When custom collides with the rules

    An allision on the Mississippi enveloped within its clutches an inland navigation rule and a custom, specifically Rule 9 (narrow channels) and the point-bend custom. The locus was a downstream bend in the channel from north to east-southeast (some 124°) opposite a point jutting out from the right descending bank at Algiers Point in New Orleans.

    In order to control traffic at the point, Vessel Traffic Services operates navigation lights especially at time of high water (and strong currents), prohibiting approaching vessels from passing each other at the point under those conditions. Those lights were inoperative at the time of the incident.

    The lower Mississippi, as if balking at the prospect of entering the Gulf, twists and turns with increasing current around the bends and slack water, eddies and counter-currents under the points, providing a challenge, if not headache, to transiting mariners. Complicating the vagaries of the current, eddies, fog and traffic in a twisting channel is the question of whether rule or custom applies when vessels are approaching each other from opposite directions at these navigational choke points. Is it a “narrow channel” (a phrase that remains undefined) as envisioned by Inland Rule 9, or does the points-and-bends custom apply at this location (considering that not only this custom in particular, but “customs” in general, have been inconsistently recognized by the courts, not only as to where — but if!)?

    Inland Rule 9 (like Rule 14) is basically a keep-to-starboard rule for vessels meeting (except that the latter is for vessels in sight and the former for any visibility condition). Both provide the Western Rivers prerogative giving the downbound vessel right-of-way if she first fulfills certain obligations. It’s often written that Inland Rules 9(a)(ii) and 14(d) bestow right-of-way to a downbound vessel on the Great Lakes, Western Rivers, etc., but without sufficient emphasis on the caveat that the ROW assertion is conditional. Farwell’s Rules of the Nautical Road, Eighth Edition, by Craig H. Allen, draws attention to a statement in a case heard by the Fifth Circuit reminding that the downbound vessel’s authority to deviate from the obligation to keep as far to starboard as is safe and practicable “is not self-executing,” but t hat “it depends upon the downbound vessel having proposed a manner and place of passage.”

    Downbound tug A and tug B half a mile astern of A, both with tows, were approaching the point along the right descending bank, having had just executed port-to-port passings with an upbound vessel above the point. Prior to that port-to-port passing, tug A had radioed her intention to hug the point. This would be in conformity with Inland narrow channels Rule 9 requiring vessels to keep to the starboard side of the channel and further, conforms to the subparagraphs (a)(ii) of that rule regarding the Western Rivers, etc., as covered above.

    But would the 1,600-plus-foot width at Algiers Point be seen by a court (should it come to that) as a narrow channel, given that the term has never been defined and that it has been admitted that the same evidence presented to two different courts could result in two different opinions? While the tugs proceed toward the point, attention now shifts to the inbound vessel and her perception of the points-and-bends custom.

    On the lower Mississippi, in deference to current effects, it’s the custom for downbound vessels to run the bends and upbound vessels to the points. It is often repeated by the courts that while “custom” may have the “force of law,” it is not a “rule of law.” Although the custom may be recognized by the court (if the vessel pleading can prove that the custom not only exists, but is applicable to the location and situation), the decision isn’t sacrosanct; one court has stated, “When 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.”

    The watch officer with two sidelights and closed mastheads bearing down on him is unlikely to be contemplating the fine legal distinction between “force of law” and “rule of law.”

    A bulker was approaching upbound below the point. Although the vessels involved had VHF communication, the physical geography of the point precluded visual contact between vessels approaching from opposite directions. As the upbound vessel, the bulker making for the point would be conforming to the points-and-bends custom. As she approached, the bulker questioned the wishes of oncoming but as-yet-unseen tug A. The latter replied that she was on the point and suggested that if the bulker wanted a starboard-to-starboard passing, she (the bulker) would have to get over to the right descending bank (which would require tug A to come to port and into the bend with its strong current). During this exchange, tug A informed the bulker that tug B astern of her also “wanted the point.”

    If tug A did go to port for a starboard-to-starboard passing and tug B, following behind, continued toward the point for a port-to-port passing, the bulker would be threading the needle, taking tug A to starboard and, shortly thereafter, tug B to port.

