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“ 5. The state of the weather.
“ 7. The course and speed of the one vessel when the other was first seen..
“ “ 8. The lights, if any, carried by her.
“ 9. The distance and bearing of the other vessel when first seen.
“ 10. The lights, if any, of the other vessel which were first seen.
“ 11. Whether any lights of the other vessel, other than those first seen, came into view before the collision.
“ 12. What measures were taken, and when, to avoid the collision.
“13. The parts of each vessel which first came in contact."
And this document, inclosing these preliminary acts, shall be sealed up, and only opened by order of the judge, after the proofs are filed; unless otherwise agreed by the proctors and sanctioned by the judge.
Since, in collision cases, the controversy is usually one of fact; that is, which party is culpably in fault, and the evidence procurable may be conflicting, as it usually must be, and so the real occasion or cause of collision may be thereby rendered uncertain or even inscrutable, the rule, adopted by Dr. Lushington in 1859, above cited, may be suggestive to any official desiring to secure the rights of innocent parties against offending or wrong-doing parties. At this present writing (January 12, 1863), the author has observed a movement in the United States Congress to provide additional rules to prevent maritime collisions — and it is not inopportune. Vide Appendix F.
The commerce of the world is constantly increasing,
as well as the amount of tonnage invested in ships. Almost every day adds another sailing or steam seagoing vessel to our navy or merchant marine; our lakes and inland waters and rivers are being incessantly traversed by vessels propelled by wind or steam. The danger of damage, therefore, from collision, is becoming gradually greater and the security against danger less. It is proper, then, that all in public station should exercise the utmost vigilance in providing the necessary preventive measures to protect the mercantile and shipping interest in this respect. Vide United States Laws, ch. 59, 1864.
A strict compliance with the recognized rules of navigation should be generally enforced; and if it be found, by experience, that additional rules are needful, they should, by competent authority, at once become a part of the laws of the sea. If existing rules are found imperfect or inadequate, to effect the security designed to commerce, then they should be modified accordingly.
Whether the American courts have rules sufficient to meet the marine exigencies of the times or not, it is, at all events, quite clear, that, in this respect, England is somewhat in advance of the United States in framing special rules for signal lights and requiring the use of horns, bells, and steam whistles for fog signals, and the exhibition of white lights, between sunrise and sunset, by sea-going vessels when at anchor in roadsteads and fairways. But vide Appendix G.
There are some existing rules of navigation which ought not always, however, to be strictly complied with, nor, under all circumstances, rigidly enforced. Something, after all, must necessarily be left to the nautical judgment and caution of a skillful navigator, to act as eircumstances may require.
Thus, when vessels meet on different tacks, and there is danger of collision by continuing their respective courses, the rule is that one shall port her helm.. This is well generally, but not invariably prudent: for suppose the vessels to meet in a fog, and are almost aboard of each other, before their presence or proximity is known; if both port their helm, they may strike right dead ahead, and not only collision but inevitable destruction to both may be the consequence. Whereas, if one should luff or go in stays and the other bear away or wear, a collision may thereby be avoided. In this condition, it may be essential, to avoid collision, that the vessel that luffs should come right up in the wind's eye, until the helmsman, who “cuns the ship,” sees the sails shivering in the wind. Some discretion is vital to good nautical management.
Many other cases may be supposed, where a strict literal compliance with any specific prescribed rules would result in disaster; and yet some skillful manouvre in the management of the ship by a cool, collected and prudent navigator, if permitted to exercise his nautical skill, might avoid both disaster and danger
The law, therefore, very properly confides much to the discretion of experienced ship-masters as well as skillful pilots. 1 Sprague, 221.
Hence the importance of calling upon the aid of Trinity Masters by the court or nautical assessors, by the committee of the Privy Council in England, and experienced and expert seamen in this country, to assist the courts in weighing the evidence, and enabling them to lay the blame, in cases of collision, where it rightfully belongs.
In 1 Sprague, 219, it was declared to be the established
rule to divide the damage, where both parties were in fault, negligent, or otherwise blamable. Allen et al. v. Mackay et al.: and generally in such cases the costs will be divided also. Yet, in The London, Browning and Lush. 82, the court held and will occasionally exercise a discretionary power to condemn the plaintiff in costs.
Several recent cases of collision, where both were to blame, are collected and here cited for the convenience of the student. The Steamboat Boston, Olc. 407; Brig Rival, 1 Sprague, 128; Lennox v. Winnisimmet Co., ibid. 160; 2 Sprague, 17, Marcia Trebon ; ibid. 52, O'Neil v. Sears; 1 Spinks, 91, Carron ; ibid. 96, Aliwell ; ibid. 269,
; Wansfell ; Swabey, 28, Calypso; ibid. 55, James; ibid.
; 306, Lind; and in Lush. 388, Milan ; Brown. and Lush. 287, Great Eastern; also two cases of inevitable accident, The Peerless, Lush. 30, and The London, Brown. and Lush. 82.
The Catalina, 2 Spinks, 23. A Dutch and Spanish vessel came into collision. The Spanish crew boarded the other vessel, and behaved with great violence. The court deemed the Dutch vessel to blame for the collision, and pronounced for the Spaniard ; but gave no costs, on account of the subsequent misconduct of the Spanish crew; thus reserving, as in The London, Brown. and Lush. 82, a discretionary power to award or withhold costs, in poenam, as may be required.
Several other cases may be found in Brown, and Lushington of general importance: as The Europa, p. 89, where it was held, that a maritime lien may be lost by lapse of time and laches. In The Faulkland and Navigator, p. 204, it was held that wearing was unusual without good cause, and a vessel, sailing on the wind, should tack, and not wear without sufficient sea-room.
SALVAGE is a claim for compensation, or rather a reward for services substantially and essentially maritime, voluntarily rendered, and resulting in success. So that salvage services are characterized by three qualities or ingredients, as attending them, which must distinguish them intrinsically from other labor or service. Technically such services, therefore, must be maritime, voluntary, and successful.
When a suit for a claim of this kind is promoted in admiralty, the proceedings should be commenced, according to the directions to be found in the nineteenth rule of the “ Rules of Practice in Admiralty," as adopted by the United States Supreme Court in 1845. That rule is as follows:
“ In all suits for salvage, the suit may be in rem against the property saved, or the proceeds thereof; or in per. sonam, against the party at whose request and for whose benefit the salvage service has been performed.”
Formerly, the master, in his own name, but in behalf of himself, owners, mariners, and all known to be interested in the salvage claim, instituted proceedings in rem against the salved property; and afterward others, for
? cause, might become parties by petition to the court, before any final decree had been made.