Herbert R. (Herbert Ransom) Spencer.

A treatise on the law of marine collisions online

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In the case of The Reid Towing
& Wrecking Ca v. The Athabasca,
45 Fed. R 651, two tugs had in
charge a raft of logs about one
thousand two hundred feet in
length, conducting the same down
the Sault Ste. Marie river. Ap-

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§ 138.] TUGS AND TOWS. 283

under control of its owners, and fails through their fault
to follow the lead of the tug, there is no reason why, like a
vessel under such circumstances, it does not become liable
for its misconduct.

Sec. 138. Striying for precedence. — In the sharp com-
petition for business among towing vessels there is constant
temptation to omit those prudential regulations necessary
in the navigation of such dangerous instrumentalities. While
the policy of the law is adverse to racing, and holds those
so engaged as wrong-doers, it recognizes the spirit of legiti-
mate enterprise in the activity of vessels in securing em-
ployment, and its policy is to encourage promptitude of
tiervice so long as it is conducted in such a manner as not to
engender recklessness, and is conducted in compliance with
those safeguards prescribed by the general regulations.

The established custom for the approach of a tug to a
vessel requiring assistance is for the tug following the wake
of the vessel to come up on the starboard side of the tow,
and to continue alongside. A tug coming up at the same
time from any other direction should round to and come uj)
on the opposite side, so that the direction of the tug shall be
the same as the direction of the tow.^

Where a tug is entitled to its position by the general rules
of navigation the other must keep out of its way.*

proaching a narrow portion of the raft end on. Held, that it was a

river, where the raft would occupy hazardous undertaking to take a

nearly all the channel, one of the raft of the size of the one in ques-

tuga proceeded down stream to tion down the Sault Ste. Marie

notify vessels below of the ap- river, and knowing the attending

proach of the raft It failed to perils, the owners undertook the

notify the Athabasca, a large pas- feat with all its attending perils,

senger steamer, whose smoke could and must suffer the consequences

be seen approaching from below, resulting from their own miscon-

Prooeeding, the latter, observing duct; that the steamer was justi-

the descending tow, sheered over fled in taking the means necessary

as far as possible to one side of the to protect itself from danger,

channel The channel being so i The Sturgis v. Clough, 21 How.

narrow that collision was inevita- 451.

ble, the steamer went through the > The R. L. Maybey, 4 Blatclu

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[§ 139.

While courts recognize legitimate enterprise on the part
of tugs seeking tows, they will not shield one wantonly im-
periling the safety of another in striving for precedence.*

Sec. 139. Presamption of fault. — The presumption of
law is that where a tow is brought into a situation where
collision ensues, the tug is responsible. This is based upon
the fact that the tug has control of its own and the other's
movements, and the contract of towage imposes upon the
tug the duty of avoiding situations where collision or injury
to the tow may ensue.* But where it is shown that the con-
tract of towage was made in view of peculiar peril to be
encountered by both the tug and tow, and that the liability
for error in navigation was fully considered and submitted
to as part of the risks to* be borne by the tow, the ordi-
nary presumption of negligence on the part of the tug is not
such as to warrant a court in pronouncing it in fault with-
out strict proof of the same by the party alleging.'

Mere proof of a loss suffered by a tow, however, does not
alone raise a presumption of negligence against the tug in
the absence of afl5rmative evidence of negligence.*

88; The Jesse Spalding, 50 Fed. R

>The K D. Holton, 65 Fed. R
1010; Latham v. Hamilton & Mer-
riam Ca, 63 Fed. R 856.

In Slyfield v. Penfold, 66 Fed. R
632, a schooner coming into a har-
bor signaled for a tug. Two rival
tugs, the H. and the C, responded.
The schooner accepted the services
of the H., but after making a num-
ber of imsuccessf ul efforts to catcli
the tow-line, the schooner, which
was then in danger of grounding,
ordered the H. to leave and ordered
the C. to come to its rescue; the
H. backing in between the other
and the schooner, causing it to
ground. Held, that the proximate
cause of the damage was the wan-

ton conduct of the H., and that it
was liable for the resulting dam-

*The Delaware, 20 Fed. R 797.

•The Packer, 24 Blatch. 27; The
V^m. Kraft, 83 Fed. R 847.

< The A. R Robinson, 57 Fed. R
667; The Webb, 14 WaU. 406.

