CHAPTER XIV.

THE REGULATIONS FOR PREVENTING COLLISIONS AT SEA.

MANY years before the rule of the road at sea was regu- Legislation as lated by Act of Parliament, the practice of seamen had to the rule of established rules to enable approaching ships to keep clear of each other. These rules, which are the foundation of those now in force, were well established by custom, and formed part of the general maritime law administered by the Admiralty Court (a). In the year 1840 a rule (b) as

(a) A rule of the road for ships on opposite tacks existed at least as early as the latter part of the last century. In Admiralty Regulations of that date, to be observed by ships under convoy, there appears a rule to the effect that a ship on the larboard tack shall bear up for another on the starboard tack. But it is doubtful whether this rule existed in the previous century. In the Earl of Warwick's Sailing Instructions of 1645, there is an Article directing that no captain shall take the wind of an admiral. (Ad. Ct. Rec. Miscell. bundle 57.) And the Duke of York's Sailing Instructions of about 1670 contain an Article to the like effect. In neither of these codes, nor in any of the pleadings or sentences of the 17th and 18th centuries, is there any trace of the "port tack" rule. In The Resolution (Marsd. Ad. Cas. 332), of the year 1789, the rule is said to have been framed by Lord Howe seven or eight years previously.

The rule that a ship with the wind free must give way to a ship close hauled appears to have been

first recognized by the Courts in
Lord Erskine's time, "in a case
tried at Guildhall before Mr. Justice
Buller." See a letter addressed by
Lord Erskine (an old sailor) to
Lord Stowell, dated 7th Dec. 1821,
respecting Lord Stowell's judgment
in The Dundee, reported in the
"Times" of 6th Dec. 1821. The
letter will be found in the life of
Lloyd, first Lord Kenyon, by the
Hon. G. T. Kenyon, Longmans,

1873.

In the year 1828, the rule of the road at sea was thus stated in evidence by a competent witness :"If a vessel is going close-hauled to the wind, and another meeting her is going free, the rule at sea is for the vessel meeting her to go to

(b) This rule-to the effect that steamships shall pass on the starboard hand of each other-will be found 1 W. Rob. 488. As to its construction, see The Friends, 1 W. Rob. 484; 4 Moo. P. C. C. 314; The Unity, Sw. 101; The Duke of Sussex, 1 W. Rob. 274; The Hope, ib. 154; The Immaganda Sara Clasina, 8 Moo. P. C. C. 85.

Enactment of the existing regulations.

to the side on which steamships were to pass each other was promulgated by the London Trinity House, and enforced by the Admiralty Court. In 1846 the subject was first dealt with by the Legislature (c), and since that year the law has been altered or added to by four successive Acts of Parliament (d). The only Act now in force is 57 & 58 Vict. c. 60.

By that Act (sect. 418), power is given to her Majesty, upon the joint recommendation of the Admiralty and the Board of Trade, by Order in Council, to make regulations for preventing collisions. Such regulations are to apply to British ships everywhere, and to foreign ships when within British jurisdiction.

By Order in Council of 27th November, 1896, the regulations of 1884 (except Art. 10) were annulled as to British ships, as from the 1st July, 1897, and the regulations printed below (hereinafter called the regulations of 1897) were substituted for them.

By 57 & 58 Vict. c. 60, s. 424, Her Majesty is empowered, with the consent of the foreign government, to direct that the regulations shall apply to the ships of foreign countries, whether within British jurisdiction or not, and that such ships shall, for the purpose of the regulations, be treated as if they were British ships. By Orders

leeward; and the reason of it is
that otherwise the vessel going to
windward would lose her position,
and could not get in again without
another tack, which would be an
inconvenience to her, and not to
the vessel going free." By the
Court, the rule was thus stated:-
"The ship which has the wind at
large may go either to leeward or
to windward; but, as a general
rule, she ought to expect that the
ship which is close-hauled will
keep to windward, and therefore
she ought to go to leeward, unless
it is quite clear that she can go to
windward with safety." See Han-
dayside v. Wilson, 3 C. & P. 528.

In Jamieson v. Drinkald, 5 L. J. C. P. O. S. 30, expert evidence as to the custom was heard, and a new trial was ordered upon the ground that evidence had been wrongly admitted upon the question which ship was in fault. At the new trial the judge was to have "the assistance of two Brethren of the Trinity House, to explain the duties of the masters of both ships." (c) 9 & 10 Vict. c. 100.

(d) 14 & 15 Vict. c. 79; 17 & 18 Vict. c. 104; Admiralty Order of 26th Oct. 1858, see Appendix, Swabey's Rep. 25 & 26 Vict. c. 63; 57 & 58 Vict. c. 60.

in Council of 18th May, and 7th July, 1897, they have been applied to ships of the Argentine Republic, AustriaHungary, Belgium, Brazil, Chili, China, Costa Rica, Denmark, Ecuador, Egypt, France, Germany, Greece, Guatemala, Italy, Japan, Mexico, Netherlands, Norway, Peru, Portugal, Russia, Siam, Spain, Sweden, United States; with a proviso that, in the case of China, they shall apply only to ships of war and merchant ships of foreign type.

