Rule 9 “notwithstanding”

Rule 9 “notwithstanding”
by Jim Austin

    What might be the first recorded recognition of naval operations by an
army general goes back to the Peloponnesian War when Thucydides is reported
to have said, “A collision at sea can ruin your entire day.•bCrLf Taking
this thought a bit further, collisions sometimes occur because of
interpretation as to what a particular rule means – and that isn’t
always clear. Some examples include “close quarters,•bCrLf “not to
impede,•bCrLf “coming up with•bCrLf – (the latter defining the act of
overtaking). The rules set no parameters for these situations yet require
actions to be taken when they exist.
    In the preface to the first edition of his Rules of the Nautical Road,
Capt. Raymond Farwell, USNR, wrote: “(t)he rules will not be better
obeyed until they are better understood.•bCrLf Sixty-eight years after he
penned them, his words are no less true today. Periodically, questions
arise concerning the rules, not in relation to their intent but rather
their wording and interpretation by both the mariner and subsequently
(should it come to that) a court. Such questions indicate that on the water
the rules don’t always say what they mean nor in the courtroom, mean what
they say.
    This perception is supported by the fact that if the circumstance
comes before a judge, it not infrequently requires months of deliberation
to decipher the meaning of a rule that has bound the mariner to its
execution, sometimes in minutes. The seeming court room inconsistency in
interpretation adds little to the mariner’s comfort zone.
    A recent Professional Mariner newsletter looked at the problems facing
Mississippi River pilots and masters in their attempts to dissect the
requirements of Inland Rules 9 (Narrow Channels) and 14 (Head On /
Meeting), as well as the exceptions provided downbound power-driven vessels
within those two rules. Also considered in the stew was the
Points-and-Bends Custom – but the latter won’t be considered here.
    Specifically, this will look at the “notwithstanding•bCrLf exceptions
granted downbound vessels and whether recurrent confusion emanates from the
language of the rule as to its intent, the interpretation by the courts as
to its meaning – or given the variables inherent in the above,
uncertainty in its application by the mariner.
Essentially, Inland Rule 9(a)(i) requires vessels to keep to the right in
the channel and Rule 14(a) for vessels to pass port/port. Beyond that, both
rules go on to provide an exception with the addition of nearly identical
subparagraphs – 9(a)(ii) and 14(d) are the “notwithstanding•bCrLf
exceptions for vessels operating on the Great Lakes, Western Rivers, etc.
They hold that regardless of the dictates of 9(a)(i) or 14(a), vessels
proceeding downbound with a following current:
• shall have the right of way over an upbound vessel
• shall propose the manner and place of passage
• and shall initiate the maneuvering signals prescribed by Rule 34
    The vessel proceeding upbound against the current shall hold as
necessary to permit safe passing.
     (Differences between the two rules are underlined to remind that,
although being nearly identical, neither the “place of passage•bCrLf nor the
requirement for the upbound vessel “to hold as necessary,•bCrLf peculiar to
Rule 9, are mentioned in Rule 14. It’s also an interesting side note that
within the entire bodies of both the ColRegs and Inland Rules, only 9 and
14 employ the phrase “right of way.•bCrLf This will confine itself to Inland
Rule 9, since Rule 14 in the matter at hand is nearly identical on the
Western Rivers).
    Court documents suggest that two questions commonly arise: Is there a
conflict between the seemingly contradictory requirements of 9(a)(i) and
9(a)(ii) and does the downbound vessel unequivocally have the right of way
as is sometimes written and claimed?
    The question arises whether the wording itself is the cause of the
    As to the first question, it would seem that there is no contradiction
implicit in the wording. In both rules, it’s stated that in the case of
those specific waterways, “notwithstanding•bCrLf the customary default
requirements to keep to the right and/or pass port/port, the prerogative
granted the downbound vessel is provided by the subparagraphs that follow.
    The greatest problem seems to lie within the second question, not only
on the water but in the court, and this is to suggest that it’s the
wording of the rule that muddies the situation. In numbers of cases, one or
the other of the parties advances their interpretation of the rules to be
