approaching each other from opposite directions, head and head, so as to involve risk of collision. Each vessel ports its helm and passes to the right; that is, on the port side of the other vessel. The rules do not apply when vessels are meeting each other at right angles;1 and they do apply when vessels on different courses must cross so near that, by continuing their course they incur the risk of collision, head to head, or bow to bow, or nearly so; as where they are approaching each other on oblique courses.2 Independent of the act of Congress, steam vessels are regarded in the light of vessels navigating with a fair wind, and are under obligation to do whatever a sailing vessel going free or with a fair wind, would be required to do under similar circumstances. Having supérior power to direct and control their course and speed, they must, in approaching them, take every precaution to keep out of the way of sailing vessels.3 The rule of navigation permits a sailing vessel, when approaching a steamer, to hold on her course; and obliges the steamer, as a general rule, to keep out of the way. § 740. The rule of the road does not require vessels of steamers in all cases, and under all circumstances, to pass each other on the right. Being about to meet, each must take such a course and direction as will swer by two similar blasts of his whistle, and they shall pass to the left, or ou the starboard side of each other. "RULE 2. When steamers are approaching each other in an oblique direction, they will pass to the right, as if meeting head and head,' and the sigual by whistle shall be given and answered promptly, as in that case specified. "RULE 3. If, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from the signals being given or answered erroneously, or from other cause, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam-whistle, and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerage-way, until the proper signals are given, answered, and understood, or until the vessels shall have passed each other. "RULE 4. The signals, by blowing of the steam-whistle, shall be given and answered by pilots, in compliance with these rules, not only when meeting 'head and head,' or nearly so, but at all times when passing or meeting, at å distance within half a mile of each other, and whether passing to the starboard or larboard. "N. B. The foregoing rules are to be complied with in all cases, except when steamers are navigating in a crowded channel or in the vicinity of wharves; under these circumstances steamers must be run and managed with great cantion, sounding the whistle as may be necessary, to guard against collisions or otlier accidents." 1 Hunt v. Hoboken Land & I. Co., 1 Hilton, 161, 165; 3 È. D. Smith, 144. 2 Idem; per WOODRUFF, J., 3 E. D. Smith, 144, 147. 3 Hawkins v. D. & O. Steamboat Co., 2 Wend., 452; St. Jolin v. Paine, 10 How. U. S., 557; 9 Wall., 146, 153. 4 N. Y. & Liverpool U. S. Mail S. Co. v. Rumball, 21 How. U. S., 372, 383; The Warrior, 4 English (Moak), 603; Beal v. Marchais, 8 English (Moak), 242, be least likely to injure the other, and will be best calculated to avoid a collision; and that vessel or steamer which has the greatest facilities for choosing and taking its adopted course, the most facile and available motive power, and consequently the greater control over its own movements, is called upon to give the preference to the other, and yield to it in the choice of routes. This qualification of the rule of the road has been applied, where a steamboat carrying passengers, coming up the Hudson at full speed with the tide in her favor, met a smaller steamboat encumbered with a tow, moving down the river about four miles an hour, in a wide channel. The circumstances were considered such as to require the steamboat moving with speed to avoid the other, and hold her liable in damages for a neglect of this duty.1 Every circumstance is to be considered in determining the duty of each vessel; c. g., the tide, the wind, the relative position of the vessels, and the usual course or custom of navigation pursued on the water. Due regard must be had to all the dangers of navigation, and to the special circumstances which render a departure proper, from the usual rule of the road, or from the regulations for preventing collisions. There being no dangers of navigation, and no special circumstances justifying a departure from the ordinary rule, à vessel is bound to follow the rule of navigation which is applicable to the situation. And yet a failure to comply with a rule of navigation, in a given particular, will not defeat a recovery for an injury not arising from the omission, or which ought to have been prevented by the other vessel. The rules of navigation require that a moving vessel shall keep a sufficient watch or lookout, properly placed, at night to guard against the danger of a collision. But the usual rule does not apply, or does not prevent a recovery of damages for an injury, where the collision could not have been guarded against by a lookout, or where it is clear that the want of one had no agency in causing the collision. The kind of lookout to be kept, depends upon the presence of few or many vessels, the darkness of the night and the rate of speed. i Blanchard v. N. J. Steamboat Co., 50 N. Y., 292; 3 Ñ. Ý. §. C. (I. & C.); 771; The St. John, 7 Blatch., 220; The Syracuse, 9 Wall., 672. 