At the present date (July, 1897), ships of Cochin, Kattyawar, Khelat, Kutch, Muscat, Travancore, and Zanzibar, (see Order in Council of 6th Sep., 1880); ships of Ecuador and Hawaii (see Order in Council of 27th Nov,, 1880); and ships of Turkey (see Order in Council of 9th July, 1885), are subject to the regulations of 1880 or 1884 (e), except, in the case of Japan, the Article as to fog-horns, and, in the case of Turkey, the Article as to bells.

Production of the Gazette containing the Order in Proof of Council making or altering such regulations, or a copy regulations. of the regulations signed or purporting to be signed by a secretary or assistant secretary of the Board of Trade, or sealed or purporting to be sealed with the seal of the Board of Trade, is sufficient evidence of the due making and purport of such regulations (supra, p. 337).

The Submarine Telegraph Act, 1885 (48 & 49 Vict. Submarine c. 49), embodies a convention, to which the principal Act, 1885. Telegraph maritime nations are parties, having for its object the preservation of international telegraphic communication by submarine cables. By Art. 5 of the Convention, vessels laying or repairing cables are required to conform to regulations for preventing collisions agreed upon by the signatory Powers; and by sect. 5 of the Act, the powers to make such regulations contained in the Merchant

(e) See M. S. Act, 1894, s. 745.

Whether regulations directed to

other objects than preventing collision

are authorized

by M. S. Act,

1894.

In what waters they apply.

Shipping Acts are enlarged so as to give effect to regulations made for the purpose of preventing damage to ships laying or repairing cables by other ships, both within and without the territorial waters. By Arts. 5 and 6 of the Convention, vessels are required not to approach or stay within a nautical mile of telegraph repairing ships or buoyed cables. No such regulations as are referred to in the Convention have been agreed to by all the signatory Powers up to the present date (1897). The signatory Powers are: Great Britain, Germany, Argentine Republic, Austria, Belgium, Brazil, Costa Rica, Denmark, St. Domingo, Spain, United States, Colombia, France, Guatemala, Greece, Italy, Turkey, Holland, Persia, Portugal, Roumania, Russia, Salvador, Servia, Sweden, Norway, and Uruguay.

The Convention has been amended, with reference to the legal liability for accidental damage to cables, by 50 Vict. c. 3, and an Order in Council of 3rd May, 1888, in pursuance of a notice of 20th April, 1888 (gazetted 24th April, 1888).

It has been said that the object of the existing regulations is not only to prevent collisions, but to minimise their effect (f). It is not clear that her Majesty has power to make regulations for any object but to prevent collisions. Any regulation, however, directed to mitigate the effect of a collision would probably be held to tend to the prevention of collision, and to be well made under the powers given to her Majesty by the Act above mentioned.

The power given by the Merchant Shipping Act, 1894, s. 418, is "to make regulations for the prevention of collisions at sea"; and the heading of the regulations in the schedule to the Order in Council of 27th November,

(f) See per Lord Watson in The Voorwaarts and The Khedive, 5 App. Cas. 876, 903, 904; and see Mac

laren V. Compagnie Française de Navigation à Vapeur, 9 App. Cas. 640, 651, 652.

1896, so describes them; but the preliminary paragraph of the regulations states that they are binding "in all waters connected therewith," i. e., with the sea. Whether they have statutory force elsewhere than "at sea" is not clear (g); whether, for example, an infringement of them in a river or harbour, where no local rules are in force, would bring a ship within the penalty of s. 419 is doubtful. It would seem that so highly penal an enactment must be construed strictly, and that an infringement elsewhere than at sea is not within the purview of s. 419 (h). But, except in waters where local rules, inconsistent with the regulations, are in force, it would probably be held that vessels are required to navigate in accordance with the regulations in rivers and harbours, as well as at sea. Many cases have been decided upon the assumption that they apply in rivers and narrow waters (i). The operation of Art. 25 (the starboard side rule) is certainly not confined

(g) See per Brett, L.J., in The Franconia, 2 P. D. 8. The dictum of the Lord Justice in this case to the effect that the regulations of 1863 are inapplicable in a winding river, cannot mean that they are never applicable in such waters. It must be taken to mean that they are not always applicable in a winding river to ships in such positions that they would be bound by them if at sea. The Admiralty Rules of 1851 as to ship's lights were held to apply in the Thames; Morrison v. General Steam Navigation Co., 8 Ex. 733. The Order in Council applying the regulations of 1863 to American inland waters, assumes that their operation is not confined to the sea.

(h) In America, power is given by Act of Congress of 19th Feb. 1895, c. 102, to a department of the Government to fix the line dividing waters within which the sea regulations are applicable from inland and coast waters within which local

M.

rules are in force. The "London Gazette" of 30th March, 1897, contains Notices to Mariners (No. 349 of 1895, and No. 171 of 1897) of the fixing of such lines in certain American waters. A summary of the American "inland rules" is given in the Appendix below, p.

591.

(i) The Concordia, L. R. 1 A. & E. 93; The Velocity, L. R. 3 P. C. 44; The Cologne and The Ranger, ibid. 4 P. C. 519; The Owen Wallis, L. R. 4 A. & E. 175; and see The Fyenoord, Swab. Ad. 374; The Germania, P. C. 17th June, 1875, cited 1 Maude & Pollock on Shipping, 606, note (i); The Leverington, 11 P. D. 117. In America the Act of Congress embodying the Regulations of 1863 is expressed to be for preventing collisions "on water.' By the Canadian Statute 31 Vict. c. 58, the regulations are applicable over all the inland and other navigable waters of the Dominion.

BB