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both vessels and otherwise establish fault of the other vessel.

C. INEVITABLE ACCIDENT The second and more important principle for exoneration from liability available in admiralty law is inevitable accident. It does not mean a collision which could not by the greatest degree of care or skill have been prevented or one unavoidable under any circumstances. All that is necessary to constitute inevitable accident is that the collision could not be prevented under the existing circumstances by the exercise of ordinary care, caution, and maritime skill.

In the case of The MORNING LIGHT,20 Mr. Justice Clifford, quoting Dr. Lushington, said:

Inevitable accident ... must be considered as a relative term, and must be construed not absolutely but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution, and maritime skill."

In the case of The GRACE GIRDLER,22 the Supreme Court said:

Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances—*

Although the above definitions were made about one hundred years ago, they have withstood the test of time. One of the most recent cases in which inevitable accident was discussed was Atkins v. Lorentzen,2- decided in 1964. The court there stated that an accident is “inevitable" or "unavoidable" not only by an Act of God but also when all precautions reasonable to have been required have been taken, and the accident has occurred notwithstanding.25

The Atkins case involved a collision between the MARTHA ANNE and the CEARA. Both vessels were under command of harbor pilots. MARTHA ANNE was outbound and CEARA was inbound in the Mobile channel. Night had just fallen but the weather was clear and visibility was good with little wind. The vessels sighted one another at over two miles and maneuvered for a standard port to port passage. 20. 69 U.S. (2 Wall.) 550 (1865). 21. Id. at 560. 22. 74 U.S. (7 Wall.) 196 (1868). 23. Id. at 203. 24. 328 F. 2d 66 (5th Cir. 1964). 25. The court cited with approval Gilmore & Black, Admiralty 396


At three-hundred feet it appeared that the passing would be perfect at a distance of between seventy-five to one-hundred feet in the fourhundred foot wide channel. At that point, however, MARTHA ANNE took a light and then a heavy sheer to port heading into collision. Her attempts to break the sheer and the evasive maneuvers by CEARA were to no avail.

In an attempt to rebut the presumption of negligence resulting from MARTHA ANNE'S sheer she raised the defenses of inscrutable fault and inevitable accident. She admitted that she sheered and admitted that the cause was unknown. She contended that whatever was the cause it could not have resulted from her negligence. The court summarily rejected the de fense of inscrutable fault holding that “without knowledge of the cause of the accident, it cannot be said that it surely resulted from the fault of one of the parties; hence, the doctrine of inscrutable fault has no application." 26

MARTHA ANNE posited that there were only three possible causes for the sheer: suction, mechanical failure, or navigational error (bad helmsmanship). Under the facts the court concluded that suction could not have caused the sheer. As for mechanical failure, the evidence adduced failed to show mechanical failure. Furthermore, the court said “assuming that there was a latent defect in the steering mechanism, the MARTHA ANNE presented no evidence of any maintenance or comprehensive servicing of the mechanisms from which to infer due care.” 27

The court found that the cause of the sheer and resulting collision was the bad helmsmanship and that MARTHA ANNE failed to sustain her heavy burden not only to overcome her presumption of negligence but also to show her freedom from negligence which was required to find that the collision resulted from inevitable accident.

A review of the older cases decided in this country establishes that a number of collisions resulting in a finding of inevitable accident prob ably would not be so decided by the courts today. This does not mean that the test of reasonableness under the circumstances has been changed. What it does mean, however, is that what was reasonable then is not necessarily reasonable now.

For example, in The MORNING LIGHT, 28 an overtaking vessel collided with the vessel ahead because she could not see her in the darkness, and the Supreme Court found that the collision 26. Atkins v. Lorentzen, supra note 24, at 69. 27. Id. at 70. 28. Supra note 20.

was an inevitable accident. The changes in the rules as to lights and as to speed in reduced visibility would undoubtedly lead to a different result at the present time.

A true Act of God is a valid defense and a resulting collision will be held the result of inevitable accident. Such occurrences include earthquakes, unforeseen storms or floods or other natural but unexpected phenomena. It is of course also essential that the resulting accident could not have been protected against by that degree of reasonable care and attention which the situation demanded.