2 Malcomson v. Gen. Steam Nav. Co., 4 English (Moak), 133; The Velocity, Law Rep., 3 P. C., 44, 49. 3 The Warrior, 4 English (Moak), 603; Morton v. Hutchinson; The Falkland and the Kestrel, 4 English (Moak), 191. 4 Whitehall Transp. Co. v. N. J. Steamboat Co., 51 N. Y., 569. 5 The Farragut, 10 Wall., 3341; Thorp v. Hammond, 12 Wall., 403; 10 How. U. S., 557; Blanchard v. N. J. Steamboat Co., 59 N. Y., 292, 6 The Iron Duke, 2 W. Rob., 377; Chamberlain v. Ward, 21 How U. S, 549, 192; N. Y. Transp. Co. v. Phila. Steam Nav. Co,, 22 How. U. S., 461 § 741. It is proper for us in this connection to indicate the sources of the rules of navigation. A rule emanating from the Trinity-House, although it does not constitute a law per se, is nevertheless regarded in England as a rule to be observed, having the approbation of the best masters, and being in most cases upheld by the court of admiralty.1 The Trinity-House was originally chartered and organized as a guild or fraternity, under a religious name, for the advancement of commerce and for the protection of ships and vessels by proper regulations. It began as a society of good sailors and experienced masters and nautical men, who were clothed with power to erect lighthouses and other seamarks along the coast, to appoint pilots to conduct ships in and out of the river Thames, to settle the rates of pilotage, and among other things to hear and determine certain complaints of officers and seamen, under an appeal to the court of admiralty. It has been from time to time. variously modified, and now acts in respect to the general subject of nav igation in a manner analogous to that of a board of merchants; its orders, without having the absolute and binding force of law, are treated as rules of good seamanship, of authority so far as, and because they are evidence of the customary laws and usages observed by men engaged in the business of navigation. The Trinity masters and brethren still serve as a kind of advisory jury to assist on trials in the court of admiralty.3 Recent regulations for preventing collisions at sea, made by a British order in council under an act of Parliament, have a more positive effect, like the rules prescribed by our act of Congress; and yet they are to be interpreted, like any other statute modifying, or in some cases rendering more explicit, the existing rules of navigation.5 4 § 742. The duty of sailing vessels crossing each other's track, has been reduced by statute to this expression: "When two sail-vessels are crossing so as to involve risk of collision, then, if they have the 1 The Duke of Sussex, 1 Wm. Rob. R., 274; The Velocity, Law Rep., 3 C. P., 4 English (Moak), 183, 187. 2 The society was chartered by Henry VIII., 1515, and established and confirmed under the name of the Master, Wardens and Assistants of the Guild or Fraternity of the Most Glorious and Undivided Trinity, and of St. Clement in the Parish of Deptford, Strand, in the County of Kent; and it was allowed to receive a certain duty from ships for the support of lighthouses. 31 Wm. Rob. R., 274; see McCullock's Dictionary; 4 English (Moak), 183, 187. 4 The "Regulations for preventing Collisions at Sea" were made by an or. der in council, under the Merchant Shipping Amendment Act of July 29, 1802. and act of Congress was passed in 1864. 