that “downbound has the right of way•bCrLf and the courts remind that the
“right•bCrLf is not absolute, that it is contingent upon the (downbound)
vessel having fulfilled the requirement that she had proposed the “how
and where•bCrLf of passing and sounded the appropriate signals and that
further, the upbound vessel would be expected to hold as necessary, etc.
    In a case heard before the Fifth Circuit, the court stated that
“(v)essels navigating the Mississippi River must adhere to the Narrow
Channel Rules unless otherwise agreed•We have previously held that a
downbound vessel’s right of way under Rule 9 is conditional in
that•(it)•must have proposed a manner and place for passage•etc. .
When the downbound vessel exercises its authority under Rule 9(a)(ii), the
upbound vessel must give way.•bCrLf (Alaska v. Reliant Seahorse, Fifth
Circuit, 1996).
    In another case heard by the same court, it noted that courts have
agreed that the determination as to “what is a narrow channel is a mixed
question of law and fact.•bCrLf It then went on to remand the case then
currently before it to the trial court for a decision as to whether a
certain portion of the Mississippi “is a •narrow channel’ within the
meaning of Rule 9.•bCrLf In that case, the court stated that while a vessel
descending the Mississippi “must adhere to the default requirements of
Rules 9 and 14 (stay right and pass port/port) unless otherwise agreed,
“downbound vessels may FORCE a departure from these default rules
provided they comply with the requirements•propos(ing) manner, place,
etc.•bCrLf (Marine Transport v. Tako Invader, Fifth Circuit, 1994).
    From these two cases heard before the same Circuit Court comes the
(a)    In one, it stated that the Narrow Channel Rule applies on the
Mississippi – no qualification as to where or if – simply that the rule
(b)    In another case two years earlier, the same court remanded the case
for the trial court to determine whether a certain location on the
Mississippi was considered to be a “narrow channel.•bCrLf An apparent
conflict between (a) and (b).
(c)    Rule 9 holds unless there is agreement otherwise.
(d)    Downbound has the authority under 9(a)(ii) to “force•bCrLf
agreement, thus contradicting (c).
(e)    Since (d) obviates (c), the option for the upbound vessel to agree
or not would seem to apply only to the primary default portion of the two
rules, not the subsequent “notwithstanding•bCrLf paragraphs. Once downbound
invokes 9(a)(ii), it has the authority to “force•bCrLf agreement.
    In the above, to juxtapose “force•bCrLf with “propose•bCrLf seems
contradictory. If the “notwithstanding•bCrLf option delegated to the
downbound vessel was meant to assign her absolute authority over the
passing arrangement, it would seem that the word “propose•bCrLf is strained
in its interpretation by the courts. “Propose•bCrLf implies suggestion, to
offer an idea or solution – implying that upbound’s opinion is invited
and that a response as to yes or no (one, two or five short on the whistle)
is anticipated – granting downbound a first-among-equals status – the
prerogative of initiating a proposal for, but not dictating or mandating a
course of action regardless of the other vessel’s ability, for whatever
reason, to comply with the “proposal.•bCrLf
    Delegating the prerogative of initiating a proposal to the downbound
vessel seems somewhat distant from judicially recognizing her right to
“exert authority•bCrLf requiring the upbound to “give way.•bCrLf It seems
that the phrase “unless agreed upon,•bCrLf while used in reference to
maneuvers executed under Rules 9(a)(i) and 14(a), does not find itself
applicable in situations covered by subparagraphs (a)(ii) of Rule 9 or (d)
of Rule 14 – suggesting that in those specific “notwithstanding•bCrLf
situations, an upbound vessel is not granted the option of disagreeing with
a “proposal•bCrLf made by the downbound vessel. If “propose•bCrLf is intended
to imply “impose,•bCrLf it would be appropriate if it were made clear within
the wording of the Rules.

About the Author
Following graduation from the U.S. Naval Academy, Jim Austin served aboard
both a destroyer and cruiser with duties that included navigator, assistant
CIC (combat information center) officer and air intercept controller. He
subsequently worked on the submarine launched ballistic missile program for
General Electric Co.’s Ordnance Division.He holds a U.S. Coast Guard
master’s license and writes frequently on ship collisions as seen through
the twin lenses of the navigation rules and maritime law. He’s a retired
physician living in Burlington, Vt.

By Professional Mariner Staff