429.

the spiles under a slow bell. As she came beyond the spiles, her master saw the Bear proceeding up the river and blew her a onewhistle "signal." At this time the No. 12 was running slow, under one bell. The Captain of the No. 12 testifies that when he blew the one-whistle signal he understood that he was navigating under a starboard hand situation, and that the No. 12 was the privileged vessel. After the No. 12 blew a one-whistle signal, she hooked up her engines, thus of course greatly increasing her speed. The Bear proceeded up the river without apparently doing anything to avoid the collision. The testimony of the Bear places the point of the collision below Pier 1, but I think the Captain of the Bear is mistaken in this as he seems to be somewhat uncertain as to the exact point at which the collision occurred. He stated that the No. 12 backed out of a slip below Pier 1 and headed up the river going in the same direction in which the Bear was proceeding.

I do not believe this to be the fact and can only reconcile that testimony with the facts found, upon the theory that he thought the Bear might be heading up the river because she was coming out under a port helm to offset the set of the ebb tide, thus throwing her head up the river.

The No. 12 saw the whole situation, at least from the time she emerged from behind the carfloat, for her Captain testifies that having blown the first one-whistle signal and having thereafter hooked up his engines, he blew another one whistle signal to the Bear, because, as he says, his first whistle signal was not answered and he wanted to reach an agreement with the Master of the Bear. He received no answer to the second signal, proceeded on his way until a collision was imminent, then gave an extra jingle to shoot across the bow of the Bear.

Whether this is a situation requiring the application of the "Special circumstance" rule, or of the starboard hand rule, has been argued in the briefs of both counsel. It seems to me that, whichever rule is applied, neither navigator should lose sight of the general prudential rule. (Article 27, Inland rules, pilot rule XI.)

"Cases arise in navigation where a stubborn adherence to a general rule is a culpable fault, for the reason that every navigator ought to know that rules of navigation are ordained not to promote collisions." The New York, 175 U. S. 187, 205.

1925 A. M. C.

The No. 12 was bound to a pier a short distance down the river. Her only object in going out into the river was to safely pass the end of Pier 1, and I can see no real reason why she should have found it necessary to persist in attempting to cross the bow of the Bear with so close a margin. "Close shaving," especially when unnecessary, has frequently been condemned. With the Bear 300 feet off the end of Pier 1 and proceeding up the river thus constantly increasing that distance, I cannot see why the No. 12 could not have slowed or stopped and passed easily between the Bear and the New York shore. It is argued that she was on a course. I do not agree with this because she was bound for a pier only a short distance down the river from the place which she left and on the same side of the river; and it was while she was getting out into the river to make the swing down, that the collision occurred. I am inclined to think that the situation was one requiring the application of the "special circumstance" rule.

If, however, the case is one requiring the application of the starboard hand rule, I cannot see that the position of the No. 12 is very much better. If, as Counsel for the No. 12 argues, he was on a definite course when he blew his first one-whistle signal indicating his intention to take advantage of the starboard hand rule, it seems to me that he took his privilege under that rule, incumbered with the obligations which follow. He had not hooked up at the time but was running under a slow bell; and if the Captain of the Bear saw and heard him, he would have a right to assume that not only his course but his speed would be continued. Had the No. 12 continued the speed at which she was running at the time she gave the first one-whistle signal, obviously there would have been no collision.

Moreover, I do not think that the starboard hand rule is intended to be an absolute rule of navigation despite all hazards.

The Bear of course was not obliged to answer the one whistle, but the fact that she did not respond, but continued on her course, and that the Captain of the No. 12 blew a second one-whistle signal to get as he called an agreement, leads me to conclude that there was apparent danger of collision at the time the second one-whistle signal was blown, calling for the exercise of diligence on the part of the No. 12 even though she was the privileged vessel, yet the No. 12, having increased her speed after giving her first "one-whistle" signal, did nothing until the vessels were almost in collision, when she

429.

gave an extra jingle thus increasing her speed in an attempt to cross. the Bear's bow.

"The privileged vessel has no right to keep her course with her eyes shut."

"The privileged vessel is bound to hold her course, constantly observing the burdened vessel in order to notice if the latter fails in her duty." The Devonian, 110 Fed. 588; The New York, 175 U. S. 187, 206.

دو

Whether therefore the starboard hand rule or the "special circumstance rule is applied, it seems to me that the No. 12 was also guilty of fault. The damages should therefore be divided.

1925 A. M. C.

LEGISLATION.

HOME PORT ACT.

Act of Congress, Feb. 16, 1925.

AN ACT

To establish home ports of vessels of the United States, to validate documents relating to such vessels, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purposes of the navigation laws of the United States and of the Ship Mortgage Act, 1920, otherwise known as section 30 of the Merchant Marine Act, 1920, every vessel of the United States shall have a "home port" in the United States, including Alaska, Hawaii, and Porto Rico, which port the owner of such vessel, subject to the approval of the Commissioner of Navigation of the Department of Commerce, shall specifically fix and determine, and subject to such approval may from time to time change. Such home port shall be shown in the register, enrollment and license, or license of such vessel, which documents, respectively, are hereinafter referred to as the vessel's document. The home port shown in the document of any vessel of the United States in force at the time of the approval of this Act shall be deemed to have been fixed and determined in accordance with the provisions hereof. Section 4141 of the Revised Statutes is hereby amended to conform herewith.

SEC. 2. No bill of sale, conveyance, mortgage, assignment of mortgage, or hypothecation (except bottomry), which includes a vessel of the United States or any portion thereof shall be valid in respect to such vessel against any person other than the grantor or mortgagor, his heirs or devisees, and any person having actual notice thereof, until such bill of sale, conveyance, mortgage, assignment of mortgage, or hypothecation is recorded in the office of the Collector of Customs, at the home port of such vessel. Any bill of sale or conveyance of the whole or any part of a vessel shall be recorded at the home port of such vessel as shown in her new document.

SEC. 3. All conveyances and mortgages of any vessel or any part thereof, and all documentations, recordations, indorsements, and indexing thereof, and proceedings incidental thereto heretofore made or done, are hereby declared valid to the extent they would have been valid if the port or ports at which said vessel has in fact been documented from time to time had been the port or ports at which it should have been documented in accordance with law; and this section is hereby declared retroactive so as to accomplish such validation: Provided, That nothing herein contained shall be construed to deprive any person of any vested right.

SEC. 4. Wherever in the Ship Mortgage Act, 1920, otherwise known as section 30 of the Merchant Marine Act, 1920, the words "port of documentation" are used they shall be deemed to mean the "home port" of the vessel, except that the words "port of documentation" shall not include a port in which a temporary document is issued.

SEC. 5. All such provisions of the Navigation Laws of the United States and of the Ship Mortgage Act, 1920, otherwise known as section 30 of the Merchant Marine Act, 1920, as are in conflict with this Act are hereby amended to conform herewith.