2

Sec. 89. Duty of sailing-vessel-Holding its course.-The international rule of 1885 provides that "where by the above rules one of two ships is to keep out of the way, the other shall keep her course." The 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." It is one of the fundamental rules of the sea, observed by admiralty courts ever since the adaptation of steam as a motive power for ships, which the statute recog nizes, that where a sailing-vessel and a steamer are proceeding in a direction that may involve collision, the duty of the former is to hold its course, while the latter keeps out of its way. The duty imposed by the statute upon a sailingvessel to hold its course is reciprocal to that imposed upon a steamer to keep out of its way; the observance of the rule is no more strictly required of one than of the other. The duty of a sailing-vessel to hold its course and do nothing to embarrass the other in keeping out of its way is as strictly enforced as is the obligation of the other. The requirements of the rule are more in the nature of a burden imposed upon a sailing-vessel - a method of action to be strictly followed — than a privilege conferred upon it. The rule creates a mutual obligation, whereby the sailing-vessel is required to hold its course in order that the other may know its position and not be led into erroneous maneuvers in endeavoring to comply with the requirements of the statute; and that there may be no misunderstanding or confusion resulting from mutual endeavors to avoid each other,3 the rule is imperative and admits of no option or choice.

in not slackening speed, until the course of the sailing-vessel was ascertained for a certainty, and in not reversing after approaching so near as to render collision imminent. The State of California, 49 Fed. R. 172.

123 U. S. Stat. at L. 442, art. 22. 226 U. S. Stat. at L. 320, art. 21;

Rule 20 for the navigation of the
Great Lakes; The Philadelphian,
61 Fed. R. 862; The Brinton, 59
Fed. R. 714; The Circassia, 55 Fed.
R. 113.

3 New York, etc. S. S. Co. v. Rumball, 21 How. 372; The Nessmore, 41 Fed. R. 437; The Golden Grove, 13 Fed. R. 700.

A sailing-vessel has no right to act at its own discretion as to whether it will hold its course or not, where there is nothing to prevent its doing so. If the sailing rules could be avoided or modified according to the caprice of every navigator they would be worse than useless. They yield only to actual and obvious necessity, and nothing but obsolute peril will excuse a sailing-vessel for not holding its course when sufficiently near a steamer to be in risk of collision. Whether the steamer can safely keep away, and how it is to do so; whether it is safer to pass on one side than on another, are questions the sailing-vessel is not permitted to decide under ordinary circumstances. And it is in order that the steamer may not be deprived of the means of wisely determining upon what its conduct shall be, that the rule requires the sailing-vessel to keep its course, and permits it to adopt such measures of precaution as it may deem best suited to the exigencies of the occasion.1

Although the primary duty of acting is placed upon the steamer, the other is under no less an obligation, and the steamer may presume, and it is its duty to assume, that the other will comply with the requirements of the law, and in shaping its course it is not bound to wait and see that it does so. This rule like all others is not to be so strictly construed as to forbid variations in the course of a vessel necessary to enable it to avoid immediate danger, or the natural obstructions of navigation, and does not apply after

1 The Fannie, 11 Wall. 238; The Oregon v. Racco, 18 How. 570; The R. R. Forbes, 1 Spra. 328; The Falcon, 19 Wall. 75; The Narragansett, Olc. Adm. 246.

2 Sanders v. The Santee, 48 Fed. R. 126; The Free State, 1 Otto, 200; The Nichols, 7 Wall. 656; The Scotia, 14 Wall. 170; The Cadiz, 20 Fed. R. 157; The Illinois, 103 U. S. 298.

Where a steamer and a sailingvessel were going in the same di

rection through a narrow channel, and the steamer did not keep away, relying on the sailing-vessel to come about on another tack, enabling her thereby to pass astern, the court held that it was the duty of the steamer to presume that the sailing-vessel would perform its duty and run out her tack, and that it should have governed itself accordingly. The Bridgeport, 6 Blatch. 3.

the approach is so near as to render collision inevitable.1 Where a steamer is so situated that it cannot give way or avoid the other without peril, the sailing-vessel is bound to do so if it can be done with safety, although it is not bound to run into danger or incur probable injury by so doing. Where a sailing-vessel persists in its course, knowing the embarrassed situation of the other, it cannot recover for damages sustained, unless the prior negligence of the steamer in running into the embarrassing situation is such as to render it liable; and even where the steamer is primarily at fault in not keeping at a sufficient distance, the sailing-vessel is not justified in holding its course so persistently as to make collision probable, or so as to force the steamer into a dangerous situation, if it can avoid it without danger to itself. While the law is strict in requiring a steamer to keep out of the way of a sailing-vessel, it is no less so in requiring the latter to also comply with the statute, and afford the other every opportunity of keeping away that good seamanship and ordinary prudence suggests. If it neglect to do so, and through this neglect collision occurs, it is liable and must bear the whole or its share of the loss, as its fault is the whole or partial cause of the loss.

