rules made under a local Act for the express purpose of
regulating its navigation. Although the Thames liules
(of 1872) were identical, as regards crossing ships, with
the general Regulations, it seems to have been doubted
whether the decision of the Privy Council in Tlie Velocity,
and other cases following it, that two ships rounding a
point are not within the "crossing" rule, would be followed
in a similar case arising under the Thames Rules {q) . The
particular point decided in The Velociti/ does not arise upon
the existing Thames Rules (of 1880), which contain no
rule corresponding to the " crossing " rule there discussed.
But the principle involved in that and the other decisions
above referred to is of wide application, and has an im-
portant bearing upon the existing Thames Rules, as well
as other rules for the navigation of winding rivers. That
principle is, that the questions. Whether there is risk of
collision ? and, What rule is applicable where there is such
risk ? depend rather upon the relative positions of the two
ships in the river as regards mid-channel, and upon the
customary track of ships in the river, than upon the head-
ing of the two ships at a particular moment.
The following cases illustrate the view taken by the American
Supreme Court of the United States as to the application tie applica-
of the Regulations of 1868 in a winding river. *^"^ "^Z *^°
^ ,^ , . . Regulations
A sailing ship descending a river on a southerly course in a -winding
sighted a steamship ascending it. In accordance with the ^'^^^'
{p) The Talahot, 89 L. T. 239. (?) The Occam, 3 P. D. GO.
470 THE REGULATIONS.
Art. 21. practice of the river, the sailing ship was on the west, and
the steamship on the east, side of the channeL At a point
between the two vessels the river took a bend in a south-
easterly direction. On reaching this point the sailing
ship's helm was put to starboard in order to round the
bend. Instead of porting, so as to resume her course in
the usual track along the west bank at a point where the
channel turned again to the west and ran in its original
southerly direction, the sailing ship continued the course
she was on after her helm had been put to starboard.
Crossing the channel to the east shore she ran into the
steamship, which had continued her original course along
that shore. It was held that the sailing ship was in fault
for deviating from the customary track along the west
shore ; that her duty under the rule (identical with Art. 18
of the Eegulations of 1863) requiring her to keep her
course, was to keep her course along the west shore,
deviating from a straight course only so far as the winding
of the river required (r). The judgment of the Supreme
Court in this case is to the effect that when a point of
land or other obstruction in the navigation interferes with
the literal application of the Eegulations, they are, never-
theless, to be complied with so far as possible ; that a vessel
required by the law to keep her course, if she is compelled
by an obstruction or bend in the river to deviate from it,
must resume her original course as soon as possible. And
the Court expressly held, that where two vessels will pass
clear if each adheres to the customary track, the Eegula-
tions have no application ; and that a vessel deviating
from the customary track in supj^osed obedience to the
Eegulations is in fault.
In The Free State (s), a sailing ship was crossing a river
diagonally, for a temporary purpose, when she sighted a
steamship approaching with risk of collision ; the Supreme
(r) The John L. Hasbronclc,Z Otto, 405. (.s) 1 Otto, 200.
RULE AS TO KEEPING HER C0T:RSE, 471
Court lield that the duty of tho sailing ship was to keep on Art. 21.
her course across tho river. Tho sailing ship ascending a ~
river on a northerly course and being overtaken by a
steamship, starboarded until her head was N.W. by N., in
order to give the steamship more room to pass on her star-
board hand. While crossing the river on the N.W. by N.
course she sighted another steamship descending the river
and preparing to pass the ascending steamship port side to
port side. After being passed by the ascending steamship
the sailing vessel ported and attempted to follow in her
wake, so as to pass the descending steamship port side to
port side. In doing so she came into collision with the
latter, and it was held by the Supreme Court that she was
in fault for not keeping her N.W. by N. course.
When two steamships proceeding in the same direction
were rounding a point or bend in a river nearly abreast, it
was held that it was the duty of each to keep in her own
water, and not attempt to cross the course of the other.
