Defects of these rules. Present rules. sailing ships on the starboard tack closehauled, to the keeping such ships under command." It is unnecessary to point out the obvious defects of this clause, which, indeed, had it been practicable really to carry the clause into operation, must have either revolutionized the law of the sea, or thrown the matter into hopeless confusion. The clause was by degrees rendered innocuous by constructions put upon it in the Admiralty Court, in which a certain necessary violence was done to the plain language of the Act (a), and it has since been replaced by a clause better susceptible of being carried into effect. The Merchant Shipping Amendment Act, 1862, enacted (clause 25), that on and after June 1st, 1863, the Regulations given in table C. of the schedule should have the force of law, but that " Her Majesty may from time to time, on the joint recommendation of the Admiralty and the Board of Trade, by Order in Council, annul or modify any of the said regulations, or make new Regulations in addition thereto or in substitution therefore, and any alterations in or addition to such Regulations made in (a) For example, though the statute in terms seems to apply to all cases of ships approaching each other from whatever quarter, the Admiralty Court and the Judicial Committee pronounced it solely applicable to vessels meeting end-on (Inflexible, Swab. 35; Independence, 1 Lush. 277). The direction to port helm, given in the statute, was pronounced inapplicable to vessels closehauled on the starboard-tack (Halcyon, 1 Lush. 101). See also, as illustrating the liberal manner in which the statute was construed, the Mangerton, Swab. 123, and the Ericcson, Swab. 39. The fact is, it was impossible to carry out the statute very literally. manner aforesaid shall be of the same force as the Regulations in the said schedule." It was further enacted (s. 26), that the Board of Trade should take certain steps for the issuing and publication of the Regulations referred to, and of any alterations or additions that might be made, and for furnishing copies of them to any owner or master of a ship who should apply for them. The Regulations issued by the Board of Trade, in pursuance of the power thus given, are identical with those contained in Table C. of this Act, and are as follows: “ Art. 11.—If two sailing ships are meeting (a) i. e., the vessel on the port tack. Differences between these common sea law. shall keep out of the way of the ship which is to leeward." "Art. 17.-Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel." "Art. 18.-Where by the above Rules one of two ships is to keep out of the way, the other is to keep her course, subject to the qualification contained in the following article." "Art. 19.-In obeying and construing these Rules, due regard must be had to all dangers of navigation, and due regard must also be had to any special circumstances which may exist in any particular case rendering departure from the above Rules necessary order to avoid immediate danger." in These Regulations, it will be seen, do not widely rules and the differ from the common law of the sea. Art. 11 seems to impose on closehauled vessels a more absolute obligation to port the helm than that to which they are subject by the common sea law. In the case of the Surprise, where a ship closehauled on the starboard tack, meeting another vessel, did not port the helm, but continued her course, and a collision took place, Dr. Lushington, after quoting s. 296 of the Merchant Shipping Act-the Act at that time in force,—and after observing that nothing could be stronger than that enactment, and that although some persons had considered it too strong, still it was the law and must be obeyed, proceeded to direct the Trinity Masters that, under this section, the only question for them was, whether the ship could with safety have complied with the rule. She might have been excused for noncom. pliance if porting the helm would have occasioned immediate danger. But, he said, "if you are of opinion that the other vessel was so approaching the Surprise that there was a risk of collision, and that there was no danger in porting the helm of the Surprise, then I think, according to the statute, the Surprise was bound to have ported her helm " (a). It is true that this decision is based on the clause which has been repealed, but Art. 11 of the new Regulations appears to be equally peremptory in its terms; and if it is to be construed in the same manner, it appears considerably to abridge the common law right of the ship closehauled on the starboard tack to hold on her course without alteration. It can hardly have been intended, however, that a ship in such a situation should throw herself so far up into the wind as to become unmanageable: this extravagant application of the statutory rule was expressly guarded against in s. 296 of the old Act; and, although in the later Regulations nothing is expressed on this head, yet the general terms of Art. 19 appear sufficient for this purpose. Such a ship, however, must, it would seem (under the statute), always port her helm so as to come as close to the wind as is consistent with being under command. (a) 8 Mitch. 83. Exceptional circumstances. Art. 12 of the Regulations, laying down rules for vessels which cross each other, appears, so far as it goes, to be in conformity with the common sea law. It does not define in what manner one ship is to "keep out of the way" of the other, so that, it be presumed, the general rule is applicable, that "keeping out of the way" means, for the most part, going astern of the other ship. may In conclusion, it is to be pointed out that the steering rules are, by the common sea law, as well as by Art. 19 of the above-mentioned Regulations, subject to the limitation that, in the observance of them, due regard must be had to the dangers of navigation, as well as to any special circumstances which may in particular cases render a departure from the rules necessary for the avoiding of immediate danger. For example, a ship is not bound to follow the rule, when the doing so would lead to her running aground (a). When a collision is inevitable, it is always permitted to starboard the helm, or otherwise depart from the rule, in order to ease the blow or receive it on the strongest part of the ship (b). In such a case, as is but reasonable, the onus pro (a) "This is apparent to common sense, as in the case of a vessel going so near to a rock or a shore of sand, that, if she followed the rule, she would inevitably become a wreck: no person would say the rule was to prevail over the still higher consideration of the preservation of property or of human life" (per Dr. Lushington, in The Friends, 1 W. Rob. 485.) See also General Navigation Company v. Tonkin, 4 Moore, P. C. C. 314. (b) Joseph Somes, Swab. 188. |