court held that a speed of five miles an hour was too fast, due to the fact that the ship was carrying its main sail and mizzen sail.

In the well-considered English case of the ZADOK,** a sailing vessel was held at fault which was carrying practically all her canvas; and the true criterion was announced to be the ability to steer.

"It is the duty of the ship, whether she be a sailing vessel or a steamer, to moderate her speed as much as she can, yet leaving herself with the capacity of being properly steered."

Steamers must Go so Slow in Frequented Waters as to be Able to Stop on Seeing Other Vessel

The rule requires the speed of steamers to be such that they can stop on seeing the approaching vessel, assuming her also to be going at a moderate speed. This seems to be the result of the recent decision of the UMBRIA," which reviews the question of fog speed and fog maneuvers at length. Despite the high authority of the court, and the special respect which marine lawyers pay to the opinions of Mr. Justice Brown, this does not seem to be a satisfactory or practical test. In the first place, it makes us measure a man's conduct by the motions of the other vessel, which he could not have known at the time; and we are, therefore, trying him on facts developed long afterwards in the court room, and not on the facts as they appeared to him.

In the next place, the fog may be so thick that one can hardly see the stem of his own vessel, much less an approaching vessel, even though only a few yards off. Hence the rule, carried to its logical consequences, would require the vessel to anchor, and then, as Mr. Justice Clifford says in the Colorado," she is in danger from vessels astern.

439 P. D. at page 116.

44 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053.

45 91 U. S. 692, 23 L. Ed. 379.

In the next place, it is a very uncertain test, Different steamers can stop in different distances, depending on the power of their engines. Hence this test implies that the navigator must know the handiness of the other steamer as well as his own.

The rule, though expressed in broad terms in the cases, has been applied in its strictness only to collisions happening in much-traveled lanes of navigation. It would be carrying it to extremes to apply it literally to the entire expanse of the high seas.""

There is another rule, simpler, dependent on knowledge of his own vessel only, and in its practical results much safer. It is laid down in the ZADOK CASE, above cited, and in many Supreme Court cases before the UMBRIA. It cannot be better expressed than to quote Justice Clifford's opinion in the Colorado: "Very slow speed, just sufficient to subject the vessel to the command of her helm." In the MARTELLO, the Supreme Court says that the vessel must "reduce her speed to the lowest possible point consistent with good steerageway."

48

As samples of what speed the courts consider immoderate, we might cite the PENNSYLVANIA," where a speed in a steamer of seven miles an hour at a point two hundred miles out at sea, but in the track of navigation, was condemned; and the MARTELLO," where a speed of six miles an hour in the lower harbor of New York was thought too fast.

46 Dordogne, 10 P. D. 6; Moore, Rules of the Road, 38; Marsden, Collision, 355, 357.

47 91 U. S. 692, 23 L. Ed. 379.

48 153 U. S. at page 70, 14 Sup. Ct. 723, 38 L. Ed. 637.

49 19 Wall. 125, 22 L. Ed. 148.

50 153 U. S. 64, 14 Sup. Ct. 723, 38 L. Ed. 637. See, also, La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973; Beaver, 219 Fed. 134, 135 C. C. A. 32; affirmed 243 U. S. 291, 37 Sup. Ct. 270, 61 L. Ed. 726; also 253 Fed. 312, 165 C. C. A. 94; Quinette v. Bisso, 136 Fed. 825, 69 C. C. A. 503, 5 L. R. A. (N. S.) 303; Nord

PRECAUTIONS WHEN APPROACHING FOG BANK 123. Vessels approaching fog banks are bound to use the precautions of sound signals and moderate speed.

As the object of fog signals and slow speed is the protection of other vessels, the law requires a vessel to take these precautions as she approaches a fog bank, and even before she enters it, for she cannot know what is in the bank ahead of her."1

The laws of acoustics are so little understood, and the failure to hear signals in fog so inexplicable, that such failure is not negligence under the decisions."2

STEERING AND SAILING RULES IN OBSCURED WEATHER

124. The rules do not apply when vessels are not and cannot be aware of each other's proximity, but they apply when they have definitely located each other, though not so rigidly, and the special precaution rule has more scope.

