Periodically, articles appear in the professional literature suggesting changing, modifying, deleting or adding to the Navigation Rules (â€œRulesâ€ here is used in the generic sense to include both ColRegs and Inland). Reasons vary, but it might be fair to say that in some cases itâ€™s because the rules fail what might be called the â€œc-testâ€ â€” that they be clear, concise and consistent, since when one or more are lacking, confusion and collision follow in their wake.
(1) use of undefined terms. These include â€œrisk of collision,â€ â€œclose quarters,â€ â€œovertaking,â€ â€œnarrow channel,â€ â€œcustom,â€ â€œconstrained by draftâ€ and perhaps the universal favorite â€œnot to impedeâ€ â€” especially when a draft-hampered vessel meets a vessel directed â€œnot to impedeâ€ in a narrow channel!
(2) inconsistent court interpretations. Two of the most common seem to center on: (a) â€œcustomâ€ and (b) â€œnarrow channelsâ€ and in both of these, itâ€™s the uncertainty of where and under what circumstances they apply. It would seem that both have been made moving targets, since what applied today may or may not be recognized tomorrow.
In the case of custom, it is oft repeated that when a rule and custom collide, the rule applies. Despite that, vessels have in some cases been faulted for observing Rules 14 (Head-on Situation) and 9 (Narrow Channels) instead of the points and bends custom on the Mississippi. To further compound the confusion, one court in such a situation stated that â€œwhen we decide that a custom has been proved, it is never a precedent; on other testimony the same judge might find that the custom did not exist; on the same testimony another judge might find that it did not.â€
In discussing custom, John Griffin in The American Law of Collision offered that â€œeach vessel has the right to assume that the other will conform to the requirements of an established usage, and must govern her own conduct accordingly.â€ Given the courtâ€™s above statement regarding when or where a custom is or isnâ€™t applicable, it would seem that the courts have made â€œusageâ€ of this custom somewhat less than â€œestablished,â€ frustrating Griffinâ€™s goal, not to mention being somewhat less than concise, clear and consistent.
As for â€œNarrow Channels,â€ itâ€™s more a question of â€œis it or isnâ€™t it?â€ In the above case, the question of application of the narrow channel rule was debated. The Circuit Courtâ€™s response was that â€œthe determination of â€˜what is a narrow channelâ€™ is a mixed question of law and fact â€¦ (and)â€¦the application of the rule is not based solely on the physical dimensions of the water, but also on the character of the navigational use.â€ Since there is no listing of the waters where it applies, its application had been left to the courts.
Following a tug/tug collision on the Ohio, the National Transportation Safety Board had recommended that the Coast Guard publish interpretive rulings so that navigators will know where to apply the narrow channel rule, observing that â€œit will do little good to learn months after an accident that a court has ruled that a particular portion of the waterway, under a particular set of circumstances was or was not a narrow channel under the rules and that the narrow channel rule should or should not have been applied by the persons involved in the accident.â€ Such information has never been made available.
Although he was addressing the concept of custom, John Griffinâ€™s observation could and should apply to the construction of any navigation rule. To expect a watchstander to mentally review a long algorithm of parameters in order to conclude, in the minutes available, as to whether his channel is narrow (on that day and place) and whether a custom is applicable (on that day and place) haunts the objective of the Rules for the Prevention of Collisions.
One must only review a tragedy of some 131 years ago to appreciate that confusion as to what a rule says, what it means and what the courts say it means is not a new problem.
On a clear night, a 250-foot, 900-ton vessel was proceeding downriver with the current. The bridge was well manned with experienced watch officers whose attention was then on the approaching maneuver â€” a gradual turn to starboard to follow a 90° bend in the channel (the right descending bank). She had been running in the center of the channel, but on sighting ahead the masthead and red sidelight of an oncoming upbound vessel, she edged to starboard.
Let us now turn to that upbound vessel running against the current. Some 210 feet and 250 tons, she too was manned with experienced and respected mariners. As she ascended the channel, she saw ahead, around the bend and somewhat to port, the white masthead and green sidelight of the downbound vessel. She also was thinking about her upcoming maneuver. By crossing the channel and heading to port for the point, and in the process allowing the downbound to remain in the current on the bend (a starboard-to-starboard passing), she would be following the â€œordinary practice of seamen.â€
Conflicting decisions â€” one turning port and the other starboard â€” led to the inevitable collision in September 1878 â€” one of the worst disasters in British waters. The collier Bywell Castle was the vessel heading downstream on the Thames; Princess Alice, a passenger vessel with about 700 aboard, was returning upbound from an evening excursion. As she was crossing the channel from starboard to port, she took the bow of Bywell Castle approximately amidships to starboard. Sinking rapidly, she took most of the passengers with her.
At this point itâ€™s necessary to consider what guidance was there for vessels navigating that channel at the time of the tragedy. Until several years previous to the event, Rules originating at Trinity House in 1840 governed. One held that vessels navigating a river or narrow channel must keep to the starboard side. And a much disliked rule â€” known historically as the Law of the Port Helm â€” required that when two vessels approached so as to involve a risk of collision, they must both â€œport their helmâ€ (turn to starboard). The latter was in such disfavor that some years later it was eliminated for all but vessels approaching end-on but for some unknown reason, most likely oversight, when the port-helm requirement was deleted from the rules, so was the injunction to â€œkeep to starboard.â€ This was the situation as the downbound vessel approaching the bend sighted an approaching white masthead and red sidelight.
As pointed out by John Kemp in his â€œThe ColRegs and the Princess Aliceâ€ (Journal of Navigation), it was the â€œordinary practice of seamenâ€ for â€œships proceeding against the tide to try to keep out of the main tidal stream, while ships proceeding with the tide would prefer to keep within the main streamâ€ (remarkably like the Mississippi â€œpoints and bendsâ€ custom).
As Capt. Kemp also noted in his article, for the upbound vessel to have continued on into the bend while making her gradual turn to port, it would have crossed the projected track (â€œprojectedâ€ as existed prior to each vesselâ€™s turn) of the oncoming vessel. Crossing another vesselâ€™s bow, then as now, is never an attractive option and certainly must have been a factor in the decision to come further to port and make for the point, shaping up for a starboard-to-starboard passing.
Law of the Port Helm (for all but meeting) having been eliminated and the rule requiring a vessel to keep to the starboard side of the channel having gone with it (apparently by oversight), then what was to be the â€œordinary practice of seamen?â€
For some time this writer has attempted to ferret out who it was that originated the phrase â€œRules of the Road.â€ The trail leads back and seems to stop at one Thomas Gray, an undersecretary of the Board of Trade, who had written verses with the intention to serve as aids to the seaman under the different approach situations â€” meeting, crossing and passing. As an example â€” for vessels crossing:
â€œIf to starboard red appear,
â€˜Tis your duty to keep clear
But when on port is seen
A steamer with a light of green
Thereâ€™s not so much for you to do
The green must keep clear of you.â€
These in 1878 were the guidance for those two approaching vessels. Then, as now, when individually reasonable (but contradictory) interpretations of a situation can both be correct, confusion and risk of collision looms; additionally, when subsequent and inconsistent legal interpretations of the situation occur, it compounds the marinerâ€™s uncertainty. Multiple examples of confusion (both on the bridge and in the courts) continue â€” not only as to what a rule says, but what it means. It would seem that the mariner deserves better.
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 the 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.