dock to exhibit lights, she must of course comply with such requirements.1

By rule 12 of the rules of 1864,2 as supplemented by the rules adopted by the board of supervising inspectors, "coalboats, trading-boats, produce-boats, canal-boats,oyster-boats, fishing-boats, rafts or other water-craft navigating any bay, harbor or river by hand-power, horse-power, sail or by the current of the river, or which shall be anchored or moored in or near the channel or fair-way of any bay, harbor or river, shall carry one or more good white lights, which shall be placed in such manner as shall be prescribed by the board of supervising inspectors of steam-vessels." This rule requires all small craft moored near a navigable channel to exhibit a light, but is not applicable to vessels moored at a wharf or dock out of the regular channel for passing boats. However appropriate it may be for vessels moored at a dock, out of the regular course of passing vessels, to exhibit lights at night, there is nothing in maritime regulations requiring it.3

1 Shields v. Mayor, 18 Fed. R. 748; channel. The Alabama, 26 Fed. R.

Culbertson

Newb. 461.

V.

Southern Belle,

866.

Where a coal-barge was made

In Case v. Perew, 46 Hun, 57, it fast to the bank at a plantation was held that plaintiff's omission

to have his boat, lying at a pier, ex

hibit ordinance,

the light required by a city
was a fact for the con-

on Bayou Lafoursche, La., and failed to carry a bright light as required by Revised Statutes, section 4233, it was held she could not re

sideration of the jury, on the cover for damages sustained by ground of plaintiff's negligence, collision. The St. John, 54 Fed. R. but that such omission was not 1015.

negligence per se.

3 Where a vessel is moored along

2U. S. R. S., sec. 4233. See rule side others attached to a dock or pier, no light is required, especially

10 of

the rules for navigation of

the Great Lakes, and rules of su- if such place is set apart for such pervising inspectors, pages 72, 80.

purposes. Culbertson v. Southern

Where a derrick-boat at a pier Belle, 18 How. 584; L'Hommedieu was run into by a steamer at night v. The Mischief, 39 Fed. R. 510. and had failed to exhibit a light as required by rule 12, it was held kind is fastened for the night at a that she could not recover dam- landing place to which other boats

ages,

Where a boat or vessel of any

although the colliding may have occasion to make a land

steamer was not in the regular ing in the night, it is prudent that

The in

Sec. 39. Exhibiting torch or flare-up light. ternational rules of 1890 provide that "a vessel which is being overtaken by another shall show from her stern to such last-mentioned vessel a white light or a flare-up light.""

3

"Every vessel may, if necessary in order to attract attention, in addition to the lights which she is by these rules required to carry, show a flare-up light, or use any detonating signal that cannot be mistaken for a distress signal.": The rule of 1885 as to the exhibition of flash-lights is the same as article 10 of the rules of 1890. The rules of 1885 limit its use to vessels being overtaken. Those of 1890 extend its use to every situation where it may be necessary to attract the attention of an approaching vessel, whether it approaches from astern or elsewhere.

The rules governing the navigation of the Great Lakes provide that "sailing-vessels shall at all times, on the approach of any steamer during the night-time, show a torch upon that point or quarter to which such steamer shall be approaching."4

The international rules of 1885 and 1890, it will be observed, differ somewhat from the old rule, and from the rules governing the navigation of the Great Lakes, on this subject. By the old rules, in force prior to the adoption of the international rules of 1885, every sailing-vessel was required to show a lighted torch from that quarter to which a steam-vessel might be approaching. The rule limited the exhibition to sailing-vessels on the approach of a steamvessel. The present international rules are broader in scope, and require every vessel, whether steam or sail, to exhibit a white light or a torch from its stern on the approach of any other vessel astern, whether such overtaking vessel be steam or sail. The old rule permitted a flash-light or torch to be her position should be designated

by a light, on her own account as well as on account of others making a landing. Ure v. Cobbman, 19 How. 56.

126 U. S. Stat. at L. 320, art. 10.

226 U. S. Stat. at L. 320, art. 12. 323 U. S. Stat. at L. 440, art. 11. 4 Rule 11. See rules governing navigation of Great Lakes, page

72.

5 U. S. R. S., sec. 4234.

used only when overtaken. The new rules permit its use under any and all circumstances to attract attention, when a vessel has reason to believe its other lights are not observed or its presence known. Under which circumstances, the new rules are quite as positive in their requirement that a white light or torch be exhibited as was the old rule; and under the rules of 1890 it may be exhibited from any portion of the vessel affording the best facilities for its observation. Under the rule of 1885 the flare-up must be exhibited from the stern. It is only where it clearly appears that its exhibition could not have served any useful purpose, or given any additional information, that the omission is immaterial.2 The international rule of 1890 permits a steady white light to be carried permanently astern. "This white light may be fixed and carried in a lantern, but in such case the lantern shall be so constructed, fitted and screened that it shall throw an unbroken light over an arc of the horizen of twelve points of the compass, namely, for six points from right aft on each side of the vessel, so as to be visible at a distance of at least one mile. Such light shall be carried as nearly as practicable on the same level as the side-light." Rule 3 (e) for the Great Lakes, providing for a range-light, practically amounts to the same.

