A river being a public thoroughfare must as a rule be kept open and free from danger for all ships navigating thereon. When a ship, therefore, is about to be launched, those in charge of the launch are bound to give customary notice, and if there is no custom then reasonable notice.1

The right to recover for a loss by collision does not cease by an abandonment to the underwriters.2

SECTION II.

RULES OF NAVIGATION.

The rules of navigation may be conveniently divided into three classes. 1st. Those relating to lights. 2d. Those relating to fog signals; and 3d. Those relating to the steering of the vessel, and the precautions to be observed on approaching another vessel. We propose to treat of these under separate heads, to consider what the rule of the maritime law is, and then the changes that have been made by statutes in this country and in England, here merely stating that the statutes which now regulate the matter in this country are the acts of 18643 and 1867,4 and the rules established in accordance with an act passed in 1852,5 so far as these are not in conflict with the act of 1864.6

The first article of the act of 1864 is a general one, applicable alike to the three divisions above mentioned, and we shall therefore state it first.

Article I. In the following rules every steamship which is under sail, and not under steam, is to be considered a sailing ship; and every steamship which is under steam, whether under sail or not, is to be considered a ship under steam.

We shall see that, under the Trinity House Rules of 1840, a steamer with a vessel in tow is not considered by the court

1 The Vianna, Swabey, Adm. 405.

2 Newell v. Norton, 3 Wallace, 267.

Act of 1864, c. 69, 13 U. S. Stats. at Large, 58.

Act of 1867, c. 83, 14 U. S. Stats. at Large, 411.

Act of 1852, c. 106, 10 U. S. Stats. at Large, 72. The rules mentioned will be stated hereafter.

• See act of 1867, supra.

as standing in the same light towards a sailing vessel as a steamer unincumbered.1 It seems to be supposed by one writer that as the present rules make no distinction in terms between a steamer towing and one unincumbered, the present statute has changed the law in this respect.2 However the rule may be in England, in this country a steamer with a vessel in tow would probably be considered as standing on the same footing as any other steamer, for such is held to be the maritime law in this country.3

1. Lights.

By the maritime law there was no regularly established rule that vessels should carry lights. In England in 1848, the Lords of the

1 See post, p. 584, n. 1.

• Lowndes, Law of Collisions, 43. See also The David Cannon, Holt, 235.

' New York Transp. Co. v. Philadelphia Steam Nav. Co. 22 How. 461.

4

By the maritime law whether a vessel should have a light or not, was generally a question of fact, to be decided by all the evidence in each particular case, whether the omission of a light constituted negligence. Thus Dr. Lushington, in The Rose, 2 W. Rob. 4, said: "It has been discussed over and over again in former cases of this kind, and I believe there is no occasion in which it has been laid down as a general principle that merchant vessels ought constantly to carry lights. Under certain circumstances undoubtedly it may be right and expedient to do so." Similar language is used by him in the case of The Swea, 4 Notes of Cases, 97, note; and in that of The Sarah, 4 Notes of Cases, 98, note. He cited and affirmed the above also in The Iron Duke, 2 W. Rob. 377. In this case a large steamer, on a dark night, in a part of the channel constantly navigated by vessels, ran into and sunk a brig. The latter had no lights. It was held that she was not bound to carry lights, and that the steamer was to blame in going at full speed on such a night in such a locality. The decision seems hardly consistent with that of The Victoria, decided by the learned judge a few years later, and reported in 3 W. Rob. 49. In that case a vessel at anchor without a light was run into. Dr. Lushington, addressing the Trinity Masters, said: "If you are of opinion that the carrying and exhibiting such a light would have tended to prevent the collision, I cannot but think that it was a duty imposed upon him to have done so, and for this reason, that all persons are bound to take due and proper care to avoid an accident, and no man can justly complain of an accident that happens to himself, if by reasonable care and proper precaution he could have prevented it." The Trinity Masters were of opinion that, looking to the period of the year, the state of the night, and the number of vessels likely to be in the neighborhood of her, it was her duty, under such a combination of circumstances, to have had a light burning. In The Saxonia, in P. C., Lush. Adm. 410, a case which was decided by the principles of the maritime law, the court speaking of a sailing vessel under way said: "She is nevertheless bound to show some proper