The outside boat was held in fault for a collision that
occurred while attempting to get in to the shore across
the bows of the other {f) .
In The Milwaukee {u), it was held that the question
whether two ships were meeting " end on " in a river is to
be determined by their general course in the river, and not
by their compass course at a particular moment while they
are pursuing the windings of the channel.
Article 22 (x).
Where by the above rules one of two shij)s is to keep out of Art. 22.
the wai/, the other shall keep her course. Ship not
This Article is identical with Art. 22 of the Regulations kecp^ut of
of 1880. It answers to Art. 18 of the Regulations of 1863. ^^o way must
kooi^ her
It supplements, and must be read with, Arts. 14, 16, 17, course.
(i) The Ocraiiun, 12 Blatclif. 430. (.r) Corrcspondiug- to Art. 21 of
{ii} Brown, Adm. 313. the Washinijtou llegulations.
472 THE REGULATIONS.
Art. 22. and 20. The concluding words of Ai't. 18 (of 1863) were
superfluous, and are omitted in the present Art. 22. The
scoj)e and application of the two Articles appear to be
identical.
Art. 22 must Since a vessel, A., required by the Regulations to keep
observed."*" out of the Way of another, B., may go ahead, or astern, or
on either side of B., it is B.'s duty to do nothing that may
embarrass A. or interfere with her right to keep clear of B.
in any way she thinks fit. The rule, therefore, requiring
B. to keep her course must be observed strictly. So long
as B. can do so without immediate danger, and there is a
possibility of A. clearing her, she must stand on. In a
recent case Sir James Hannen refused to find a sailing ship
to blame for taking no step until the last moment to avoid
collision with a steamer which she saw to be taking no
measures to keep out of the way (//) . With reference to
the same rule under a previous Act, Dr. Lushington
said : — " I wholly deny that danger would be averted, or
that infinitely greater danger would not occur, if a vessel
close-hauled on the larboard tack, on descrying a steamer,
were to take upon herself to deviate from her course for
the piu'pose of getting out of the way ; because I am of
opinion that by so doing it would lead to the chance of
infinitely more collisions than at present" (s). The Su-
preme Court of the United States is equally strict in its
interpretation of the rule, and for the same reasons. " The
negligence of one (ship) is liable to baffle the vigilance of
the other ; and if one of the vessels, under such circum-
stances, follows the rule, and the other omits to do so, or
violates it, a collision is almost certain to follow " (a).
It has been held by the Privy Council that " if a ship
bound to keep her course undertakes to justify her depar-
(y) The Hlghgate, 62 L. T. N. S. .582 ; The Test, 5 Not. of Cas. 276.
841 ; supra, p. 433. («) Neiv York and Liverpool U. S.
(z) The Vivid, 7 Not. of Cas. 127; Mail Co. v. llumball, 21 How. 372,
The Jmmaganda Sara Clasina, ibid. 384.
KEEP HER COUKSE. 473
ture from tliut rule, she takes upon lierself the obligation Art. 22.
of showing both that her departure was, at the time it took
place, necessary in order to avoid immediate danger, and
also that the course adopted by her was reasonably calcu-
lated to avoid that danger "(/>). There are decisions of
the Supreme Court of the United States to the same
effect {(â– ) .
This rule is perliaps the most difficult of all the Eegu-
lations for seamen to adhere to. Tlie stringency Avith
which it is applied by the Courts makes it necessary for
an officer to take his ship into close proximity to another,
where it may appear that risk of collision would be at once
determined by directing her course away from the other
ship.
In the case of a sailing ship, A., close-hauled on the
port tack, approaching another, B., having the wind free
on the starboard tack within the " crossing " rule (Art. 14),
unless there are exceptional circumstances, and it is certain
that B. will not keep out of tlie way, A. has no choice but
to stand on (d).
