Quote:
Originally Posted by Tempest
|
This is interesting...here is the citation from the decision:
Appellant next contends that no passing signal need have been
sounded by the MALASPINA because the special circumstances rule
permitted a departure from the ordinary rules of the road. The
special circumstances rule, however, has been construed as arising
only in those dire situations when adherence to the ordinary rules
would place the vessels in certain danger. The rule as set forth
in 33 U.S.C. 212, Article 7, Inland Rules, states as follows:
"In obeying and construing these rules due regard shall
be had to all dangers of navigation and collision, and to
any special circumstances which may render a departure
from the above rules necessary in order to avoid
immediate danger." (emphasis added)
It is Appellant's theory that the rule applies to this case because
as many as 16 small pleasure boats were present in Olga Strait when
the MALASPINA approached the southeast entrance. After the
MALASPINA sounded one long blast, however, her projected course was
cleared by all but two of the small vessels. As already set forth
in the findings of fact, there then followed a period of time
during which the MALASPINA was in an overtaking situation to the
FOREST. It was at this point that the proposal to pass ought to
have been sounded, and the special circumstances rule cannot be held to apply since, at this point, there was no evidence of
immediate danger to justify a departure from the established rules.
Furthermore, there was no evidence that Appellant did not have time
to give the required signal and wait for an assent. In The
MAGGIE J. SMITH, 123 U.S. 349 (1987) the Supreme Court held that
the special circumstances rule does not apply to vessels in
ordinary navigation which sight each other at an ample distance.
In Griffin on Collision, 228, p. 516, the author states that
the special circumstances rule "is not to be treated as a license
to disobey the ordinary rule when the navigator takes it in his
head to do so. There must be a sudden danger or an
unexpected development." (emphasis added) When the proposal
to pass should have been sounded, the FOREST was one of only two
small vessels in the channel. She was sighted from an ample
distance, and I can find no reason which would justify application
of the special circumstances exception.
Appellant cites The PAVONIA, 26 Fed. 106 (1885) for the
proposition that the special circumstances rule does apply to this
case. However, the court in The PAVONIA held only that if two
ferryboats which often pass each other, having adopted a method of
doing so understood and acted upon by both navigator, it may be
considered a special circumstance. There is no evidence that the
MALASPINA and the FOREST had adopted a passing agreement to this
effect. Therefore, the holding in The PAVONIA is not relevant
to Appellant's case.
I think this actually supports what I said earlier. The Special Circumstances claim was denied because the M/V Malaspina was subject to the overtaking rules and respective sound signals--for which it failed to comply. Special Circumstances are situations that requires the vessel to depart from the The Rules. In this case the court rules no circumstances existed that met the definition of Special Circumstance.
FYI--I am not a lawyer and admittedly there a lots of grey areas in this type of law.
Connect with Facebook