Where the master of a tug had
no license for the waters he was-
navigating, but the master of the
tow liad, and both the tug and tow
were under his control, it wa*
held that the fact tliat the master
of the tug had no license raised no
presiunption of negligence con-
tributing to the collision, the
master of the tow skilfully per-
forming the duties of both. The
Charlotte, 51 Fed. R 455.

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Sec. 140. The act of congress of February 18, 1895, pro-
vides that —

" On and after March 1, 1895, the provisions of sections
4233, 4412 and 4413 of the Revised Statutes, and regulations
pursuant thereto, shall be followed on the harbors, rivers
and inland waters of the United States. The provisions of
said sections of the Revised Statutes and regulations pur-
suant thereto are hereby declared special rules duly made by
local authority, relative to the navigation of harbors, rivers
and inland waters, as provided for in article 30 of the act of
August 19, 1890, entitled * An act to adopt regulations for
preventing collisions at sea.'

" Sec. 2. The secretary of the treasury is hereby author-
ized, empowered and directed from time to time to designate
and define by suitable bearings or ranges, with light-houses,
light vessels, buoys or coast objects, the lines dividing the
high seas from rivers, harbors and inland waters.

" Sec. 3. Collectors or other chief oflBcers of the customs
shall require all sail-vessels to be furnished with proper
signal-lights. Every such vessel that shall be navigated
Avithout complying with the statutes of the United States,
or the regulations that may be lawfully made thereunder,
shall be liable to a penalty of $200, one-half to go to the in-
former; for which sum the vessel so navigated shall be
liable, and may be seized and proceeded against by way of
libel in any district court of the United States having juris-
diction of the oflfense.

" Sec. 4. The words ^ inland waters ' used in this act shall
not be held to include the Great Lakes and their connecting
and tributary waters."

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The passage of this act in effect restores the old rules of
1864,^ as amended, and as supplemented by the supervising-
inspectors', rules, on the harbors, rivers and inland waters of
the United States, excepting the Great Lakes and their trib-
utary and connecting waters.

Under the act of 1885 it was held that in the local navi-
gation of harbors the old rules of 1864, supplemented by the
inspectors' rules, were applicable ; but that where the harbors
were so situated as to be accessible directly from the sea, a
vessel entering therefrom and proceeding through it to its
destination continued to be governed by the international
rules.^ Under the act of 1890 no such distinction can arise^
as the act by its terms governs the navigation of all vessels
of the United States " upon the high seas and in all waters
connected therewith navigable by sea-going vessels." The
act of February 8, 1895, however, places at rest aU question
as to whether the international rules have any application
in harbor navigation. Under the statute of 1885 it often
becomes a question of great difficulty to determine just
Avhere the international rules are suspended and those gov-
erning the navigation of harbors and rivers begin. Under
the present statute the secretary of the treasury is authorized
to designate and define lines dividing the high seas from
rivers, harbors and inland waters, and when this is done all
uncertainty will be removed.

Sec. 141. Western rivers — Inspectors' rule I — Bight
of way. — "When steamers are approaching each other from
opposite directions, the signals for passing shall be one blast
of the steamer's whistle to pass to the right, and two blasts
of the steam-whistle to pass to the left. The pilot on the
ascending steamer shall be the first to indicate the side on
which he desires to pass; but if the pilot in the descending^
steamer shall deem it dangerous to take the side indicated

1 U. S. R. a, §§ 4233, 4412, 44ia Fed. R 98; The Excelsior, 38 Fe<L
2 The Greenpoint, 31 Fed. R. 231 ; R 564
The Aurania and The Republic, 29

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by the pilot of the ascending steamer, he shall at once sig-
nify that fact by sounding the alarm or danger-signal of
three or more short blasts of the steam-whistle, and it shall
be the duty of the pilot of the ascending steamer to answer
by a similar signal of three or more blasts of the whistle,
after which the pilot of the descending steamer may indi-
cate by his whistle the side on which he desires to pass, and
the pilot of the ascending steamer shall govern himself ac-
cordingly, the descending steamer being entitled to the right
of way.