Admiralty directed that government steamships should, between sunset and sunrise, carry a bright white light at the foremast and sufficient light, in sufficient time to enable the steamship, or other vessel whose duty it is to give way, to avoid any collision. No blame can attach to any vessel for running foul of another vessel, if it has been impossible to distinguish it until the collision was inevitable. This is not a question of green or red light, but of no light at all. . . . . It cannot be admitted as any excuse for this omission that several hours previously, and owing to severe weather, the glass had got broken and the light extinguished, or so dimmed as to be indiscernible at any distance, and we concur in the opinion of the learned judge of the admiralty court that she cannot recover against another vessel if, in consequence of that misfortune, she gave the other vessel no means of seeing her in reasonable time to avoid her." See also The Olivia, Lush. Adm. 497, where it was held that by the maritime law a fishing vessel was bound to show a light to a vessel approaching. In The Clyde, 2 Spinks, Adm. 27, the master of a vessel without lights saw a light, but did not know whether it was a light on shore or not, for some time. As soon as it was ascertained what the light was, he showed a light. Held, he was not in fault. See also The Scioto, Daveis, 359; Lenox v. Winisimmet Co. 1 Sprague, 160. In Kelly v. Cunningham, 1 Calif. 365, it was held that if ordinary prudence required a vessel, lying in the roadstead of San Francisco, to carry a light, a general custom for vessels in the harbor to neglect to do so was no excuse. See also Innis v. Steamer Senator, 1 Calif. 459. And in The Indiana, Abbott, Adm. 330, and Hain v. Steamboat North America, U. S. D. C. South. Dist. of N. Y., 2 N. Y. Leg. Obs. 67, it was held that a vessel at anchor in the harbor, or in a navigable river, must show a light. See also Rogers v. Steamer St. Charles, 19 How. 108. In this case the light had been taken down just previous to the collision, in order that the water which had collected on the glass globe might be wiped off. The vessel was nevertheless held to be in fault. In Carsley v. White, 21 Pick. 254, the court instructed the jury that whether the plaintiffs ought to have had a light or not, depended on all the circumstances of the case. The vessel was lying in the harbor of Provincetown. See also The New Haven Steamboat Co. v. Vanderbilt, 16 Conn. 420, 429. It was also held in The Santa Claus, 1 Blatchf. C. C. 370, that, where a vessel on a dark night, the weather being thick and cloudy, carried but one light, and thereby led those on board of another vessel to suppose that she was at anchor, and a collision consequently took place, the vessel was guilty of negligence. The necessity of having a light was strongly enforced by Mr. Justice Grier, in the case of The Barque Delaware v. Steamer Osprey, 2 Wallace, C. C. 268, 275, 1 Am. Law Reg. 15. The Osprey ran into the barque Delaware; the steamer had lights but the barque had not. Mr. Justice Grier said: “The court cannot establish any rule to bind vessels navigating the high seas, after night, to carry signal lights; but when one party does this, and the other does not, we can and will treat (in a case cæteris paribus) the dark boat as the wrongdoer." And Judge Kane, in the same case, said: "I should be very glad to follow in the wake of the first admiralty judge, who would hold the absence of a properly placed and well-trimmed lantern to be primâ facie evidence of a culpable want of caution." See also Jacobsen's Sea Laws, 310. Gibson, C. J. in