    Now unsure and in mid-river, the bulker realized that tug B’s desire to hug the point would put the two head-to-head if she also made for the point — but for the moment her immediate task was to first clear oncoming tug A and tow. They finally made a starboard-to-starboard passing agreement, and despite the tug’s difficulty with the current, it succeeded. Now the bulker faced tug B.

    Communicating with tug B, the bulker expressed inability to make a starboard-to-starboard passing with her if the former maintained for the point. The tug countered with a port-to-port proposal, but by then the bulker was near the right descending bank, which made the latter possibility unlikely, so the bulker asked the tug to “widen out” (into the bend) for a starboard-to-starboard passing. This she did, but whereas tug A had been working with empty barges, tug B’s were laden and more difficult to control in the swift downstream current. Allision with moored barges on the bank across from the point resulted.

    The usual suits flew back and forth and when the dust settled, the District Court found tug B negligent in failing to (a) make clear her desire to hug the point and to (b) assert affirmatively her preference for a port-to-port passing. (Note the court’s use of the word “assert”.) On the other side, the bulker was found negligent on several counts: (a) failing to slow or reverse when the prospect of embarrassing the tug’s navigation became apparent; (b) “forcing” a starboard-to-starboard passing with the tug when the latter’s need/desire to hug the point was known or should have been known; and finally (c) her failure to slow or hold in order to permit the tug to clear the point prior to passing.

    The District Court assigned fault one-third to tug B and two-thirds to the bulker. The degree of fault and apportionment of liability were appealed by the bulker to the Fifth Circuit, the bases of the appeal being the trial court’s treatment of Rule 9 and the point-bend custom.

    The bulker questioned the court’s treatment of the point-bend custom, arguing that her starboard-to-starboard passing was in compliance with the custom. The Circuit Court addressed the question by admitting that “while we have frequently applied the point-bend custom, saying that it is judicially recognized and is of such long standing that it has the force of law, we have never stated that the applicability of the custom is a rule of law.” This had been bolstered by testimony that during the times of high water at Algiers Point, the custom was for the upbound vessel to slow or stop until the downbound had cleared the point. (Once again, recall the inoperative traffic lights.)

    She was also unhappy with the court’s application of the narrow channel rule. As for that rule, the Circuit Court took notice that not only was the term undefined, but that courts have held “that the determination of ‘what is a narrow channel’ is a mixed question of law and fact. Further, and since 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” and that there being no listings of the waters where it applied — its application had been left to the courts. Since the trial court agreed (by implication) that it applied at Algiers Point, the Appeals Court would not express an opinion on the narrow channel question.

    Ultimately, the Court of Appeals affirmed the findings of the trial court.

    As long ago as 1982 and following a tug/tug collision on the Ohio, the National Transportation Safety Board recommended that the U.S. Coast Guard publish interpretive rulings so that navigators will know when to apply the narrow channel rule, observing that “it 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.” Such information has never been made available.

    In discussing custom, John Griffin in The American Law of Collision noted that “each 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.” Courts have made the application of both the narrow channel rule and the points-and-bends custom moving targets, since what applied today regarding either, or both, may or may not be recognized tomorrow. It would seem that this severely hobbles Griffin’s goal of an “established usage” standard, providing little comfort to the watch officer whose major defenses against collision are consistency and predictability and whose greatest enemies are uncertainty and confusion.

    At the end of the day, it would seem that whether or not this custom at this location exists, and if so, whether or not it applies at this time and under these conditions — all depend on which court is involved. It is probably no reassurance to the mariner that the court will also ponder whether or not the waterway in question is actually a narrow channel, since sometimes it is and sometimes it isn’t, given that many of the same variables that apply to the custom decision also apply to it.

    For those interested, “The Mississippi River Point-Bend Custom” by Robert T. Lemon was published in the Journal of Maritime Law and Commerce (Vol.19) in July 1988. It’s a fascinating and in-depth documentation of both the navigational aspects and legal backing and filling that’s occurred over the years.
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