" The signals for passing must be made, answered and un-
derstood before the steamers have arrived at a distance of
eight hundred yards of each other. ' Provided, however^
that when a steamer on the Mississippi river is about to
enter the Ohio river at the same time that a steamer on the
Ohio river is about to enter the Mississippi river at Cairo
Point, the steamer on the Mississippi river shall give the
first signal. But in no case shall pilots on steamers attempt
to pass each other until there has been a thorough under-
standing as to the side each steamer shall take.' " ^

By this rule the descending steamer has the right of way.
If it fails to adopt the course indicated by the one ascend-
ing, when the descending steamer fails to observe the rule
and makes no signal of approval or disapproval of the course
designated, or returns a signal which is not understood by
the one ascending, it is the diity of the latter to stop and
not proceed until a full understanding is reached as to what
direction each will take. The fact that either does an unlaw-
ful act does not excuse the other, and each is liable for the
consequences of its unlawful conduct.'

The primary right of selecting the course to be pursued
is conferred by the rule on the ascending boat, the other
having the right to refuse to comply with its selection. The
right of way being with the descending steamer, the other,
on receiving notification of its course, must govern itself ac-

» Rule 1 for Western Rivers, In- » United States v. Keller, 19 Fed,
Hpectors' Rules, 1895; The Wydale, R 63a
37 Fed, R 718.

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cordingly.^ The descending boat having the right to insist
that its designation of coarse be observed, confers upon it
no right to insist upon its selection, when by so doing risk
of collision is enhanced.* The rules are to be liberally con-
strued with the end in view that they are established for the
prevention of collisions, and the courts will not tolerate
captious or capricious conduct by insisting on the observance
of a rule where it is not clearly within the spirit of the gen-
eral regulations. The rule giving the ascending vessel the
right to select its course, if not disputed by the other, can-
not be understood as giving the up-stream boat the right,
under aU circumstances, of choosing its line of navigation;
ss where the ascending vessel is on one side of the river and
the one descending is on the opposite side, with sufScient
depth and width of river between, the law will not permit
the one having the right of way to captiously insist that
the other shall cross over and pass at its dictation.'

As between steamboats and flat-boats, and similar craft
floating down stream, the right of way is with the latter, and
the steamer is obliged to avoid them. In case of collision,
the presumption of fault is against the steamer and in favor
of the flat-boat. As between a descending tug with a tow,
and one ascending a river in a narrow channel or in a bend
of a river, the descending vessel has the right of way.*

Sec. 142. Inspectors' rule II. — " K from any cause the sig-
nals for passing are not made at the proper time, as provided
in rule I, or should the signals be given and not properly
understood from any cause whatever, and either boat be-
comes imperiled thereby, the pilot on either steamer may
be the first to sound the alarm or danger signal, which shall
consist of three or more short blasts of the steam-whistle in
quick succession. Whenever the danger signal is given, the
engines of both steamers must be stopped and backed until

1 Rule 1, Supervising Inspectors* * Thorp v. The Defender, 1 Bondr

Rules, 1895. 397.

2Schenck v. The Fremont, 1 < The MarshaU, 12 Fed. R. 921.
Bond, 57.

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their headway has been fully checked. Nor shall the en-
gines of either steamer be again started ahead until the
steamers can safely pass each other. Vessels approaching
each other from opposite directions are forbidden to use
what has become technically known among pilots as "cross-
signals;" that is, answering one whistle with two, and an-
swering two whistles with one. In all cases and under all
circumstances a pilot receiving either of the whistle signals
provided in the rules, which for any reason he deems inju-
dicious to comply with, instead of answering it with a cross-
signal must at once observe the provisions of this rule."

Sec. 143. Narrow channel — Inspectors' rule III. —

" When two boats are about to enter a narrow channel at the
same time, the ascending boat shall be stopped below such
channel until the descending boat shall have passed through
it; but should two boats unavoidably meet in such channel,
then it shall be the duty of the pilot of the ascending boat to
make the proper signals; and when ansTjrered, the ascending
boat shall lie as close as possible to the side of the channel
the exchange of signals may have determined, as provided
by rule I, and either stop the engines or move them so as
only to give the boat steerage-way, and the pilot of the de-
scending boat shall cause his boat to be worked slowly until
he has passed the ascending boat. When two steamers are
a>pproaching a bridge-span or draw from opposite directions,
and the passing signals as provided in rule I have been given
and understood, should the pilot of the descending steamer
deem it dangerous for the steamers to pass each other be-
tween the piers of such span or draw, he shall sound the alarm
or danger signal, and it shall then be the duty of the pilot
of the ascending steamer to answer with a similar alarm sig-
nal and to slow or stop his engines below such span or draw
until the descending steamer shall have passed." ^

iRule III, Board of Supervising The Scotts Greys v. The Santiago
Inspectors, 1896; Canfield v. The de Cuba, 19 Fed. R. 218; The City
F. & P. M. Na 2, 44 Fed. R. 698, of Springfield, 26 Fed. R. 15a
701; The Cherokee, 15 Fed, R. 119;