It has been held that in a winding river the direction to Meanin<r of
" keep her course " does not mean that the ship is to con- coujse."'^'^
tinue going ahead in the direction in which her head
happens for the moment to be pointing, without regard to
other circumstances. It means that she is to continue the
course she would pursue if the other vessel were not in
sight (c). Thus, a vessel rounding a point in a river, and
approaching another under circumstances which require
{b) The Agra v. T/ie Elizahcth and Tlie WlUiam Frederiek, 4 App.
Jenkins, L. R.. 1 P. C. 601 ; see also Cas. 669; infra, p. 489; The Illinois,
The Great Conquest v. The David 13 Otto, 298; The Highgate, 62
Cannon, Holt, 235; The Uncas v. L. T. N. S. 841. See also supra,
The Meeander, Holt, 243 ; and sec p. 413, for a " hard case."
the observations of Dr. Lushington {e) The Velocity, L. R. 3 P. C.
in The 'Test, iihi supra. 44. In The Banshee, 6 Asp. M. C.
(c) T/i£ <S'eo<irt, 14 Wall. 170 ; TIic 221, different opinions upon this
Fotomac, 8 Wall. 590. point were expressed by members
{d) See The By f aged Christensen, of the Court of Appeal.
474
THE REGULATIONS.
Art. 22.
Whether an
alteratiou of
speed is an
infringement
of Art. 22.
How a ship
hove-to is to
" keep her
course ; ' '
her to keep her course under Art. 22, must continue her
course round the pomt in the usual track (/).
Whether a ship required to keep her course is at liberty
to alter her rate of speed, while risk of collision exists,
seems doubtful. If by doing so she increases the risk, or
embarrasses the other ship, she would probably be held in
fault. In The Beryl it seems to have been held that an
alteration of the rate of speed is not an infringement of
Art. 22. The vessel required to keep her course was held
free from blame, though she eased her engines whilst there
was risk of collision, and though there would have been
no collision but for the easing of the engines. The facts
were as follows : — Steamships A. and B. were crossing at
right angles, A. having B. on her starboard hand. When
about a quarter or half-a-mile distant from A., B. whistled,
and, finding that A. did not alter his course, eased his
engines. Then A. eased, and, when close to B., stopped
and reversed his engines, the collision being then inevit-
able. A. was held solely in fault {g). In the Court of
Appeal (where B. was held also in fault for not stopping
and reversing), Brett, M. R., said that Art. 22 relates
entirely to the heading, not to the speed of the ship.
" Keeping her course means that she is to keep on the
same direction as before ; it has nothing to do with the
question of speed " (//). In The Leverincjton {i), the steam-
ship required to keep her course did so and " went on
faster." She was held to have complied with Art. 22.
Where the vessel required to keep her course is hove-to,
it appears to be the duty of those on board to fill on her
(/) Tlie VelocHij, supra; The Esk
and The Niord, L. R. 3 P. C. 436 ;
The Cologne and The Ranger, L. R.
4 P. C. 519. See supra, p. 427.
See also The John Taylor, infra,
p. 479.
[g) The Beryl, 9 P. D. 4.
(A) Tcr Brett, M.R., The Beryl,
9 P. D. 137, 140. This dictum was
doubted by Butt, J., in The Mar-
mion, Ad. Div. 9th Dec. 1887. The
Washington Regulations, Art. 21,
require the ship to ' ' keep her
course and speedy
{i) 11 P. D. 117.
KEEP TfF.K fOTIKSK. 475
and get lior under command without altering her course Art. 22.
more than is necessary (/>•).
A vessel hove-to with her helm lashed to leeward, forg-
ine: ahead as she comes to and falls off, does not fulfil the
requirements of Art. 22 (/).