When collision is due to high winds parting the lines of a moored or anchored vessel, the defense of inevitable accident will be allowed only when there was no negligence on the part of those in charge of her. There is a presumption of fault on a vessel drifting from her moorings and she is liable unless she can produce evidence to show that the drifting was a result of inevitable accident which human skill and precaution and a proper display of nautical skill could not have prevented.29

A sudden summer storm with winds increasing from twenty to sixty miles per hour causing a vessel to part her moorings was held not to be an unusual occurrence at that season of the year and was neither catastrophic nor of so unusual a character that resulting damage was a case of inevitable accident. The steamship involved was found to have failed to discharge her heavy burden of proof as to proper moorings and proper precautions in the face of the threatened storm.30

A hurricane is not necessarily an Act of God such as to relieve a vessel of liability under the doctrine of inevitable accident. Hurricane Hazel of 15 October 1954 was not considered an Act of God by the court in the case of Moran Transportation Corporation v. New York Trap Rock Corporation.31 The progress of the hurricane had been widely publicized by press and radio reports for several days. The libellant sued to recover damages resulting from the sinking of its deck scow while under charter to the respondent. The charterer contended that the damage was due solely to an Act of God, i.e., Hurricane Hazel. The court rejected respondent's contention since respondent's personnel had repeated warnings and ample opportunity to shift the scow to a safer berth which was available.

The defense of inevitable accident does apply when collision results from a failure of machinery if collision could not have been avoided by the use of reasonable care, caution, and skill. However, unexplained failure of a vessel's engine does not necessarily warrant a finding of inevitable accident. 32

If a collision results from the failure of a ship's engine or steering apparatus the defense is upheld only if the proof is convincing that the defect was really latent and that it could not have been discovered by the exercise of due diligence.

Of particular importance in cases of machinery malfunction is the requirement that the malfunctioning part be preserved and that it be produced at the trial. In LACKAWANNA,33 as LACKAWANNA and SHENANDOAH were about to pass starboard to starboard, LACKAWANNA's stern sheered sharply to starboard causing her to collide with SHENANDOAH's tow. LACKAWANNA's main defense was inevitable accident, alleging that the sheer was caused by two defective bolts. The bolts, although removed by a ship's officer, were not produced at the trial. The court held that there was a lack of proof that all possible causes had been accounted for and accordingly refused to exonerate the vessel from liability.

When the real cause of improper movements is not shown, a vessel seeking the defense of inevitable accident must show with respect to each possible cause, that the effect could not have been avoided by the use of care, caution, and skill. On the other hand, where the cause is shown, all that is necessary is to show that the cause could not have been avoided by due diligence or reasonable care.

Each case must of course be decided on its own merits. Unless a respondent can establish that the accident occurred despite due diligence and a proper display of nautical skill, the defense of inevitable accident will not be allowed.

Since inevitable accident presupposes that there is no fault, there is no liability since liability is based upon fault. As in the defense of inscrutable fault, the loss remains where it falls and each side is responsible for its own damage.

The United States Navy is the world's largest shipowner and operator. In the past, some collisions and other incidents involving naval vessels have been caused by inevitable accident, i.e.,

(Continued on page 141) 32. Oil Transfer Corp. v. Atlantic Tankers, Ltd., 194 F. Supp. 920

(S.D. N.Y. 1960), 1961 A.M.C. 420, aff'd 297 F. 2d 367 (2d Cir.

1962, 1962 A.M.C. 389. 33. 210 Fed. 262 (2d Cir. 1913).

29. General Public Warehouse Co. v. Queen Line, Ltd., 177 F. Supp.

916 (E.D. Pa. 1959), 1959 A.M.C. 2423. 30. Swensen v. The ARGONAUT, 204 F. 2d 636 (3d Cir. 1953), 1953

A.M.C. 1585. 31. 194 F. Supp. 599 (S.D, N.Y. 1961), A.M.C. 1836.



WHEN TWO OR more individuals partici

HEN TWO OR more individuals participate in the perpetration of a criminal offense as accomplices, a situation occasionally arises wherein it is virtually impossible to secure a conviction against anyone involved without the testimony of at least one of the participants. Since each accomplice involved is protected against self incrimination by the Fifth Amendment 1 and, if he is in the armed forces, by Article 31,2 each has an absolute right to remain silent about the offense.

The means whereby we are able to pierce this wall of silence is a grant of immunity to one or more of the participants.