When a fixed stern-light or range-light is carried, the exhibition of a flash-light is not required in the case of overtaking vessels, except where it becomes apparent that the stern-light is not observed, when the flash-light or torch should be used. In the absence of the fixed white light astern,

the

statute of 1890 makes the exhibition of a white light or

flare-up compulsory, whether the leading vessel is observed

The Algiers, 38 Fed. R. 526; celsior, 12 Fed. R. 203; The Algiers, Kennedy v. The Sarmatian, 2 Fed. 21 Fed. R. 345; The Pennland, 23

R. 916; The Golden Grove, 13 Fed. Fed. R. 556; The Hercules, 17 Fed.

R. 686.

R. 606; 20 Fed. R. 205; The Mar

The Oregon, 27 Fed. R. 757; The garet, 3 Fed. R. 870; The TonaLeopard, 2 Low. 241, 238; Farwell wanda, 3 Fed. R. 588.

V. The J. H. Starin, 2 Fed. R. 100;
Oder, 8 Fed. R. 172; The Ex-

The

326 U. S. Stat. at L. 320, art. 10.

or not. Under the rules of 1890 the flare-up may be exhibited as well by the overtaking as the overtaken vessel. Under the 1885 rule and the rules for the Great Lakes, only overtaken vessels are permitted to exhibit the light; unless indeed it may be said to be the duty of a vessel to use any means it has at hand to attract attention, where collision is imminent. In such cases, if a flare-up or torch will better render its position known than any other means, it clearly becomes its duty to use it, irrespective of the statute.

The rules for the Great Lakes conform more nearly to the requirements of the old rules of 1864, limiting the use of the flare-up to sailing-vessels on the approach of a steam-vessel. It would seem that the rule is defective, in that it does not embrace all classes of vessels in any situation, where the display of a flash-light may be necessary. No good reason can be urged why any other vessel should not be required to display the light as well as a sailing-vessel, and no reason is apparent why the light should not be displayed when a sailing-vessel is overtaking, as well as when the overtaking vessel is a steamer. The 1890 international rules recognize this, and have made it applicable on the approach of any vessel. The rules of 1885 repealed those of 1864 and subsequent years, so far as sea-going vessels are concerned.1

Under the old rule requiring the overtaken vessel to exhibit a flare-up light when approached, whenever it became apparent that such flash-light was not observed and that collision was likely to follow, it was the duty of such vessel, irrespective of the statute, to give warning by any detonating signal of danger or any other means at its command, or that good seamanship or ordinary prudence would suggest;" so that the rule of 1890 is but a declaration of the duty that every overtaken vessel owes to the one following, in the absence of such statutory provision.

1 The State of California, 49 Fed. R. 172: The Haverton, 31 Fed. R. 563; Wise v. The Carrie F. Bronson, 8 U. S. App. 1; The Lepanto v. Bennett, 50 Fed. R. 234.

2 Kennedy v. The Sarmatian, 2 Fed. R. 916; The Samuel H. Crawford, 6 Fed. R. 906; The Anglo Indian, 33 L. T. (N. S.) 233; The Stranger, 44 Fed. R. 815.

In order to charge an overtaken vessel with a violation of the statute, in not exhibiting a torch or white light, the approaching vessel must exhibit the proper lights, or such lights that the vessel ahead may know that it is being approached,' unless it appears that the leading vessel has knowledge of the approach, when it becomes her duty to show a flare-up, or use detonating signals to warn the approaching

ship.

The

requirement of the statute as to the display of a flare-up or torch by an overtaken vessel does not dispense with any of the other requirements of diligence on the part of the overtaking ship, to keep a careful lookout, and to keep out of the way of the vessel ahead. Though the leading ship fail to display the statutory lights or give proper warning of her presence, the burden of proof is on the one overtaking to show that she used all reasonable diligence to avoid the leading vessel, where it seeks to recover for such failure to exhibit proper lights on being overtaken.2 Neither an overtaken nor an approaching vessel has any right to disregard the rule as to flash-lights, or any other means that may be at hand to convey intelligence of its proximity, when there is any reason to apprehend that she is not observed. Each must take proper measures to make its presence known, when occasion requires, or take the consequences of such failure. By article 2 of the regulations of 1885 a vessel is forbidden to display a flare-up light to an approaching vessel except when being overtaken, and such exhibition must be from the stern. By the rule of 1890 the

3

The New Orleans, 9 Ben. 303.

229.

Fed. R. 911; The Frank P. Lee, 30

The City of Merida, 24 Fed. R. Fed. R. 277.

In the case of Farwell v. The

The Elenora, 17 Blatch. 88; The John H. Starin, 2 Fed. R. 100, it Narragansett, 11 Fed. R. 918. The Algiers, 38 Fed. R. 526.

was held that section 4234 of the United States Revised Statutes,

The Oder. 21 Blatch. 26; The requiring sailing-vessels at night Excelsior, 39 Fed. R. 393; The Al- to show a light on that point or giers, 21 Fed. R. 343; The Kirkland, quarter towards which a steam2 Hughes, 208; The Sarmatian, 2 vessel is approaching, applied only