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Every steamer navigating the rivers and interior waters
of the country is presumed to know the situation and
character of narrow and dangerous places in the waters
it is navigating. The omission of a descending vessel to*
give the usual warning signal required by the rule will not
justify an ascending steamer aware of its presence from
failing to remain below the dangerous passage while the as-
cending boat passes.^

Sec. 144. Inspectors' rule IV.— "When a steamer is as-
cending and running close on a bar or shore, the pilot shall
in no case attempt to cross the river, when a descending
boat shall be so near that it would be possible for a collision
to ensue therefrom."*

Sec. 145, Inspectors' rule V — Bend of river.—" Where
any steamer, whether ascending or descending, is nearing a
short bend or point where from any cause a steamer ap-
proaching in an opposite direction cannot be seen at a dis-
tance of six hundred yards, the pilot of such steamer, when
he shall have arrived within six hundred yards of that bend
or point, shall give a signal of one long sound of his steam-

1 The Rescue, 24 Fe<L R 44 ; West-
em Ina Ca v. The Goody Friends,
1 Bond, 459.

In The Monitor, 4 Biss. 503, a tug
and tow were navigating a narrow
channel, and coUided with a canal-
boat lawfully moored at the side
of the channel, caused by the suc-
tion created by the passage of an-
other vessel Hddy that the tug
was liable for attempting to pass
in a dangerous situation while an-
other was making the same pas-

Where an ascending vessel en-
tered a narrow channel of a river
where a tug with barges in tow
were situated with one barge

aground, it appearing that there
was sufficient room to pass, the as-
cending vessel was held not at fault
for collision resulting from an un-
expected drifting of one of the
barges. The Cherokee, 15 Fed. R.

It is negligence for a steamer, in
a narrow channel only seven hun-
dred or eight hundred feet wide,
where the presence of shipping
may reasonably be expected, to
run at the rate of fourteen knots
per hour on a dark night The
Saratoga, 87 Fed. B. 119.

2 Rule IV, Supervising Inspect-
ors' Rules 1895.

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whistle, as a notice to any steamer that may be approach-
ing; and should there be any approaching steamer within
hearing of such signal, it shall be the duty of the pilot
thereof to answer such signal by one long sound of his
steam-whistle; when both boats shall be navigated with the
proper precautions, as required by the preceding rules." *

In the navigation of most western rivers the custom is for
ascending boats to navigate near the points, and the de-
scending boats to run the bends. Where this custom pre-
vails and is not observed, and collision results, it has been
held that the boat failing to conform to the custom will be
liable.^ In running a bend, neither of two approaching boats
has a right to rely upon the other to hold its exact course.
It is only required to keep its relative course.*

Sec. 146. Inspectors' rule TI — Navigating in fog.—

^' When a steamer is running in a fog or thick weather, it
shall be the duty of the pilot to sound his steam-whistle at
intervals not exceeding one minute. Steamers on rivers
whose waters flow into the Gulf of Mexico, lying to during
fog or thick weather, when the fog whistle or any sound is
heard indicating the approach of another steamer, shall, if
lying on the right shore or right bank, give one tap of the
bell; if lying on the left shore or left bank, give two taps
of the bell at intervals of not more than one minute, to indi-
cate their presence, which signals shall continue until the
approaching steamer has passed. Hight or left shore or
bank is understood by facing down stream or with the
flow of the current." This rule is not prohibitory, and is
not intended to prevent boats from running in a fog; it

' Rule V, Supervising Inspectors' A tug with a heavy tow, coming

Rules 18W; The City of Spring- down a river with the current,

field, 26 Fed. R. 158; The Lucy, 44 having to pass a sharp bend where

Fed. R 988; Stark v. The F. & P. the tide sweeps rapidly toward the

M. Na 2, 44 Fed. R. 701. opposite shore, has the right of

^Shirley v. The Richmond, 2 way over an ascending tug and

Woods, 58. tow. The Marshall, 12 Fed. E.