Although we may not like the idea of one participant going unpunished, while his co-participants are convicted on his testimony, such is generally considered to be a far better result than for all to go unpunished. Furthermore, in most crimes involving two or more participants, although technically all may be guilty of the offense, the conduct of one of the participants will usually be less reprehensible than that of the others. It is, of course, the minor offender who should be given a grant of immunity in order that the principal offender or offenders may be brought to the bar of justice.

Prior to the Uniform Code of Military Justice, there appears to have been, in the Naval Establishment, some repugnance to obtaining necessary testimony from one suspected of an offense by granting immunity. Despite this attitude, Naval Courts and Boards of 1923 and 1937 contained the following language:

Testimony of an accomplice, . . The convening authority may promise not to prefer charges against one Lieutenant Colonel Detrio received his BBA and LL.B. degrees from the University of Miami, Coral Gables, Florida. He is admitted to practice before the United States Supreme Court, the Supreme Court of the State of Florida, the Federal District Court for the Southern District of Florida, and the United States Court of Military Appeals. Lieutenant Colonel Detrio is presently an Appellate Government Counsel in the Office of the Judge Advocate General of the Navy. 1. U.S. Const., Amendment V. 2. UCMJ, art. 31, 10 USC 831. 3. CMO 1–1945, 14, Where it appeared that two prosecution wit

nesses had been promised immunity, it was stated: “Whether or not it is the policy of some law enforcement agencies of the government to offer inducements to those charged with crimes for favorable testimony, it is not a policy that the Navy is obliged to follow. In fact, it is a procedure that has no place in the administration of military justice and warrants the unmitigated denunciation of the Navy Department."

man on consideration of his testifying, but this should only be done when absolutely necessary to prevent the defeat of justice and when the accomplice is a participant in the crime to a minor degree.

Under the Uniform Code of Military Justice, there is, at the present time, no question but that the granting of immunity, in an appropriate situation, has a definite place in the administration of military justice.

Immunity, to be effective, may be granted only by an officer exercising general court-martial jurisdiction over the one to be granted the immunity. This does not mean that it is necessary to wait until charges are forwarded to an officer exercising general court-martial jurisdiction before immunity may be granted. The necessity for a grant of immunity, in order to obtain required information or testimony from an accomplice, may become apparent at any stage during the administration of military justice, from preliminary investigation right on up to a courtmartial. The Manual of the Judge Advocate General provides that a recommendation that a certain witness be granted immunity from prosecution may originate with the trial counsel in cases referred for trial, the pre-trial investigating officer conducting an investigation upon preferred charges, the counsel or recorder of any other fact-finding body, or the investigator when no charges have been preferred. It is therefore important that all concerned be familiar with this valuable weapon in the fight against crime in the armed forces.

A grant of immunity need only be considered for a prospective witness who has a right to remain silent as to an offense for which he could be prosecuted. If a prospective witness has already been tried for the offense involved and his trial, including appellate review thereof, is complete, whether convicted or acquitted, he is no longer subject to criminal liability for the offense and may be compelled to testify about the offense without the necessity for a grant of immunity.? In some instances an accomplice may, out of conscience or hope of reward, voluntarily waive his right against self-incrimination and fully re

4. Naval Courts and Boards, 1923, sec. 435; Naval Courts and

Boards, 1937, sec. 236. 5. MCM 1951, par, 148e; JAG Manual, sec. 0109; United States v.

Thompson, 11 USCMA 252, 29 CMR 68 (1960). 6. JAG Manual, sec. 0109. 7. 8 Wigmore, Evidence sec. 2279 (McNaughton rev. 1961).

veal the details of the offense, thus making a grant of immunity unnecessary. In other instances, an accomplice may present a pre-trial agreement for a lenient sentence in consideration of which he will not only plead guilty at his own trial, but will also testify as a witness for the Government in related trials, thus making a grant of immunity unnecessary. In this connection, it must be remembered that, unlike a grant of immunity, a pre-trial agreement must originate with the accused or his counsel.8

If a grant of immunity is considered appropriate, it should be in writing and care should be exercised in the wording. The Manual of the Judge Advocate General contains a sample form for a grant of immunity and it should be closely adhered to. Normally, the fact that a witness has been granted immunity does not affect his competency as a witness, although it can be used as a means of attacking his credibility.10 Where, however, an attempt is made to condition the grant of immunity upon the witness testifying in a specific manner the grant of immunity is contrary to public policy and the witness granted the immunity has been held to be incompetent while he labored under its burden.11 In United States v. Stoltz and United States V. Kinney, which were related cases, the grant of immunity which was condemned as contrary to public policy required the individual granted the immunity to include in his testimony certain matters from his written pre-trial statement, which matters were set forth verbatim in the grant of immunity.

