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cal that such departure was necessary under the circumstances; that it did not contribute to the collision, and was reasonably well calculated to avoid the danger.1 It must be shown that the occasion for a departure was an imperative necessity. A mere supposition that to follow the rule would be dangerous, or a mere apprehension of danger, because the other vessel takes no steps to get out of the way, the danger not being imminent, is not sufficient. The presumption of law is that the statutory method prescribed for the avoidance of collisions is the best method, and it affords no justification to show that the unlawful way was the best way. Where a known rule of navigation is violated, and that violation may have contributed to the disaster, the burden of proof is on the offending vessel to prove that such fault did not contribute to the result.3

The question as to which of two vessels is in fault for coming into such close proximity with the other as to create risk of collision is often of more importance in determining liability than is the question of prudence or lack of judgment in maneuvers hastily planned and poorly executed; or a departure from the rule after peril has become imminent. When at a distance and before there is any excitement attending the movements of a ship, she may be held to a stricter observance of the rules than under circumstances of close proximity naturally calculated to create alarm and confusion; and she will be held to a stricter accountability, having had time to regulate her conduct, than will a ship suddenly brought into a position of great peril. Where a departure from the rules is made at such a distance from the point of collision that sufficient time is had by both vessels to adapt their courses to the altered situation, and where the departure does not directly contribute to the collision, it is

1 The Jay Gould, 19 Fed. R. 765; Fed. R. 397; The Leland, 19 Fed. R. The Clement, 2 Curt. 363. 771; Clare v. Providence S. S. Co.,

2 The Illinois, 103 U. S. 298; The 20 Fed. R. 535.

General Grant, 6 Ben. 465.

3 Daugherty v. The Franconia, 3

4 The Favorite, 1 Biss. 525.

the remote and not the proximate cause, and carries no liability. The navigation rules are obligatory upon vessels from the time necessity for precaution begins, and continue so long as the means, necessity and opportunity to avoid danger remain. Their strict observance by a vessel having the right of way is modified by the presence of immediate and impending peril, and they are equally inapplicable to vessels when so far distant from each other that measures of precaution are not required to avoid collision. It is no justification for a departure from the rules that the other vessel is also guilty of a like omission of duty. The fact that one vessel is disregarding a known duty does not authorize the other to proceed with less caution. Instead of affording any relaxation of vigilance on the part of the vessel complying with the law, it imposes upon her the duty of special care; every vessel is bound to use all reasonable vigilance and skill, no matter what the prior fault of the other. It may be stated as a general rule that a vessel undertaking to reverse the statutory rules and to navigate contrary to their requirements assumes the risk attending, and of any misunderstanding that may arise as to the nature or sufficiency of the signals of either."

Where it is sought by a vessel departing from the rules to

1 The Maryland, 19 Fed. R. 551. Where two vessels were navigating, in violation of local statutes, with plenty of time and space to avoid each other, the violation of the statute was held immaterial, as not a fault proximately contributing to the result. The E. A. Packer, 20 Fed. R. 327.

2 New York and Liverpool Mail S. S. Co. v. Rumball, 21 How. 372. 3 The Sunny Side, 1 Otto, 208; The Warren, 18 Fed. R. 559; The Louis Dole, 5 Biss. 172; The New York, 53 Fed. R. 553; Swift v. Brownell, 1 Holmes, 467; The Ontario, 2 Low.

40; Chamberlain v. Ward, 21 How. 548.

4 The Frostberg, 25 Fed. R. 451; The Titan, 49 Fed. R. 479; The Johnson, 9 Wall. 146; The Clarion, 27 Fed. R. 128.

In the case of The Gratitude v. The Eutaw, 14 Fed. R. 479, the court held that, where a vessel departs from the ordinary rules of navigation to escape liability from a collision, she must clearly show that the other disregarded her signals and imperiled her own safety by faulty navigation.

charge the other with the neglect of some duty arising from a consent on her part to such departure, the burden of proof is upon the former to show that the signals requesting such consent were heard and understood by the latter, and that she accepted the course suggested instead of the course prescribed by law. A mere naked consent on the part of a vessel that another may depart from the rules, there being sufficient opportunity to execute the maneuver, of itself affords no guaranty of success on the part of the signaling vessel that her maneuver will prove successful. Such assent means nothing more than that the assenting vessel understands the maneuver and will do nothing to thwart its execution; and such consent does not release the vessel violating the rules from the consequences of such departure, where it produces or contributes to the collision. Where, however, consent is given for another to depart from the rules, and at the time of such consent risk of collision is apparent, the irregular maneuver being made, both are liable for the consequences resulting; otherwise the assenting vessel is under no obligations to take measures to facilitate the execution of the movement until risk of collision is apparent, when she is bound to do all she can to avoid collision.

