sity of observing rules of navigation wherever it is possible Article 27. to do so. A. was a brig bound down the Thames against the flood-tide, with the wind free. B., a brig bound up the river, was required by the Trinity Rule (r) to pass to the northward of A. Close ahead of A. was a schooner, which, in violation of the Trinity Rule, passed to the northward, or inside B. Expecting that A. would follow in the wake of the schooner and pass inside, B. starboarded, and in attempting to pass outside or to the southward of A. came into collision with her. B. alleged that there was no room for her to pass between the schooner and A. It was held that the fact of the schooner having safely passed B. on the wrong side—of her having violated the rule with impunity was no justification to B. for herself violating the rule, in the expectation that A. would not obey the rule, but would follow the schooner, and pass inside. In The Khedive (y), before the House of Lords, the safety which arises from universal obedience to the regulations, where it is possible to obey them without causing a collision, is strongly insisted upon. They must, it was said, be complied with, although in the particular case it may seem to be better seamanship not to do so. "These rules are general rules," said Lord Hatherley, "to be adopted by all persons having charge of the navigation of vessels, with the exceptions which have been pointed out (as to immediate danger). This rule (as to stopping and reversing) is not laid down merely for the sake of the vessel commanded by the man who breaks it, but for the sake of the vessel commanded by the man approaching at a distance, and who has no right or reason to suppose that he will break it. If the rule is observed, every person will know precisely what he is to do, and will say, 'I will carry (x) It does not clearly appear whether she had the wind free or was close-hauled. In either case her duty as to passing to the northward of the other ship was the same. (y) Stoomvaart Maatschappy Nederland v. Peninsular and Oriental Steam Navigation Co., The Khedive, 5 App. Cas. 876, 895, 904, 909. Article 27. Art. 27 prevents the regulations being applied so as to cause collision. out my directions entirely with that knowledge.' On the other hand, if the Court allows these rules to be lightly departed from, the result will be the very evil which the Act was intended to prevent." And in the same case, Lord Watson (2) said: "It was the deliberate policy of the legislature to compel sea captains, where their vessels are in danger of collision, to obey the rule (Art. 16 of 1863), and not to trust to their own nerve and skill." At the date of the observations of Dr. Lushington in the case cited above (a) there was in force no enactment or rule corresponding to Art. 27. A saving clause restraining the indiscriminate application of the statutory rules of navigation first appears in 17 & 18 Vict. c. 104, s. 296. An Article to the same effect (Art. 19) is included in the Regulations of 1863. The purpose of such an enactment clearly is to provide for cases where a literal compliance with the regulations would cause a collision or bring the ships into certain peril. The stringency of the existing regulations would seem to be greater than that of the (1840) Trinity House Rule of port helm. In The Friends (b), Lord Campbell said that that rule applied only where, by its application, a collision "may probably be avoided." Of the corresponding Article of the former law Dr. Lushington said that it was not a directory enactment, telling persons to do this or that, but that it released them from the severe obligation of complying with the regulation under circumstances which would render obedience to them dangerous, when, by deviation, they might escape danger (c). But Art. 27 applies only to cases where "there is immediate danger, perfectly clear" (d); and the departure from the rules must be no more than is necessary (dd). It "does not prescribe any particular measures () 5 App. Cas. 904. (b) 4 Moo. P. C. C. 314, 320. The Eliza and The Orinoco, 1 A. & E. 93, 97. (d) The Allan and The Flora, 14 L. T. 860; The Moderation, 1 Moo. P. C. C. 528. (dd) The Saragossa, supra, p. 508. that should be adopted in departing from the strict terms of any of the previous regulations that it governs, but it merely states that in construing and obeying these regulations as far as possible you may take into consideration urgent attendant circumstances. It is common sense; for if any rule were laid down by Act of Parliament, or any other authority, that could never be departed from in certain states of circumstances, such a rule would necessarily involve, on many occasions, the destruction of ships which it was intended to preserve" (e). "The duty is to avoid collision