A vessel close-haided does not by lufRng a little, and so and a ship
that she does not lose her headway, break the rule requir- ^ "' ^
ing her to keep her com-se {/n) ; nor, it is submitted, does
she infringe Art. 22, by breaking off if the wind heads
hcr(>/). But a vessel which luffed to the extent of
two and a-half points, was held to liave infringed the
regulation (o) . And it has been held that a vessel does
not, by altering her course so as to give an overtaking ship
more room to pass, infringe the rule (p). If a close-hauled
sliip departs from the ride requiring her to keep her course,
as a general rule she should luff rather than bear up, as
she thereby lessens her way, and, if a collision takes place,
its effect is likely to be less disastrous (q).
The rule that a ship is to keep her course does not mean A ship must
that she is to do so obstinately when she sees that, under obstinately.^
the particular circumstances of the case, she can, by de-
parting from it, avoid a collision (r).
The following cases illustrate the application of Art. 22 : Casps illus-
A barque in Margate Koads in a strong wdnd was wear- aniiilation of
ing preparatory to coming to an anchor. A steamship was ^^- - •
held solely in fault for a collision with her, although the
(/.) The General Lee, 3 Mar. Law oU.
Cas. 0. S. 204. (o) The Earl JFem>/ss, 6 Asp. 364;
(0 The Transit, 3 Boned. 192 ; on app. 61 L. T. N. S. 289.
and see fui'ther, p. 415, above, as {p) 'The Franconia, 2 P. D. 11 ;
to the duty of a ship hove-to. but see The Corsica, 9 Wall. 630 ;
(>«) The Marmion, 1 Asp. Mar. i»fra, p. 479.
Law Cas. 412 ; The Aimo nwA The {q) The Agra and The Elizabeth
Amelia, 2 Asp. Mar. Law Cas. 96 ; Jenkins, L. R. 1 P. C. oOl ; The
The Great Eastern, 3 Moo. P. C. C. Great Eastern, itbi supra.
N. S. 31 ; The Singapore, L. R. 1 (»•) The Lake St. Clair v. The
P. C. 378. Underwriter, 3 Asp. Mar. Law Cas.
(«) She would be in fault if she 361 ; The Rosalie, b P. D. 245; The
broke off more than necessary ; as Sitnnyside, 1 Otto, 208. See, how-
in The Elizabeth Jones, 5 Davis, ever, infra, Art. 23,
476
THE REGULATIONS.
Art. 22. steamsliip alleged tliat slie was baffled hy tlie rapid change
in the course and lights of the barque (-s).
A sailing ship, with the wind aft, meeting a steamship
nearly end on, was held in fault for porting {t). But a
slight alteration in the helm of a sailing ship, when an
approaching steamship was two miles distant, was held not
to be an infringement of the rule requiring her to keep her
course (m). And a steamship, with another a quarter of a
mile astern on her port quarter and overtaking her, was
held not to be in fault for jiorting half a point (x).
A sailing ship must not go about close ahead of a steam-
ship, so as to embarrass the latter and make it difficult for
her to keep out of her way (//) . But a steamship, attempt-
ing to pass a sailing ship turning to windward in a narrow
channel, must be prepared for the sailing ship going about,
and the latter is under no obligation to give notice of her
intention to go about (;:) .
It seems that where risk of collision exists, a sailing ship
is not entitled to go about until compelled to. Then
Art. 23 applies, and excuses her for not keej)ing her course.
A three-masted schooner was standing in towards the
Groodwin Sands on the port tack, heading W. by S.
Approaching her was a steamship on a S.S.W. course,
having the schooner about one point on her starboard bow,
and under such circumstances that there was risk of coUi-
The schooner went about, and there was a collision.
sion.
The question was, whether the schooner had infringed
Art. 22. The opinion of the Trinity Masters was asked
by Butt, J., in these terms : — Would there have been any
{.i) The 3lonsoon and The Ncplune,
2 Mar. Law Cas. O. S. 289 : and
see The Falkland and 'Tlie Navigator,
Br. & Lush. 204.
[t) The Jio)^f/ai)ivillr and The James
C. Stevenson, L. R. o P. C. ;31G.
(m) The Norma, 3 Asp. Mar. Law
Cas. 272 ; cf . The Batishee, 6 Asp.