As before stated, the rule requiring a steamer to keep out of the way is based upon its freedom of movement and ability to keep away. When, however, the conditions are reversed, and the sailing-vessel is placed in a situation where the control of its movements is superior to those of a steamer, and the inability of the steamer to act is apparent, the case is exceptional, and falls within the rule requiring all vessels to be governed by the special necessities of the case; and it is the duty of the sailing-vessel to shape its maneuvers to avoid

1 The John L. Hasbrouck, 93 U. S. 405; The Fairbanks, 9 Wall. 420; The Western Metropolis, 6 Blatch. 210; The City of New York, 1 Cliff. 75; Peck v. Sanderson, 17 How. 178.

2 The Pilot, 1 Biss. 159.

3 The Cornelius Vanderbilt, Abb. Adm. 361.

4 The Golden Grove, 13 Fed. R. 674; The Lizzie Henderson, 20 Fed. R. 524.

the other, even though it may necessitate a complete change of course. A sailing-vessel, however, has the right to rely upon the ability of a steamer to keep out of the way, and upon the skill and competency of its master and crew to do So, and upon their disposition to obey the law, until the contrary appears, and until then it is its duty to hold its course.? When a steamer permits itself to approach so near a sailingvessel that the alarm and confusion incident to such proximity results in a mistaken maneuver on its part, whereby collision ensues, the steamer is not absolved from blame by such mistake of the other, but is held accountable for the error in permitting itself to approach within such dangerous nearness; an error of judgment in a movement of peril not being sufficient to charge it with misconduct, where the impending danger is brought about by the unlawful conduct of the steamer. All that is required of a sailing-vessel under such circumstances is that it act with reasonable skill and judgment in view of all its surroundings.3

The reasons which re

Sec. 90. Beating out its course.quire a sailing-vessel to hold its course when approaching a steamer require it to beat out its tack, where the latter has shaped its course to conform with such continuance, and where by a change of tack they would be brought into dangerous relations. The rule, however, is not so strict as to require the sailing-vessel to beat out its course, where by reason of obstructions, adverse currents, tides or other natural disadvantages it is impracticable to do so, nor where grounding, shipwreck or other danger would be incurred if the course be pursued. Having finished its tack, it is its

1 The Rose Caulkin, 52 Fed. R. 328; The Pilot, 1 Biss. 159; The Cornelius Vanderbilt, Abb. Adm. 361. 2 The Renovator, 30 Fed. R. 194. The Lucille, 15 Wall. 676; Farr v. The Farnley, 1 Fed. R. 631; The Relief, 63 Fed. R. 169.

4 The A. W. Thompson, 39 Fed. R.

115; The Illinois, 103 U. S. 298; The Philadelphian, 61 Fed. R. 862.

5 Irons v. The Coe F. Young, 45 Fed. R. 505; 49 Fed. R. 167; The John L. Hasbrouck, 93 U. S. 405; The Clara Davidson v. The Virginia, 24 Fed. R. 763.

Where a tug in a narrow chan

duty to come about as quickly as possible upon the other tack. It is not required to remain in stays to enable a steamer to pass when it has sufficient room to get out of the way, especially where by so doing it would be subjected to danger. Every vessel is bound to know the character of the waters it is navigating, and to shape its actions so as to conform to the probable actions of another in her vicinity, resulting from the known peculiarities of the place; and where a sailing-vessel changes its course because of wellknown obstructions, a steamer navigating in close proximity is bound to foresee what movements the necessity of the situation imposes upon it and to shape its own actions to correspond.2

Sec. 91. Change of course.-A sailing-vessel departing from its course when it should have maintained it is liable for the results following such change, if it contributes to

nel maintained a course on the chance that a sailing-vessel beating, in plain sight of it, which it was in duty bound to avoid, would break its tack and come about, it was held liable for not keeping out of the way, knowing it to be the duty of the vessel to beat out its tack.

1 Whitney v. The Empire State, 1 Ben. 57; The W. C. Redfield, 4 Ben. 227; The Bridgeport, 6 Blatch. 3; The Mary Ann, 11 Fed. R. 336.

Where a sailing-vessel and a steamer were proceeding in opposite directions on crossing courses, the steamer held its course and neglected to get out of the way, believing it impossible for her to continue her tack, and that it could come about and enable the steamer to pass in safety. Collision ensuing, it was held that the steamer was liable, and had no

right to rely upon the inability of the other to sail out its tack, unless the obstacles to prevent were palpable and apparent. The Washington Irving, Abb. Adm. 336.

In the case of The Nevada, 3 Fed. R. 928, a sailing-vessel was beating up East river, and, standing over towards the New York shore, crossed the course of the steamer Nevada. Instead of holding its course well over to the New York shore it came about in the vicinity of the steamer, and collision followed; the reason given for not holding its course was that an eddy ahead made it imprudent to do so. Held, that the eddy was not such a danger as warranted the sailing-vessel in abandoning her course when sufficiently near another to render collision liable. 2 The D. S. Stetson, 4 Ben. 508.