by observing the rules, primarily; by departing from them, if necessary, to avoid danger" (ƒ). Not only is departure from the rule of the road excused by Art. 27, where the rule cannot be obeyed without collision, but a literal observance of the regulations cannot be set up as a defence where the collision might have been avoided by ordinary care (g). "When one person neglects his duty, and so puts another into danger, the second is not justified in doing nothing to avert that danger, though it is caused entirely by the fault of the first" (h). "You may depart, and you must depart, from a rule if you see with perfect clearness, almost amounting to certainty, that adhering to the rule will bring about a collision, and violating a rule will avoid it; and, indeed, this is provided for by the 19th Article" (of the Regulations of 1863) (i). And, again, "you have no right to stand in a difficulty upon a right, though it may be a perfectly good right, obstinately, recklessly, and regardless of the safety of Article 27. Duty to avoid collision, and for that' purpose to depart from the regu lations if necessary. Article 27. others "(). Art. 27, in fact, merely states the general principle, which, it is submitted, would prevail in the absence of such an enactment. The principle was thus stated by Best, C.J.:-"Although there may be a rule of the sea, yet a man who has the management of one ship is not to be allowed to follow that rule to the injury of a vessel of another, where he could avoid the injury by pursuing a different course" (1). A barque close-hauled on the starboard tack was held to be solely in fault for a collision with a barque that had just been in stays, and had not gathered way on the port tack. The Court (in Ireland) said that if a ship insists on her right, under a rule of navigation, of not giving way, and makes no effort to prevent the collision when it is in her power to do so, she will be held not to have performed her duty, and to be in fault for the collision (m). So a ship on the port tack was (in 1850) held in fault for a collision with another having the wind free, which she had seen a mile and a-half off and did not attempt to avoid (»); and more recently a schooner on the starboard tack was held in fault for doing nothing before she came into collision. with a smack hove-to on the port tack (o). The Lady Anne, close-hauled on the starboard tack, was meeting another ship, close-hauled on the port tack. It was held that The Lady Anne might have avoided the collision by putting her helm down at the last moment and easing off her head sheets, and that she was in fault for not doing so (p). So a sailing ship will be held in fault for a collision with a steamship if she makes no attempt to avoid a (k) The Legatus and The Emily, Holt, 217. (1) Handayside v. Wilson, 3 Car. & P. 528; see also Mayhew v. Boyce, 1 Stark. 423; cf. The C. R. Stone, 49 Fed. Rep. 475; The Hercules, 51 Fed. Rep. 452, 475. (m) The Ida and The Wasa, 2 Mar. Law Cas. O. S. 414. (n) The Commerce, 3 W. Rob. 287; but see the observations of Sir J. Colville on this case, 4 App. Cas. 672. (0) The Rosalie, 5 P. D. 245. collision, where it is clearly in her power to do so. In such a case a mere adherence to the letter of the regulations is no justification. In The Sunnyside, a sailing ship, with the wind free, saw the mast-head and green lights of a steamship half a point on her port bow, a considerable distance off. The lights were those of a tug, drifting before the wind, at about a mile and a-half an hour, and waiting for employment. The sailing ship kept her course, and did not alter her helm until it was too late to avoid the tug. It was held in America by the Supreme Court that the sailing ship was in fault, as well as the tug (q). In The Zadok (r), a sailing ship was held in fault for a collision in a fog with a steamship, because, amongst other acts of negligence, after she heard the whistle of the steamship approaching, she had no hands stationed at the braces ready to let them go so as to assist the helm when the steamship came into sight at close quarters. The Tasmania (s), a steamship going three and a-half knots, saw the red light of another steamship one mile or more distant, and two points upon her port bow. When the latter was about four ship's lengths off, the green came into view. No alteration in speed or helm was made until the hull of the other ship was seen. The question was whether The Tasmania was in fault, under Art. 23, for not having altered her course before the collision. After different decisions in the Courts below, the House of Lords held that she was not in fault (t). And in The Highgate (u), Sir James Hannen distinguished the then subsisting decision of the Court of Appeal in The Tasmania, and refused Article 27. |