CHAPTER XIV. THE REGULATIONS FOR PREVENTING COLLISIONS AT SEA. the road. MANY years before the rule of the road at sea was regu- Legislation as lated by Act of Parliament, the practice of seamen had 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 a century earlier. In the Duke of York's Sailing and Fighting Instructions, attributed to the year 1670, but probably of a later date, occurs the following article:-" Where two ships of the same rank are sailing on the same tack, or on contrary tacks, and there is a necessity for one of them to bear up to the other, he that can with the most convenience bear up is to do it; but if it be equally convenient to both of them, then the younger captain shall bear up for the elder." If the rule as to the ship on the port tack giving way had been generally recognized when this regulation was framed, it would probably have been mentioned. In several collision cases decided by the Admiralty Court during the 17th and 18th centuries, the writer has found no trace of the rule in the pleadings, decrees, or sentences. See Marsden's Admiralty Cases, p. 333, as to the origin of the port tack rule. In The Resolution (ibid. p. 332) (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 (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 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 three successive Acts of Parliament (d). The only Act now in force is 25 & 26 Vict. c. 63. By that Act (s. 25), power is given to her Majesty, Regulations. upon the joint recommendation of the Admiralty and the Board of Trade, by Order in Council, to make Regulations for Preventing Collisions. By s. 58, such Regulations are to apply to British ships everywhere, and to foreign ships when within British jurisdiction. By s. 59, the Queen is enabled with the consent of the foreign government by Order in Council to apply the Regulations to foreign ships when not within British jurisdiction. Under these powers, the Regulations of 1884 have been made and applied to the ships of Great Britain, France, Greece, Portugal, Italy, Sweden, Norway, Brazil, Turkey, Chili, and Denmark (e). in The Dundee, reported in the In the year 1828, the rule of the rule, she ought to expect that the (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. These Acts and Orders will be found in the Appendix below, pp. 531, seq. (e) By Orders in Council of the following dates:-14th Aug. 1879; 2nd Feb. 1884; 11th Aug. 1884; 9th Oct. 1884; 30th Dec. 1884; 19th May, 1885 (Sweden, Norway, and Brazil); 9th July, 1885 (Turkey); 17th Sep. 1885 (Chili); 17th Nov. 1888 (Denmark). 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 (ƒ). 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 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 (f) Previous Regulations made under the same Act were those contained in the Schedule (Table C.) to the Act; also those contained in Orders in Council of 9th January, 1863, and 30th July, 1868. The Regulations of 1863, and of 1868, were repealed by Order in Council of 14th Aug. 1879 as to all ships. Those made by Order in Council of 14th Aug. 1879 (which came into force on 1st Jan. 1880, and are hereinafter called the Regulations of 1880), were repealed as to British, French, Greek, Portugese, Italian, Norwegian, Turkish, and Chilian and Danish ships, by the Orders in Council above mentioned. It will be observed that the Regulations of 1884, though they apply to British ships everywhere, and to foreign ships within British jurisdiction, do not apply to the ships of all maritime states. To the ships of those states who consented to be bound by the Regula tions of 1880, and have not assented For a curious account of the Whether Regulations directed to other objects than preventing collision are authorized by 25 & 26 Vict. c. 63. In what waters they apply. without the territorial waters. By Arts. 5 and 6 of the It has been said that the object of the existing Regulations is not only to prevent collisions, but to minimise their effect (g). It is not clear that 25 & 26 Vict. c. 63, enables her Majesty 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. And it will be observed that it seems to be assumed in the Act (sect. 57) that Regulations "relating to collisions" may be made under its powers. But it may well be doubted whether an enactment, such as Art. 27 of the existing Regulations (of 1884), directed to an entirely different object-namely, the signals to be used by ships in distress-is authorized by the Act. The Regulations are headed "for preventing collisions at sea," and appear to be expressly binding only on ships at sea (h). But, except in waters where local rules, incon (g) See per Lord Watson in The Voorwaarts and The Khedive, 5 App. Cas. 876, 903, 904; and see Maclaren v. Compagnie Francaise de Navigation à Vapeur, 9 App. Cas. 640, 651, 652. (h) 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 sistent with the sea Regulations, are in force, it would probably be held that vessels are required to navigate in accordance with the sea 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 words of Art. 25 seem to imply that, except in the cases there mentioned, they apply everywhere. The operation of Art. 21 (the starboard side rule) is certainly not confined to narrow channels "at sea" (k). On the sea, everywhere, except where inconsistent (1) local rules are in force, they are directly applicable (m). Their application in winding rivers and in waters where local rules are in force is considered below under Arts. 21 and 25 (pp. 462, 465). In a recent case in Scotland the Regulations were held to apply in the river Clyde. Notwithstanding the existence of local rules of navigation applicable to the Clyde, a steamship was held in fault for disobedience to Arts. 13 and 18 of the Regulations of 1863 (n). From this decision it appears that in Scotland the Regulations are held to be applicable in rivers, as well as at sea, and that where 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. The Washington Conference Regulations are to be applicable to "all vessels upon the high seas, and in all waters connected therewith, navigable by seagoing vessels." (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. (k) See The Leverington, 11 P. D. 117. (1) 43 Vict. c. 29 (Canada), s. 4, makes void local rules which are inconsistent with the regulations. (m) See The Saxonia, Lush. 410, as to the application of a former Act to foreign ships in the Solent. (n) Little v. Burns, The Owl and The Ariadne, 9 Sess. Ca. 4th ser. 118. |