meet end-on, or nearly end-on, the ship These Rules, it will be observed, have two points undetermined, viz.: what should be done by the vessel which is given way to, in the second and third cases; and what is to be done when two vessels, both having the wind free, meet at different angles. course. Generally, a closehauled ship on either tack The ship to which meets a ship running free, and a ship close- which the other gives hauled on the starboard tack which meets a vessel way must generally closehauled on the opposite tack, may, and indeed keep her ought to, keep her course, so long as the danger of collision lasts, without alteration. The only exceptions that can be allowed to this rule are such as may tend to diminish the danger of collision. Thus, if a ship closehauled on the port tack meets (that is, meets end-on, or nearly end-on) a vessel, as to which it is doubtful whether she is closehauled or running free, the former, it has been decided, (a) Shannon, 2 Hagg. 174; Baron Holberg, 3 Hagg. 215; Alexander Wise, 2 W. Rob. 65; Harriet, 1 W. Rob. 185; Lady Anne, 15 Jurist, 18. (b) James Watt, 2 W. Rob. 279; Rose, 2 W. Rob. 1; Gazelle, 2 W. Rob. 517; London Packet, 2 W. Rob. 216. C ought to port her helm; and, if she does not, will not be held excused from blame, even upon its being proved that the other ship was in fact running free (a). On the other hand, if the closehauled ship is on the starboard tack, it would seem that she is always entitled, and perhaps always bound, to hold on her course without alteration (6). If, indeed, she is not sailing quite close to the wind, but can go a point or two nearer and still remain under command, then, if she is meeting a ship endon, her helm ought to be slightly ported, so as to get as near the wind as she properly can; (a) Ann and Mary, 2 W. Rob. 189; Traveller, 2 W. Rob. 197. (b) Thus, where a ship closehauled on the starboard-tack bore up and wore, she was held to be in fault. "She should," said Sir John Nicholl, "according to the well-known rule, have held on her course" (Jupiter, 3 Hagg. 321). The question has frequently been considered in the Admiralty Court, whether a starboard-tack vessel is justified in persistently holding on her course after it is evident that the doing so must lead to a collision. In favour of her doing so are urged the advantages of adhering to fixed rules, and the danger of allowing a departure from them, particularly with regard to ships at sea, on any pretext whatever; while against this view stress is laid on the absurdity of contending that a vessel may be justified in wilfully running into another when she can avoid it. The principle to be extracted from the decisions on this head appears to be, that the starboard-tack vessel which continues in her course is so far primâ facie in the right, that the proof lies with the other party to shew that she ought to have deviated from it; and this can only be by shewing beyond doubt that she would have been safe in so deviating, whatever course the other vessel might have taken. It is rarely, if ever, that this can be proved, at any rate when the starboard-tack vessel is required to starboard her helm, or to throw herself in stays (see Commerce, 3 W. Rob. 287; Seringapatam, cited 11 Jurist, 998; Test, 11 Jurist, 998; Dumfries, Swab. 63, 126; Mobile, Swab. 73, 127; Hector, 8 Mitch. 815; Castilian, 9 Mitch. 1490). because, as in this case the other ship, whether free or closehauled, is bound to port likewise, such a measure on the part of the starboard tack ship must always diminish, and cannot augment, the risk of a collision (a). If, however, the other ship is approaching, not end-on but at an angle, then, under some circumstances, it would be a fault for the starboard-tack vessel to port; as this might disturb the manoeuvres of the other ship, whose duty it is to go astern of her (b). vessels running free cross at an angle. When two vessels under sail, each having the When two wind free, are crossing each other's track, not meeting end-on, it does not appear that any general rule, founded on the common law of the sea, can be gathered from the Admiralty Court decisions. There is, however, a statutory rule; and it may fairly be presumed that this rule is intended as simply declaratory of existing nautical customs. This rule is found in Article 10 of the Regulations (a) East Lothian, 1 Lush. 247. In the case of the Lady Anne, two closehauled vessels meeting were very near before they saw each other: the port-tack vessel immediately ported her helm; the starboard-tack vessel did nothing, although she might, by slightly porting, have brought herself somewhat nearer to the wind, and so have avoided the collision; and in this case the starboard-tack vessel was pronounced solely in fault (7 Notes of Cases, 364). This must be considered a somewhat exceptional case; not, indeed, that it contradicts what is stated in the text; but the great body of decisions established that the starboard-tack vessel is almost always in the right, by the common sea-law, if she holds on her course. (b) Cleadon, 1 Lush. 162. Where a foreign vessel, closehauled on the starboard-tack, approaches another vessel at night, she is bound to keep her course; porting may, under some circumstances, be an injudicious manœuvre (Stevens v. Gourley, 14 Moore, P. C. C. 92.) Extent of statutory issued in 1863 by the Board of Trade, in pursuance of the Merchant Shipping Act Amendment Act, 1862; and is as follows:-" When two sailing ships are crossing so as to involve risk of collision, then, if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side; but if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward." SECT. 2.-Statutory Regulations. In the next place are to be considered those modifications of the common sea law, as affecting the courses to be steered by sailing ships which meet where there is open sea-way (for the subject of river navigation or navigation in narrow channels is to be treated separately), which have been introduced by Act of Parliament. How far the jurisdiction of Parliament extends, jurisdiction. particularly as regards foreign ships meeting on the high seas, is a question which will be made the subject of a separate chapter. It is enough here to say that the statutory Regulations are binding as between British ships everywhere, and as regards foreign ships whenever they encounter each other in British waters, and, in certain cases, even upon the high seas (a). (a) It is to be borne in mind throughout that the Merchant It is probable that the intention of those who framed the statutory Regulations which are now to be considered, was, not to introduce changes in the common law of the sea, but simply to furnish a clear concise declaration of that law. It is always difficult, however, thus to codify a branch of customary law, particularly when that law is in a state of imperfect development, without making some, perhaps unintentional, changes in it; the words used being found to provide for cases not originally contemplated. It will be found that something of this kind has taken place with these regulations. first Merchant In the Merchant Shipping Act of 1853 (17 & 18 Rules introVict. c. 104, s. 296), which was the first attempt to duced by the codify this branch of the law, it was enacted that "whenever any ship, proceeding in pro one direction, meets another ship Shipping Act. Shipping Acts, and the regulations founded on them, do not apply to Queen's ships (The Topaze, 12 Weekly Reporter, 923). |