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The difficulty in applying this rule has usually arisen in drawing the line between a crossing vessel and an overtaking vessel. In the above-cited case of the Cayuga, the Supreme Court made it a crossing case where one vessel was abaft the beam of the other. This would hardly seem to be correct. The line between an overtaking vessel and a crossing vessel is the range of the side lights; that is, any vessel two points or less abaft the beam is a crossing vessel, any vessel more than two points abaft the beam is an overtaking vessel.18

This is adopted as the test in article 24, and therefore the decision in the Cayuga Case is not law now, if it ever

was.

In a winding river it is frequently difficult to say whether two ships are crossing or not. In such case the question is determined, not by the accidental bearing, but by the general channel course.10

Any regulation made by the inspectors contrary to this rule is invalid.20

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STEAM AND SAIL

131. A steamer must keep out of the way of a sail vessel. In doing so she must allow the sail vessel a wide berth.

Article 20 regulates their relations, and provides that, when a steam vessel and a sail vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel.

252, 15 Sup. Ct. 99, 39 L. Ed. 139; Senator Rice, 223 Fed. 524, 139 C. C. A. 72; Albano, [1907] A. C. 193; Fancy, [1917] P. 13.

18 Aurania (D. C.) 29 Fed. 99.

19 Velocity, L. R. 3 P. C. 44; Pekin, [1897] A. C. 532; L. C. Waldo, 100 Fed. 502, 40 C. C. A. 517.

20 Pawnee (D. C.) 168 Fed. 371; James A. Walsh (D. C.) 194 Fed. 549.

This rule is based upon the greater handiness of steamers, which are independent of wind and tide, and can move backwards, if necessary. It often looks like a hard rule, as the smallest oyster pungy can block the narrow channel available to an ocean steamer. As it is based upon the greater mobility of the steamer, the courts have not always enforced it rigidly when such mobility did not exist. For instance, a tug and tow, though, in the eye of the law, one vessel, and that a steamer, are often less manageable than a sail vessel. The tug cannot back, and, if her tow is large or unwieldy, cannot turn around except slowly. She is less manageable in fact than a sail vessel with a free wind, and. hence the courts have more than once held the sail vessel in exceptional circumstances is required to do something."

21

The question would turn on the degree of her embarrassment, with the presumptions against the tug, for exceptions to the rules must be introduced with great caution.22

A steamer may take her own method of passing a sail vessel. The mere approach of the two vessels does not bring about risk of collision. The steamer may assume that the sail vessel will do her duty, and do nothing to embarrass her. Hence the steamer may shape her course so as to avoid the sail vessel, and then go along at her ordinary speed under the assumption that the sail vessel will not interfere with her. If the steamer's course is such that it does not converge, she can go along without making any change.23

§ 131. 21 Marion W. Page (D. C.) 36 Fed. 329; Minnie C. Taylor (D. C.) 52 Fed. 323; Rose Culkin (D. C.) 52 Fed. 328.

22 Marguerite (D. C.) 87 Fed. 953; Mary A. Bird (D. C.) 102 Fed. 648; Julia A. Trubee (D. C.) 136 Fed. 486; Id., 144 Fed. 1021, 74 C. C. A. 680; Warrior, L. R. 3 A. & E. 553; American, L. R. 6

P. C. 127.

23 Scotia, 14 Wall. 181, 182, 20 L. Ed. 822; Free State, 91 U. S. 200, 23 L. Ed. 299; Illinois, 103 U. S. 298, 26 L. Ed. 562; Donnell v. Boston Towboat Co., 89 Fed. 757, 32 C. C. A. 331.

This rule that vessels may each assume that the other will obey the law is one of the most important in the law of collision. Were it otherwise, and were vessels required to take all sorts of measures to keep out of the way when they are not in each other's way, navigation would be impossible. It is like the land negligence rule that an engineer need not stop his train on seeing some one on the track, but may assume that he will have intelligence enough to get off. Rules more rigid would break up traffic by land or sea.