Mar. Law Cas. 221.
[x) 'The Franconia, 2 P. D. 8.
(//) The Newhurgh v. The Oscar,
Holt, 231 ; The Saucy Lass v. The
Bolder aa, Holt, 205.
{z) The Palatine, 1 Asp. Mar.
Law Cas. 468 ; it is not quite clear
in tliis case whether it was neces-
sary for the sailing ship to go about
when she did.
KEEP HEK COURSE.
477
risk to tho schooner, having regard to the tide (running to ^^^- 22-
the westward) and all the surrounding circumstances, if
she had stood further in towards the sands ? The answer
to this question hoing in the afhrniativc;, it was held that
Ai't. 23 applied, and that the schooner had not infringed
the Regulations in going about {a).
In a Canadian case a sailing ship in tow with sail set
was struck on the quarter by another vessel in tow of the
same tug, and was forced against an overtaking steam-
ship (b). She was held in fault for not keeping her com-se ;
nccl qu. as to the reason of the decision.
A smack hove-to on the port tack, with her helm lashed,
was heading so as to cross the course of a tkree-masted
schooner close-hauled on the starboard tack. Neither
vessel did anything until the collision was inevitable.
The schooner, as well as the smack, was held in fault,
because she did not bear up in time (c).
In America there is a stringent rule, which has been American
fi-equently insisted upon by the Coui-ts, requiring a sailing
ship working to windward in company with other ships,
w^hose duty it is to keep out of her way, to "beat out
her tack. " If she goes about in a narrow channel before
the shoaling of the water or other dangers of navigation
require it, and comes into collision with another ship which
would have cleared her if she had stood on, she is held to
be in fault for the collision {d) . In a case of colKsion be-
tween a sailing ship turning to windward and a steamship,
the Circuit Court said : " What the law requii-es for a sail-
ing vessel in a narrow channel is, to beat out her tack, and,
having beat it out, to come about with aU proper despatch
upon the other, leaving to the steam vessel the responsi-
bility of being in a position to enable her to do so without
danger" {c).
(a) The Orwell, Ad. Div. 17th (c) The Rosalie, b^.J). 2^h.
Dec. 1887. [d) The Empire State, 1 Bened.
(b) The Farewell, 8 Quebec L. R. 57.
87. (f) The Empire State, uli supra.
cases.
478 THE REGULATIONS.
Art. 22. In a case wliere it was proved that there was, at the
American time of the collision, a flat calm, it was held by the Supreme
tradn^^ "' Court that the sailing ship, whose duty it was to keep her
Ai-t. 22. course, could not be in fault (/).
The rule requiring a vessel to keep her course is strictly
enforced by the Courts in the United States. A sailing
ship approaching a steamshi2D admitted that so soon as
there was risk of collision she kept away two or three
points. She was held to be in fault. The Court said {g) :
" A vessel whose duty it is to keep her course has no right
to change it as soon as she apprehends a collision. In this
case the duty of the tug to keep out of the way of the
lighter arose only when the two vessels were proceeding
in such dii-ections as to involve risk of collision ; and it
was under the same circumstances that the duty arose on
the part of the lighter to keep her course. Therefore,
under the statute requiring the lighter to keep her course,
her apprehension of a collision could not justify her in
changing her course. Moreover, it is the actual risk or
danger of collision that determines the duty of both
vessels, and not the apprehension merely (h) . The rule was
made and is administered for the very purpose of prevent-
ing the vessel charged with the duty of avoiding the other
from being embarrassed by a change of course on the part
of the other into danger, on the apprehension that such
duty of avoidance will not be fulfilled " {i).
A schooner, seeing the mast-head light of a steamship,
and mistaking it for a light ashore, hove-to to get a cast of
the lead, thereby presenting her red light to the steamship.
The steamship ported. The schooner, on discovering her
mistake, got under way, and crossed the course of the
(/) The Commerce, 16 Wall. 33. course.