In a fog, when vessels cannot see or locate each other, the ordinary steering and sailing rules do not apply, for they presuppose a knowledge of the other vessel's character, bearing, and course, which cannot be known in fòg.53

amerika (D. C.) 191 Fed. 997; Sagamore, 247 Fed. 743, 159 C. C. A. 601.

§ 123. 51 Milanese, 4 Asp. 438; Perkiomen (D. C.) 27 Fed. 573; Julia Luckenbach (D. C.) 219 Fed. 600, affirmed Indra Line v. Palmetto Phosphate Co., 239 Fed. 94, 152 C. C. A. 144; St. Paul [1909] P. 43.

52 Spencer, Marine Coll, 138, 139. Columbia (D. C.) 104 Fed. 105; Curran, [1910] P. 184.

124. 58 August Korff (D. C.) 74 Fed. 974; Celtic Monarch (D. C.) 175 Fed. 1006, 1008; Geo. F. Randolph (D. C.) 200 Fed. 96.

The passing signals under article 28 of the International Rules and article 18, rule 8, of the Inland Rules, are expressly limited to cases when the vessels are in sight of one another.54

"But it is urged that the Negaunee, being on the port tack, was, under the seventeenth rule of section 4233, Rev. St., required to keep out of the way of the Portch; that the Portch had the right of way, and was to hold her course, and it was the Negaunee's duty to give the way or turn out; and this rule would be aptly invoked if the proof showed that those in charge of the Negaunee had sufficient notice of the proximity of the Portch to enable them to execute the proper movements to give the Portch the way. The proof, however, shows, as I have already said, that at the time the Negaunee's officers were apprised of the presence of the Portch they were so near together, and a collision so imminent, that it was futile to attempt to keep out of the way; and it seems to me that, under the circumstances, rule seventeen was inoperative, and rule twenty-four of the same. section, which required that due regard must be had to all the dangers of navigation, and to any special circumstances which may exist in any particular case rendering a departure from the general rules necessary in order to avoid immediate danger, became the guide of both parties; that is, that each party, under an unexpected impending peril, must do what he can promptly to avoid it." 5.

"But when you speak of rules which are to regulate the conduct of people, those rules can only be applied to circumstances which must or ought to be known to the parties at the time. You cannot regulate the conduct of people as to unknown circumstances. When you instruct people, you instruct them as to what they ought to do under circumstances which are, or ought to be, before them. When you

54 Aurelia (D. C.) 183 Fed. 341; North Point (D. C.) 205 Fed. 958; Amagansett, 220 Fed. 827, 136 C. C. A. 437.

55 Negaunee (D. C.) 20 Fed. 921.

say that a man must, stop and reverse, or, I will say, slacken his speed, in order to prevent risk of collision, it would be absurd to suppose that it would depend upon the mere fact of whether there was risk of collision, if the circumstances were such that he could not know there was risk of collision. I put some instances during the argument to show that that was so. The rule says that a steamer approaching another vessel ought to slacken her speed if, by going on, there would be risk of collision. But, suppose the night were quite dark, and the other ship was showing no light at all, it would be wrong to say, with regard to the conduct of those on the steamer, that when they have not the means of knowing, and could not possibly know, that there was another ship in their way, or near, they ought to see that the other ship was in the way or approaching, and that it is no excuse that they did not see them. Take another case: If two vessels are approaching, each on a different course, which will cause them to meet on a high headland, so that, until they are absolutely close, they cannot see each other, it is quite obvious that, if both are steamers, they ought, on the suggested reading of the rule, to stop and reverse., But how can you regulate their conduct if neither can see the other until they are close together? It is absurd to suppose that you could regulate their conduct, not with regard to what they can see, but to what they cannot see. Therefore the consideration must always be, in these cases, not whether the rule was in fact applicable, but were the circumstances such as that it ought to have been present in the mind of the person in charge that it was applicable?"

56 Beryl, 9 P. D. 138, 139.