3The W. H. Beaman, 18 Fed. R. 92t

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simply throws about their navigation such safeguards as it
can to reduce the risks of collision. The propriety of navi-
gation under the particular circumstances must in all cases
be left to the decision of the vessel at the time.^ While the
mere act of navigating in a fog is not unlawful, if it is
coupled with the navigation of a dangerous situation, the re-
strictions imposed are proportioned to the dangers of the

Sec. 147. Passing — Inspectors' rule Til.'— "Where
steamers are running in the same direction, and the pilot of
the boat astern shall desire to pass either side of the boat
ahead, he shall give the sigual as in rule I, and the pilot of
the boat ahead shall answer by the same signal, or, if he jpre-
fers to keep on his course, he shall make the necessary sig-
nals, and the boat wishing to pass must govern herself
accordingly ; but the boat ahead shall in no case attempt to
cross her bow or crowd upon her course.

"Every vessel coming up with another vessel from any
direction more than two points abaft her beam, that is, in
such a position with reference to the vessel which she is
overtaking that at night she would be unable to see either
of that vessels side-lights, shall be deemed to be an overtak-
ing vessel, and no subsequent alteration of the bearing be-
tween the two vessels shall make the overtaking vessel a
crossing vessel, within the meaning of these rules, or relieve
her of the duty of keeping clear of the overtaking vessel
until she is finally past and clear."

In the navigation of rivers, as in the navigation of larger
bodies of water, the law requires vessels to keep at a dis-
tance from each other in passing and in following, sufficient
to enable each to avoid the other in case of mishap or con-
tingency liable to arise. In the navigation of narrow
streams and doubtful channels, a vessel following another

1 The Joseph W. Gould, 19 Fed. «For further inspectors' rules
R 785. see page 80.

2 The St. John, 29 Fed. R 22t

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should keep so far astern that in case of sudden stop or mis-
hap it will have suflBcient room to keep away.^

Where two vessels are ascending a river abreast of each
other, the outer one having the greatest amount of sea-room
is obliged to give way to the inner one and to keep at suffi-
cient distance to avoid danger of collision.'

Sec. 148. Dangerous rate of speed. — No rate of speed
can be prescribed for the navigation of rivers that would be
applicable at all times and all places. The rule as to reason-
able speed is the same as that applicable to deep-water navi-
gation. It must be such a speed as to enable the vessel to
avoid one approaching within such distance as it is observ-
able, taking into consideration the speed of both vessels.'

In navigating in foggy weather near piers or where the
presence of boats may be reasonably expected, or in navi-
gating a narrow channel, prudence demands the greatest
care, and the speed should be reduced to a point where the
forward direction of the boat may be changed on approach
of danger.* The fact being shown that such excess of speed
did not contribute to the injury, no liability is thereby in-
curred. The proof, however, should be clear and positive,
and the burden of showing that it did not contribute to the
collision is upon the party asserting the fact.'

1 The Hackensack, 32 Fed. R 800. a narrow channel nearly end on,

* W. J. Portevant v. The Bella with a combined speed of nearly
Donna, 1 Newb. 510. nine miles per hour, was held to be

•Seven or eight miles an hour is running at excessive speed. The

too great a rate of speed for a San Carlos, 14 Fed. R. 797.

steamboat having barges in tow, ^The City of Macon, 47 Fed. R.

in foggy weather, at a dangerous 919.

point on the Mississippi river. Se- In the case of The Florida, 4

curity Ins. Co. v. The Milwaukee, Blatch. 470, it was held that nine

4 Am. L. T. (U. S. Cts.) 147. miles an hoiur was excessive speed

* The St John, 29 Fed, R. 221 ; in a river crowded with shipping.
Grey v. The Jessie Russell, 5 Fed. In the case of The Morning Star,
R 639; The Minnie, 20 Fed. R 54a 4 Biss. 62, twelve and a half miles

A steam-vessel approaching a without a competent lookout was
fiailing-vessel in the night-time in unreasonable speed in a river where

Online LibraryHerbert R. (Herbert Ransom) SpencerA treatise on the law of marine collisions → online text (page 27 of 42)