Iff) The General U. S. Grant, 6 (A) But see as to this, supra,
Bened. 465, 467 ; and see The p. 348.
Adriatic, 17 Otto, 512, as to the (t) See also The Stephen Morgan,
duty of a sailing ship to keep her 4 Otto, 599.
KEEP HER COUllSE.
479
stearasliip, sliowing her green light. It was held that the ^ ^^- 22-
schooner was solely in fault for not keeping her course {k) .
Where a ferry boat crossing a river was under a port
helm at the moment when she sighted another steamsliip
coming up the river, it was held that her duty, under the
rule requiring her to keep her coui'se, was to continue in
her usual track (/).
The danger of departing from Art. 22 is illustrated hy
an American case, where a vessel, A., starboarded in order
to assist another, B., whose duty it was to keep out of her
way, in an attempt to cross her bows. Finding that she
could not cross A.'s bows, B., at the last moment, stopped.
In consequence of B.'s stopping and A.'s starboarding, a
collision occurred. A. was held to be solely in fault (m).
A steamship, just before reaching a point in New York
liarbour where the channel is narrow and the navigation
difficult, sighted a schooner's red light. There wore thi'eo
channels open for the schooner, and only one for the steam-
ship. The schooner selected the steamship channel, and a
collision took place. The schooner was held in fault, bo-
cause, although she kept her course, in the sense tliat she
had from the first intended to make use of the steamship
channel, she embarrassed the steamship by taking that
course when she might have avoided any risk by taking
one of the other channels {n) .
It lias been decided by the Supreme Court that a
sailing ship is not free from blame if, seeing the lights of
a steamship ahead and not keeping out of the way, she
pertinaciously keeps on lier com^se and runs down the
steamship (o) .
(A-) The Viryo, 7 Bened. 495. (h) The City of Saitford, 7 Bened.
(I) The John Taylor, 6 Bcned. 350.
227. ip) The Sunnysidc, 1 Otto, 208.
(w) The Corsica, 9 Wall. G30.
480 THE REGULATIONS.
Article 23 (oo).
Art. 23. In ohei/ing and condruing these rules due regard shall be
Proviso ^'^^'^ ^0 ^^^^ dangers of navigation, and to any special circum-
saving special stances whick mat! render a departure from the above rules
cases.
necessary in order to avoid i)nmedi(de danger.
Art. 23 corresponds, and, with the exception of super-
fluous words, is identical, with Art. 19 of the Regulations
of 1863, and with Art. 23 of the Regulations of 1880.
Terms of The concluding words of this article should be compared
Art. 23 com- ^^..^|^ ^^^^^ ^f 3g ^ 3^ y-^^^ ^ ^5 g_ ij ^|^-g|^ ^.g^-ggg ^
pared with _ _ ' ^
those of 36 & sumption of fault in case of infringement of the Regu-
s.n. ' ' ' lations — "unless it is shown to the satisfaction of the
Court that the circumstances of the case made departure
from the Regulations necessary " (7;) . It is clear, from
Art. 23, that the steering and sailing rules — Arts. 14, 15,
16, 17, 18, 20, and 22 — do not apply where they cannot be
obeyed without " immediate danger. " The " circum-
stances" mentioned in 36 & 37 Yict. c. 85, s. 17, would
therefore seem to be such as render a departure from the
Regulations necessary to avoid immediate danger. It may
be objected that in this view the words of s. 17, above
quoted, "unless it is shown, &c.," have no oj)eration and
are superfluous ; but it is difficult to give them any other
meaning.
The construction, here suggested, of Art. 23 and sect. 17,
seems to have been that adopted by the House' of Lords in
the cases of TheKliedive [q] and TJie Benares {r). In the latter
case the meaning and operation of Art. 23 was more con-
sidered, and a larger and more decided operation was given
to it by the Court of Appeal, than in The Khedive by the