one of the ships is under way and the other, though not at anchor, is for any other reason unable to keep out of the way; as where she is fishing and fast to her nets, or in stays, or disabled (m). And it applies though the ship at anchor is brought up in the fair-way, or elsewhere in an improper berth. "It is the bounden duty of a vessel under way, whether the vessel at anchor be properly or improperly anchored, to avoid, if it be possible with safety to herself, any collision whatever" ("). If one ship, properly lighted (if at night), is fast to the shore, or lying at established moorings, it can scarcely happen that the other would not be held in fault for the collision (o). But under such circumstances she must not be allowed to steer with her head or stern into the navigable channel (p). Where a steamship in the daytime ran into a sailing ship brought up in a river 500 yards wide, it was held by an American Court that the steamship was solely in fault, although the sailing ship was riding with her sails up, sheering about, and with no anchor watch (9). A vessel hove-to has not the privileges of a ship at anchor. She is under way, and in case of risk of collision must comply with the regulations so far as she is able to do so. She must not rely upon the other ship keeping out of her way (r). Article 29. chor, bringing The following cases illustrate the requirements of the Ship at anlaw as to the duty of a ship when coming to an anchor, up, or getting when brought up, and when getting under way : under way. A ship in bringing up must not give another a foul Foul berth. (m) See above, p. 35. (n) Per Dr. Lushington in The Batavier, 2 W. Rob. 407; and see The Dura, 1 Pritch. Adm. Dig. 174; The Marcia Tribou, 2 Sprague, 17; but see The Kjobenhavn, 2 Asp. Mar. Law Cas. 213. (0) See The Secret, 1 Asp. Mar. Law Cas. 318; and Culbertson v. Shaw, 18 How. 584; Portevant v. M. The Bella Donna, Newb. Adm. 510; (p) The St. Lawrence, 19 Fed. (a) The Planet, Brown, Adm. 124. N N Article 29. berth. "If one vessel anchors there, and another here, there should be that space left for swinging to the anchor that in ordinary circumstances the two vessels cannot come together. If that space is not left, I apprehend it is a foul berth" (s). In an American case it was held that a ship at anchor is entitled to have room to swing, not only with the scope of cable which she has out at the time when the other ship takes up her berth, but with as long a scope as may be necessary to enable her to ride in safety (t). If a ship gives another a foul berth she cannot require the latter to take extraordinary precautions to avoid a collision (u). It has been held that in the Mersey a cable's length between the two ships is a clear berth (~). This, however, cannot be laid down as a general rule, for at this distance a laden vessel riding to the tide might, in swinging, come dangerously close to a light vessel riding athwart the tide. And not only must a vessel not bring up so close to another as not to give her room to swing, but she must not bring up in such a place that she endangers the other ship. She should not bring up directly ahead, or in the stream of another ship, having regard to the current and also to prevailing winds. If she brings up directly in the hawse of another ship, or elsewhere in the neighbourhood of another ship, there should be such a distance between them that if either of them drives or parts from her anchors she may have the opportunity to keep clear (y). Where a ship, in bad weather, took up a berth two cables' length to windward of another, in an anchorage where there was plenty of room, and then rode with only one anchor down and that not her best, she was held in fault for a collision with the ship to leeward, against which she (s) Per Dr. Lushington in The (u) The Vivid, 1 Asp. Mar. Law (x) The Princeton, 3 P. D. 90. (y) The Cumberland (Vice - Ad. Court, Lower Canada), Stuart's Rep. (1858), p. 75; The Egyptian, 1 Mar. Law Cas. O. S. 358. was driven when her cable parted in a heavy squall (≈). Article 29. Where a vessel gave another a foul berth, and subsequently drove against her in a hurricane, it was held to be an inevitable accident (a). If a vessel takes up a berth alongside another where she takes the ground and falls over and injures the other, she will be held in fault (b). A vessel voluntarily taking up such a berth in a dock does so at her own risk (c). So where two colliers were beached near each other for the purpose of discharging cargo, it was held that it was the duty of the last comer to moor head and stern, and in such a way as not to foul the other when the wind shifted (d). In coming to an anchor caution must be used not to Coming to injure or embarrass other ships. A vessel rounding-to, so as to bring her head upon tide, should, before altering her helm, look round and see that all is clear, and that her manœuvre will not endanger other ships (e). The omission to warn a ship astern of her intention to bring up has been held neglect of a "precaution required by the special circumstances of the case" (ƒ). A ship, having lost one anchor off Dungeness, in attempting