sea-going vessels, and not embraced within the Great Lakes and tributary waters, the above rule is still in force. Upon the high seas, under the international rules as they now are, the burden of acting when both are sailing-vessels is upon one-the one whose situation is best calculated to aid her in maneuvering; as, where two sailing-vessels meet end on, or nearly end on, it is the duty of the one having the wind on the port side to fall off and give way to the other if both are sailing close-hauled, or, if both are sailing with the wind free, the same action is necessary; while under the old rule, still prevailing upon the minor lakes and inland I waters, where two vessels meet end on, or nearly end on, it is the duty of both to put their helm to port and pass to the right, it being the duty of both to act instead of only one. Sailing-vessels are meeting "end on" when they are approaching each other from opposite directions or on parallel lines so as to involve risk of collision on account of their proximity. Vessels are not "end on" when, if both keep their respective courses, they will pass clear of each other. They are meeting end on when by day each vessel sees the masts of the other in a line or nearly in a line with her own, and when at night each vessel is in a position to see both of the other's side-lights.2 seen by the 1The Nichols, 7 Wall. 656; The sighted and was Farnley, 8 Fed. R. 629; The Dexter, schooner M., headed north by west. 23 Wall. 69. With the wind free the M. put her The rule that it is the duty of helm hard aport and let go her vessels to port the helm does not main sheet, swinging six or seven apply in a case where they are ap- points to starboard. When the vesproaching in opposite directions in sels were five or six lengths apart straight courses which lie to the the L. starboarded and swung to starboard of each other with suffi- port until she was across the bows cient berth to exclude the possi- of the M. It was held that, whether bility of coming together. The At- the vessels were approaching end lantic, 1 Newb. 139. on or on converging lines, the L. 2 About 1 o'clock of a clear morn- should not have starboarded, and ing on Lake Michigan the schooner was charged with the collision. L, close-hauled on the starboard Larsen v. The Myrtle, 44 Fed. R. tack, headed south one-half west, 779. Sec. 60. Change of course.-The international rules of 1890 provide that "where, by any of these rules, one of two vessels is to keep out of the way, the other shall keep her course and speed." The international rules of 1885 are that where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course." 2 66 The rule for the Great Lakes is the same as the international rule of 1890. It will be observed that the rule of 1890 is different from the rule of 1885 in this respect: that under the former a vessel is not only required to keep her course, but her speed also; under the rule of 1885 there is no statutory requirement for a vessel to maintain her speed, although the general maritime law of the sea and good seamanship would require this to be done in situations where a change of speed would mislead the vessel whose duty it is to keep away, so that the new rule may be considered to be declarative of the general law. The duties imposed upon vessels are of a mutual character; and where the statute directs one to give way to the other, it imposes an equal duty upon the latter to continue on its course, and a change of course on its part is as unlawful as it would be for the other to refuse to yield the right of way. A vessel on the wind has the right to the last moment to rely on the ability and care of the other with the wind free to avoid her, and she is bound to keep her course and not to interfere with the other in the performance of its duty to avoid her, and for neglect to do this she is liable in damages.5 Luffing as close as possible to the wind is not of itself such a deviation from the course of a vessel as will render her liable for colliding with one whose duty it is to keep 126 U. S. Stat. at L. 320, art. 21; The I. C. Harris, 29 Fed. Rep. 926. 223 U. S. Stat. at L. 442, art. 22. 3 Rule 20 of the act approved Feb ruary 8, 1895. Page 72. New York & Liverpool S. S. Co. v. Rumball, 21 How. 372. 5 The Argus, Olc. Adm. 304; The John Stewart, 4 Blatch. 444; The Richard Higgins, 1 Low. 290; The 4 The Nacooche, 22 Fed. R. 855; Catherine v. Dickinson, 17 How. 170, 176. off; but where a vessel unnecessarily luffs to such an extent that it becomes a substantial change of course, she will be held in fault." It is one of the conditions of the duty "to keep out of the way," that the other vessel shall act intelligently, and afford reasonable evidence of her intentions; while it is doubtful what the other will do, the former should hold her course. Like all other rules for the prevention of collisions at sea, there may be special circumstances which would warrant a ship in departing from her course, where collision appears inevitable by pursuing it; indeed, it is her duty to do so; but until it plainly appears that there is no other alternative, a vessel should hold her course when in a position required to do so by the statute. In crowded channels or harbors, where the vessels to be met with are much more numerous than on the open seas, the rule in regard to a sailing-vessel holding her course cannot be followed with the same degree of strictness as on open waters. In all cases, however, where a sailing-vessel seeks to justify for not holding her course, the obligation rests upon her to show sufficient excuse for not complying with the rule; and in justifying her departure from this rule, she assumes the burden 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 prescribed by her was reasonably calculated to avoid that danger, and one that an ordinarily skilful navigator would pursue under like circumstances." The Amelia, 29 L. T. (N. S.) 118. 