Departure from the rules cannot be justified on the ground that custom gives consent. Where custom is opposed to statutory provision the former must give way; and a very

1 The Sammy, 35 Fed. R. 327; The Greenpoint, 31 Fed. R. 231; The Deutz, 29 Fed. R. 525; The Nereus, 23 Fed. R. 448.

Where an erroneous maneuver is proposed by one vessel and assented to by another having the right of way, whereby a prescribed rule of navigation is violated in a dangerous place and collision follows, both vessels are in fault. The Plymouth Rock, 26 Fed. R. 40; The City of Hartford, 17 Int. Rev. Rec. 125; 11 Blatch, 72.

2 The Nereus, 23 Fed. R. 448.

The Pequot, 30 Fed. R. 839; The A. Demorest, 25 Fed. R. 921; Wheeler v. The Eastern State, 2 Curtis, 141; The L. Lamb, 20 Fed. R. 319; The Hand of Providence, Swa. 107.

In the case of The James Bowen, 52 Fed. R. 510, the court held that the established custom of the port of Philadelphia, that in navigating the Delaware river between League island and Walnut street wharf, that vessels going up shall keep in

clear case must be made out before a vessel can be held in fault for adhering to the rules instead of departing from them.1

shore and those passing down shall keep in the channel, supersedes the regulations prescribed by congress in the rules of 1885.

1 The Clement, 2 Curtis, 363; Baker v. City of New York, 1 Cliff. 75; The Sunny Side, 1 Brown, Adm. 227; McCoy v. Currituck, 2 Hughes, 91; The Golden Grove, 13 Fed. R. 688; The Britannia, 34 Fed. R. 553; The Emma Kate Ross, 41 Fed. R. 828.

Where a steamer invites a departure from the ordinary rules of navigation by giving signals therefor, it was held that she takes the risk of her own signals being heard and understood, and cannot invoke any rule of the supervising inspectors to justify her departure, in the absence of proof that her signals were heard and

were understood by the other vessel. The John King, 49 Fed. R. 469.

Stopping a vessel in accordance with the rules of navigation is not a fault, although it contributes to the collision. The George E. Starr, 47 Fed. R. 749.

Where a steamer approached another end on, or nearly so, it was held to take all risk of her ability to pass to starboard, by signaling and obtaining the other's consent to a departure from the rule requiring them to pass port to port, and was solely at fault for a collision that would not have happened had not the latter taken a sudden sheer to starboard through the force of the tide. The Titan, 44 Fed. R. 510.

CHAPTER VII.

COLLISIONS BETWEEN STEAM AND SAIL-VESSELS.

Sec. 86. Duty of steamer.- The international rules provide that, "when a steam-vessel and a sailing-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.”1

The burden imposed by statute on a steam-vessel, requiring it to keep out of the way, is because it is under more immediate control, and is less subject to adverse influences of wind and tide than are vessels dependent upon the wind for motive power. Being self-reliant, with the ability to regulate its movements at will despite the elements, its greater independence and unhampered power of movement impose upon it greater care and exertion than is required of a sailing-vessel, whose movements are entirely dependent upon external and uncertain forces over which it has no control.2 A steamer has been likened to a sail-vessel having the wind free, and for that reason bound to avoid one sailing closehauled. While there may be some analogy between them, the burdens imposed by law upon a modern steamer are far more onerous than are those placed on sailing-vessels with the wind free. Its ability to stop, reverse and regulate its movements at will impose a duty proportioned to the su

126 U. S. Stat. at L. 327, art. 20; 23 U. S. Stat. at L. 441, art. 17; rule 19 for the navigation of the Great Lakes.

2 Baker v. The City of New York, 1 Cliff. 75; The Adriatic, 107 U. S. 512; St. Johns v. Payne, 10 How. 557; Ward v. The Fashion, 6 McLean, 152; Dickinson v. Gore, Newb. 45; The New Jersey, Olc. 415; The

Washington Irving, Abb. Adm. 336; The Johnson, 9 Wall. 146; The Lizzie Henderson, 20 Fed. R. 524; The Falcon, 19 Wall. 75; The Narragansett, Olc. 246; The R. B. Forbes, 1 Spra. 328; The Illinois, 103 U. S. 298.

3 The New Jersey, Olc. Adm. 415; The Neptune, Olc. Adm. 483; The Leopard, 2 Ware, 197.

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