1 Parsons, S. & A. 550.

3 They are now in the main the Mississippi Valley rules, though amended in many particulars since 1864. U. S. Comp. St. §§ 7942

247 of such regulations to be posted in conspicuous places on such steamers), provided signals by whistle, which enabled masters of approaching vessels to indicate to each other their exact intentions. These rules governed all vessels in American waters-even foreign vessels. Though admirable in their general scope, they were yet far from perfect, and the next advance was the enactment of the International Rules of 1885. They went into force in this country on March 3, 1885, but they were expressly limited to the high seas and coast waters. And so we had two sets of rules in force-the rules of 1864, embodied in section 4233, Rev. St., supplemented by the Supervising Inspectors' Rules, all applying only to inland waters, and the International Rules of 1885, applying to the high seas and

coast waters.

In the DELAWARE," the Supreme Court decided that the line between the two was the place of taking a local pilot; that everything on regular pilotage ground was inland, and everything outside was high seas or coast waters.

In 1889 representatives from the leading maritime nations met in Washington by invitation of our government, still further elaborated the code of navigation, and recommended to their respective principals to adopt the result of their deliberations. On August 19, 1890 (26 Stat. 320), Congress enacted it into law, to go into effect, however, at a time to be fixed by presidential proclamation.

In some particulars these rules were unsatisfactory, and they remained in a state of suspended animation till July 1, 1897.

They were further amended by Act May 28, 1894, and Act June 10, 1896, and on December 31, 1896, the proc

4 Sarmatian (C. C.) 2 Fed. 911.

5161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771.

28 Stat. 82.

7 29 Stat. 381.

8 29 Stat. 885.