head, a green light on the starboard bow, and a red light on the port bow. It was also recommended that all other steamers should Simpson v. Hand, 6 Whart. 311, 324, said: "Indeed, the hoisting of a light is a precaution so imperiously demanded by prudence, that I know not how the omission of it could be qualified by circumstances any more than could the leaving of a crate of china in the track of a railroad car, or how it could be considered otherwise than as negligence per se." See also The Oratava, 5 Month. Law Mag. 45; The Columbine, 2 W. Rob. 27, 33; Steamboat Blue Wing v. Buckner, 12 B. Mon. 246; Ward v. Armstrong, 14 Ill. 283. In Culbertson v. Shaw, 18 How. 584, Mr. Justice McLean states the law as follows: "Where a boat is anchored in the path of vessels, a light is indispensable; but it is not required where the boat is fastened to the shore, especially at a place set apart for such boats." See also Ure v. Coffman, 19 How. 56; The Granite State, 3 Wallace, 310. In Cushing v. The John Fraser, 21 How. 184, 189, it was held that where the port regulations required a light the vessel was obliged to have one while in that port, and the court also said: "But apart from the regulations of the local authorities, we think the James Gray was in fault upon the established principles of maritime law. She was at anchor at a place where vessels were continually passing. It was her duty, therefore, to show, at night, the usual signal-light of a vessel at anchor, - that is, a globe lamp, or one without any dark side to it, which could be seen from any direction, and hung high enough in the rigging to be seen at a distance." In Nelson v. Leland, 22 How. 48, it was held that a flatboat on the Yazoo river ought to have one or more fixed lights, and that a torch made of split pine boards was not sufficient. In the case of Brainerd v. Steamer Worcester, U. S. D. C. Conn., Boston Daily Advertiser, Sept. 12, 1856, Judge Ingersoll held, "that by the maritime law, a vessel lying at anchor in a track frequented by other ships is bound to exhibit an efficient light, an effective light, sufficient to warn other vessels approaching of the position in which she is anchored. That a light hung in the port fore rigging of a vessel at anchor with her sails up, and so as to be obscured and eclipsed by the sails, from the view of a steamer approaching on the starboard side, so far as respects such steamer so approaching, is no sufficient light within the meaning of the maritime law." In The Thomas Martin, 3 Blatchf. C. C. 517, Mr. Justice Nelson held, that even if vessels were not bound to carry lights generally, still when approaching each other they were bound so to do. And in The R. B. Forbes, 1 Sprague, 330, Sprague, J., used the following language: "There is no imperative rule that required her to show a light. But if traversing these waters in the night time, where steamers may be expected, she omitted to do so, she ought not to recover damages against the steamer, if the latter had a good lookout." See also the language of Ware, J., in The Steamer City of New York, U. S. D. C. Mass., Boston Courier, Dec. 10, 1857. But see The Pilot Boat Blossom, Olcott, Adm. 188; The Steamboat Neptune, id. 483. In New York Steamship Co. v. Calderwood, 19 How. 241, which was a case of a collision between a sailing vessel and a steamer, the sailing vessel had no light. The court were of opinion, upon the evidence in the case, that this did not indicate negligence, but said: "But that the case may not be misunderstood, we assert that the ruling

carry the same lights. In 1852,1 the Lords of the Admiralty, in pursuance of power given by the act of 14 & 15 Vict. c. 79, issued regulations applicable to British vessels.

As to steamers the rules were substantially the same as those now in force. There was no separate provision for steamers when towing. Sailing vessels were required "when under sail,3 or being towed, approaching, or being approached by any other vessel," "to

5

principle of the court is, that an obligation rests upon all vessels found in the avenues of commerce to employ active diligence to avoid collisions, and that no inference can be drawn from the fact that a vessel is not condemned for an omission of certain precautionary measures in one case, that another vessel will be excused, under other circumstances, for omissions of the same description." In the case of The Steamer Louisiana v. Fisher, 21 How. 1, a collision occurred in Chesapeake Bay between a steamer and a sailing vessel. The latter had no light, and it was contended that she ought to have shown one. The court said: "In the present case, we have not been able to discover any fact that imposed the obligation upon the schooner to do so. The night was moonlight; and though the light was occasionally obscured, the evidence does not show that it was so to a degree that rendered the navigation of the bay at all dangerous, if care, skill, and vigilance had been employed upon the different vessels." See also Baker v. Steamship City of New York, 1 Clifford, C. C. 84. In The Hypodame, 6 Wallace, 216, a propeller on the Hudson river made a sudden sheer and ran into a schooner. The schooner had no light, and the propeller had not a proper lookout. Held that the propeller was alone in fault. Grier, J., after citing the language used by him in the case of The Osprey, supra, said: "But the case cited applies to vessels meeting in the same line, where one party can plainly see the other and yet keeps dark; but where the danger of collision is the consequence of a sudden or unexpected change of course, which produces a sudden peril and leaves no time to the sailing vessel to display a light before a collision, or to do more than shout, where the steamboat, if it had a sufficient lookout, might easily have avoided the collision, it has no right to complain or demand that the damages should be divided, as where both are in fault."

1

1 Swabey, Adm. App. i, 8 Moore, P. C. 168.

In The Sylph, 2 Spinks, Adm. 75, one light of a steamer called the Meteor had gone out, and she was consequently taken for a vessel at anchor. Dr. Lushington said: Though the Meteor may not be in any degree to blame for the light going out, for I apprehend lights will go out at sea as well as elsewhere, it might be an accident, yet it is the same as regards the other party as if it had arisen from negligence, she must suffer the consequences of the light going out, if she misled the Sylph." See The Swanland, 2 Spinks, Adm.

107.

In The City of London, Swabey, Adm. 245, a smack of sixty tons, hove-to under foresail and jib, reefing her mainsail, was considered a vessel under sail. The Unity, Swabey, Adm. 101.

See The Ceres, Swabey, Adm. 250.