to bring up in the Downs lost her second anchor, and drove foul of another vessel. It was held that, the weather being heavy, she was in fault for attempting, with only one anchor, to bring up ahead of another vessel without the assistance of a tug which she might have taken (g). (2) The Volcano, 2 W. Rob. 337; The Maggie Armstrong and The Blue Bell, 2 Mar. Law Cas. O. S. 318. (a) The Innisfail and The Secret, 35 L. T. N. S. 819. (b) The Indian and The Jessie, 12 L. T. 586; The George and The Lidskjalf, Swab. Adm. 117; The America, 38 Fed. Rep. 256; The Addie Schlaefer, 37 Fed. Rep. 382; The Behera, 6 Fed. Rep. 400. (e) The Patriotto and The Rival, 2 L. T. N. S. 301. (d) The Vivid, 1 Asp. Mar. Law Cas. 601. (e) The Ceres, Swab. Adm. 250; The Shannon, 1 W. Rob. 463; The Philotaxe, 37 L. T. N. S. 540. (f) The Philotaxe, 2 Asp. Mar. Law Cas. 512; and see The Queen Victoria, 7 Asp. Mar. Law Cas. 9; The Helen Keller, 50 Fed. Rep. 142, supra, p. 511. (g) The Annot Lyle, 6 Asp. Mar. Law Cas. 50. an anchor. Article 29. Precautions to be taken when at anchor. In coming to an anchor in a crowded roadstead or harbour, proper care must be used to shorten sail in time, and not to run in at too great speed. A vessel running into Stangate Creek, in the Medway, was held in fault for a collision caused by her running in under too great a press of sail (h). Where a ship delayed taking up her berth until night, and in consequence of the darkness injured another, she was held in fault for not having brought up by daylight, when she might have done so in safety (i). Where, in Hong Kong harbour, a collision might have been avoided if the starboard anchor had been let go, and it could not be let go because it was unshackled, it was held to be negligence not to have had the anchor ready (k). By Art. 14 of the Convention contained in the first schedule to the Sea Fisheries Act, 1883 (46 & 47 Vict. c. 22), it is illegal for a fishing boat to bring up between sunset and sunrise on ground where drift-net fishing is actually going on. This Article applies only in the waters and to the vessels mentioned in the Act (1). After coming to an anchor, those on board must show proper skill and seamanship in keeping their vessel from driving and endangering other craft. If a ship parts from her anchor, when with proper care she might have ridden in safety, and drives against another vessel, the collision will be held to have been caused by the negligence of the former, although after parting from her anchor the collision was inevitable, and all was done that could be done to avoid it. If she drives from her anchor in consequence of her yards not having been sent down, or because she was not tended or made properly snug, she will be held in (h) The Neptune the Second, 1 Dod. 467; The Secret, 1 Asp. Mar. Law Cas. 548; The Earl Spencer, L. R. 4 A. & E. 431; The Masten, Brown, Ad. 436. (i) The Egyptian, 1 Mar. Law Cas. O. S. 358; 1 Moo. P. C. C. (k) The City of Peking, 14 App. Cas. 40. (1) See further, as to this Act, supra, Art. 9. fault (m). Where it is customary and prudent to moor, a vessel neglecting to do so will be held in fault (n); a foul anchor will not excuse her (o). The duty to keep an anchor watch has been already referred to (p). If a vessel at anchor can avoid a collision by the use of her helm, she will be held in fault if, having the opportunity to do so, she does not sheer clear (7); but the proof must be clear that the sheer would have avoided the collision (r). If a ship drives from her anchor or parts her chain, and a collision may be avoided by employing a tug which is available, it is negligence not to employ her (s). Where a ship gave another a foul berth in the Downs, and drove against her in a gale of wind while riding at single anchor with forty-five fathoms of chain, it was held that, although the other vessel drove also, she was herself solely to blame (t). Insufficient ground tackle, or riding by a single anchor when there should have been two down, or failure to drop a second anchor when driving (u), will make a ship liable for a collision so caused (e). A tug in charge of an unwieldy tow of car floats in New York harbour was overpowered by her tow in a heavy squall, and, having let go her anchor, which did not hold, she drove against a third ship. It was held that she was in fault for not having an anchor that would hold her (a). The ship must be duly tended while at anchor. ship which goes foul of (m) The Excelsior, L. R. 2 A. & E. 268; The Christiana, 7 Moo. P. C. C. 160. (n) The Gipsey King, 2 W. Rob. 537. (0) Hastorf v. Mayor, &c., City of New York, 64 Fed. Rep. 869. (p) Supra, p. 540. (9) See supra, p. 38. (r) The Howard B. Peck, 48 Fed. Rep. 334. (s) The Arran, 9 Quebec L. R. 278; and see The Annot Lyle, p. 547, supra. A (t) The Maggie Armstrong v. The Blue Bell, 2 Mar. Law Cas. O. S. 318, 319. (u) The Mary Fraser, 26 Fed. Rep. 872. (v) The Massachusetts, 1 W. Rob. 371; The Despatch, 14 Moo. P. C. C. 83: The Volcano, 2 W. Rob. 337; and see The William Lindsay, L. R. 5 P. C. 338; Allen v. Quebec Warehouse Co., 12 App. Cas. 101. (x) The J. R. Rutter, 35 Fed. Rep. 365. Article 29. |