2 The Ella Warner, 30 Fed. R. 203; The North Star, 29 Fed. R. 151; The Columbia, 25 Fed. R. 844; Scotts Greys v. The Santiago, 5 Fed. R. 369; The Britannia, 34 Fed. R. 552; McWilliams v. The Vim, 12 Fed. R. 906; The John L. Hasbrouck, 93 U. S. 405. The B. C. Terry, 30 Fed. R. 711; The Gypsum Prince, 57 Fed. R. 859. 4 The C. C. Vanderbilt, 1 Abb. Adm. 361; The Maggie J. Smith v. Walker, 123 U. S. 349. 5 The C. C. Vanderbilt, 1 Abb. Adm. 361. 6 The Gratitude v. The Eutaw, 14 Fed. R. 479; The Elizabeth Jones, 112 U. S. 514. 7 The Richard R. Higgins, 1 Low. (U. S.) 290. A change of course in extremis is not negligence,' and will not impair the right to recover for the injuries resulting from a collision, if the vessel is otherwise without fault." Even though the maneuvering may be a mistake, it is not sufficient to render the vessel liable, if the change of course was made to avoid impending collision.3 1 The Eliza S. Potter, 35 Fed. R. 220; Waldorf v. The New York, 1 Flip. 49. 2 The Fairbanks, 9 Wall. 420; The Western Metropolis, 6 Blatch. 210; Baker v. Steamship City of New York, 1 Cliff. 75; The Belle, 1 Ben. 317; The Jupiter, 1 Ben. 536; Bentley v. Coyne, 4 Wall. 509. 3 The Havilah, 33 Fed. R. 875; The City of Paris, 1 Ben. 529; The Jupiter, 1 Ben. 536; The Rumball, 21 How. 372. In the case of The Ella Warner, 30 Fed. R. 203, it was held that where a collision was caused by a luff on the part of a schooner whose duty it was to keep her course, being close-hauled, meeting a ship sailing free, the close-hauled ship was liable to damages for not having shown that the change of course was done to avoid immediate collision. Where two schooners, the P. and the R., were sailing on the same tack in the East river, the overtaking vessel sailing a little faster and a little closer to the wind than the other, it was held that it was the duty of the leading vessel to hold her course and that the overtaking vessel should keep off to leeward. Failing in this she was held liable in damages. The rules require both vessels to give way in the presence of im mediate danger. The danger must, however, be immediate and near at hand to warrant a change of course. The Warren, 18 Fed. R. 559; The Golden Grove, 13 Fed. R. 700. The exception to the general rule that a sailing-vessel must keep her course cannot be allowed except when it is entirely clear not only that by changing her course she would in fact have avoided the collision, but that under the circumstances of the moment, as they appeared to the sailing-vessel, that this means of escape was so obvious to one of ordinary nautical judgment that it was clear negligence to omit it. The burden of proof is on the vessel violating the rule requiring her to hold her course, and she must show by a preponderance of the evidence that the movement was made to avoid impending peril, and was such as a reasonably prudent seaman would adopt under the circumstances. The Tracy J. Bronson, 3 Ben. 341; The Frank P. Lee, 30 Fed. R. 277; The Mina A. Reade, 30 Fed. R. 205; The B. C. Terry, 30 Fed. R. 711; The Martha Bruner, 27 Fed. R. 513. Where a collision was caused by a change of course when the vessel should have held her own, it was held liable for the resulting dam Sec. 61. Overtaking vessels. The international rules of 1890 provide that, "notwithstanding anything contained in these rules, every vessel overtaking any other shall keep out of the way of the overtaken vessel. 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 vessel's side-lights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between 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 overtaken vessel until she is finally past and clear. As by day the overtaking vessel cannot always know with certainty whether she is forward of or abaft this direction from the other vessel, she should, if in doubt, assume that she is an overtaking vessel and keep out of the way."1 The international rules of 1885 provide that, "notwithstanding anything contained in any preceding article, every ship, whether a sailing-ship or a steamship, overtaking any ages. Rogers v. The S. B. Wheeler, 4 Cliff. 189; The Johanne Auguste, 21 Fed. R. 134; The Freddie L. Porter, 8 Fed. R. 170; The Wesley Seymour, 7 Ben. 539; The Nahor, 9 Fed. R. 213; The Pride of the Ocean, 10 Ben. 610; The Negaunee, 20 Fed. R. 918; The North Star, 29 Fed. R. 151; The Cambusdoon, 30 Fed. R. 704. Where two vessels are approaching at night under such circumstances that one of them is bound to keep out of the way of the other, and the former alters her course so as to cross the course of the other, very great allowance should be made to the one whose duty it is to avoid the other for thus suddenly being placed in dif ficult circumstances by the wrongful act of the other. The Tasmania, L. R. 15 App. Cas. 223; The Pangussett, 9 Fed. R. 109. A vessel approaching another is bound to pursue a consistent and steady course, and not to embarrass or confuse the other by unnecessary changes of course. The Jay Gould, 19 Fed. R. 765. A sailing-vessel beating in a channel is not obliged to run out her tacks to her disadvantage in a tide or current, providing she does not mislead or embarrass other vessels that are required to avoid her. Irons v. The Coe F. Young, 45 Fed. R. 505. 126 U. S. Stat. at L. 320, art. 24; The Aurania, 29 Fed. R. 104. |