5 The Johnson, 9 Wall., 146; Steamship v. Rumball, 21 How. U. S., 372, 383; ante § 739, § 734. wind on different sides, the vessel with the wind on the port side shall keep out of the way of the vessel with the wind on the starboard side, except in the case in which the vessel with the wind on the port side is close-hauled, and the other vessel free, in which case the latter vessel shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the vessel which is to windward shall keep out of the way of the vessel which is to leeward." Under this rule, it being the duty of one vessel to keep out of the way, the other vessel is to keep her course; subject only to this qualification, that due regard must be had to the dangers of the navigation, and to the special circumstances which may render a departure from the rule necessary to avoid immediate danger. The combination of circumstances, in which two meeting vessels find themselves, may be extensively varied by the state and direction of the wind, and the relative position of the vessels towards the wind and towards each other; and hence the law of the sea is continually modified to meet these changing circumstances. The analogous law of the road yields to emergencies, but not to so great an extent. In one case the presiding Judge in a District Court took the testimony of experi enced navigators, to this effect: "In our answer to former questions, we have stated the rule or usage to be, that when two vessels are approaching each other, both having the wind free, and consequently the power of readily controlling their movements, the vessel on the larboard tack should give way, and thus each pass to the right. This rule should govern vessels too, sailing on the wind, and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward, that if both persist in their course the other will strike her on the leeward side abaft the beam, or near the stern, in such case, the vessel on the starboard tack must give way, as she can do so with greater facility and less loss of time and distance thar. the other. These rules are particularly intended to govern vessels approaching each other, under circumstances that prevent their course and movements being readily ascertained with accuracy; for instance, in a dark night or dense fog. At other times, circumstances may render it expedient and proper to depart from them; for we consider them all subordinate to the rule prescribed by common sense, and applicable to all cases, under any circumstances, which is that every vessel shall keep clear of every other vessel when she has the power to do so, notwithstanding such other may have taken a course not conformable to established usage. We can scarcely imagine a case, in which it would be justifiable to persist in a course, after it had become evident that collision would ensue, if by changing such course the collision could be avoided." The Trinity-House regulations are of authority for the same reason as decisions at common law; not as making, but simply recognizing the existing law of usage and custom. The decision of a court is the higher and more solemn evidence, but still only an evidence or witness of what the law is. In other words, the Trinity-House regulations do not purport to enact, but to state certain rules as recognized and established by the usages of navigation.3 § 743. When two sailing vessels meet, having the wind fair, the rule is, that each is to pass on the larboard hand. But if a vessel is going close-hauled to the wind, and another meeting her is going free, the rule at sea is, for the vessel meeting her to go to leeward; and the reason of it is, that otherwise the vessel going to windward would lose her position, and could not get in again, without another tack, and it would be an inconvenience to her, and not to the vessel going free. But the yessel having the wind may either go to leeward or windward, as she best can; she is bound to suppose, as a general rule, that the vessel going to windward will keep her position; that is to say, the ship which is going to windward, is to keep to windward, and the ship that has the wind free is to bear away. It is but a modification of this rule, that a yessel sailing before or with the wind, should make way for one that is sailing by or against it. For the law imposes upon the vessel haying the wind free or fair, the obligation of taking proper measures to get out of the way of the vessel that is close-hauled, and of showing that she has done so, and if she does not, the owners of it are responsible for the loss which ensues. As vessels that meet at sea may be crossing each other's track in every conceivable direction, it is impossible that any single rule should embrace all cases. But the principle animating these rules of navigation seems to be, that each vessel shall do its endeavor to avoid collision, and that that vessel shall give way or heave about to avoid the danger which can do so most easily and with the least inconvenience or loss of time. On this ground, a vessel sailing with a fair wind and moving 7 1 Lowry v. Steamboat Portland, 1 Law Rep., 313, 318, A. D. 1839. 2 Duke of Sussex, 1 W. Rob. R., 274; 2 Kent's Comm., 230. 3 The Friends, 1 W. Rob. (N. A.) R., 478. Handaysyde and others v. Wilson and others, 3 Carr. & Payne R., 528. 6 The Woodrop Sims, 2 Dodson's Rep., 83. 3 Kent's Comm., 230, 231; The Syracuse, 9 Wall., 672, |