There is, however, one important qualification which must be borne in mind. It is that a steamer must not approach so near a sailing vessel, and on such a course, as to alarm a man of ordinary skill and prudence. If the man on the sailing vessel makes an improper maneuver, he is not responsible. It is what is called an "error in extremis." It is difficult to lay down any rule defining how close a steamer may run to a sail vessel without infringing this rule, as it depends on the width of the channel and many other special circumstances. It depends largely on the course she is steering. If that course is parallel, and so far off that she is showing only one side light to the schooner, then she is all right; for any mariner of average intelligence knows that in such case the vessels will not strike if each keeps his course, and therefore has no right to lose his head. The leading case on the subject is the LUCILLE.24 In that case a steamer and schooner were approaching on converging courses only half a point apart, so that they would have come within thirty yards of each other, and that in Chesapeake Bay. The court held that this was too close, and condemned the steamer. The report does not tell how the lights showed, but, if their courses were only half a point apart, this would make each see both side lights of the other, and indicate that they were coming end on.25

24 15 Wall. 679, 21 L. Ed. 247.

25 Fannie, 11 Wall. 238, 20 L. Ed. 114.

Another interesting case on this subject is the Chatham.2" There a schooner going down the Elizabeth river saw an ocean steamer approaching, which showed only her red light (indicating a parallel course) until 50 or 75 yards off, when she showed both, indicating a course straight for the schooner. This alarmed the men on the schooner, and they starboarded, and thereupon the vessels struck. The court held that the steamer, having plenty of room, was in fault for running so close, and that the act of the schooner, if wrong, was an error in extremis.27

The test laid down in this case is that the proximity of the steamer, and her course and speed, must be such that a mariner of ordinary firmness and competent knowledge and skill would deem 'it necessary to alter his course to make the vessels pass in safety.

If, therefore, the steamer, though running close, shows by her lights that her course is not converging, she is within the law, and the other vessel must assume that she will stay within the law and navigate accordingly.28

PRIVILEGED VESSELS

132. A vessel having the right of way must keep her course and speed, and the other vessel may assume that she will do so.

By article 21, when by any of these rules one of two vessels is to keep out of the way, the other must keep her course and speed. This renders it obligatory on the vessel which has the right of way to pursue her course at the speed which she had been keeping up previously. She must

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26 52 Fed. 396, 3 C. C. A. 161.

27 See, as further illustrations, E. Luckenbach, 93 Fed. 841, 35 C. C. A. 628; Paoli, 92 Fed. 944, 35 C. C. A. 97; Delmar (D. C.) 125 Fed. 130; Bonnah v. Lakeside S. S. Co., 221 Fed. 40, 136 C. C. A. 566. 28 Gate City (D. C.) 90 Fed. 314. See, also, Merchants' & Miners' Transp. Co. v. Hopkins, 108 Fed. 890, 48 C. C. A. 128.

rely on the other vessel to avoid the collision, and not embarrass her by any maneuver. All she need do is to do nothing. Then the other vessel knows what to expect, and navigates accordingly.

This rule applies to all the other steering and sailing rules. Under it, when the sail vessel running free keeps out of the way, the closehauled vessel keeps her course. Between two crossing steamers, when the one on the left keeps out of the way, the other keeps her course. Between a steamer and a sail vessel, when the steamer keeps out of the way, the sail vessel keeps its course.

The principle is the same in all these different contingencies. It may be illustrated by one or two decisions.

In the BRITANNIA,29 which was a collision in New York harbor, the steamer Beaconsfield had the right of way over the Britannia, under the crossing rule. The Britannia failed to keep out of the way, and thereupon the Beaconsfield stopped and reversed. The Supreme Court held that she should have kept her course, and was in fault for stopping and reversing.30

In the BREAKWATER,81 which also was a crossing case, the privileged vessel did keep on, and the court held that she did right.

In collisions between steam and sail vessels the steamer's defense is usually that the sail vessel changed her course.82 Beating out a tack and then coming about where neces

§ 132. 29 153 U. S. 130, 14 Sup. Ct. 795, 38 L. Ed. 660. See, also, Northfield, 154 U. S. 629, 14 Sup. Ct. 1184, 24 L. Ed. 680; Texas, 198 Fed. 482, 117 C. C. A. 566; Howard v. The City of New York, 211 Fed. 882, 128 C. C. A. 260; Yang-Tsze Ins. Ass'n v. Furness, Withy & Co., 215 Fed. 859, 132 C. C. A. 201.

80 New York, 175 U. S. 187, 20 Sup. Ct. 67. 44 L. Ed. 126; Mexico, 84 Fed. 504, 28 C. C. A. 472.

31 155 U. S. 252, 15 Sup. Ct. 99, 39 L. Ed. 139.

32 Adriatic, 107 U. S. 512, 2 Sup. Ct. 355, 27 L. Ed. 497; Marguerite (D. C.) 87 Fed. 953; Gate City (D. C.) 90 Fed. 314.

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