A witness who has been granted immunity is expected to testify fully and truthfully about the matter as to which he has been granted immunity, and any deviation from the truth will subject him to a charge of perjury, the same as any other witness. His immunity from prosecution only goes to the matter as to which he was granted immunity, and does not make him immune from prosecution for subsequently committed offenses.

It is now quite definitely settled in military law that the officer exercising general courtmartial jurisdiction who grants immunity to a prosecution witness is thereafter disqualified from acting as a reviewing officer on the case in question either as convening authority or as

supervisory authority. Likewise, the staff legal officer, upon whose recommendation and advice the officer exercising general court-martial jurisdiction granted immunity, is precluded from conducting the post-trial staff legal officer's review on the record in question.18 The granting of immunity to a prosecution witness does not, however, disqualify the officer exercising general court-martial jurisdiction from referring the case to trial. His staff legal officer would also not be disqualified from rendering pre-trial advice in the case.

The theory of disqualification is that one who grants immunity to a prosecution witness or who is instrumental in having a grant of immunity issued to a prosecution witness is thereafter precluded from conducting an unbiased, impartial, review of the case in which the witness testified. Although the exact issue has not been decided, it would appear that if the convening authority of a special court-martial, who is not authorized to convene a general court-martial, were to recommend or request to the officer who does exercise general court-martial jurisdiction that immunity be granted to a necessary prosecution witness, and such immunity were granted, the convening authority would thereafter be precluded from reviewing the case the same as the officer who actually granted the immunity. It is suggested that in such a situation, the post-trial review should be conducted by a different convening authority as well as a different officer exercising general court-martial jurisdiction.

If the testimony of an accomplice is acquired by a convening authority by means of entering into a negotiated plea of guilty with the accomplice, the same theory of disqualification applies. The United States Court of Military Appeals has considered such a pre-trial agreement as a form of immunity, and the review of the trial at which the accomplice testifies must be conducted by officers not involved in the pre-trial agreement with the accomplice.15

For years there were many who questioned the effectiveness of grant of immunity from an officer exercising general court-martial jurisdiction to fully protect the one granted immunity from self-incrimination. The question arises in the event the matter involved not only constitutes an offense against the Uniform Code of

(Continued on page 141) 12. United States v. White, 10 USCMA 63, 27 CMR 137 (1958);

United States v. Moffett, 10 USCMA 169, 27 CMR 243 (1959). 13. United States v. White, supra note 12; United States v. Cash,

12 USCMA 708, 31 CMR 294 (1962).
14. United States v. Moffett, supra note 12.
15. United States v. Gilliland, 10 USCMA 343, 27 CMR 417 (1959);

United States v. Donati, 14 USCMA 235, 34 CMR 15 (1963);
United States v. Winborn, 14 USCMA 277, 34 CMR 57 (1963).

8. SECNAVINST 5811.1, Subj: Pre-trial agreements as to guilty

pleas in general courts-martial; SECNAVINST 5811.2, Subj:

Pre-trial agreements as to guilty pleas in special courts-martial. 9. JAG Manual, sec. 0109. 10. United States v. Taylor, 5 USCMA 775, 19 CMR 71 (1955);

United States v. Brown, 7 USCMA 286, 22 CMR 76 (1956). 11. United States v. Stoltz, 14 USCMA 461, 34 CMR 241 (1964);

United States v. Kinney, 14 USCMA 465, 34 CMR 245 (1964).



THE CURRENT (1948) International Regu

HE CURRENT (1948) International Regulations for Preventing Collisions at Sea-commonly called the International Rules of the Nautical Road—were reviewed at the International Conference for the Safety of Life at Sea, held at London in 1960.1 As a result of that Conference, a new set of the International Rules was drafted. The Conference at the same time requested the Intergovernmental Maritime Consultative Organization (IMCO) to fix a date on and after which the new Rules should be effective. This latter body has the responsibility of coordinating the changeover from the current to the new Rules, as well as the duty of selecting a simultaneous date for rendering the Rules effective when substantial unanimity among the nations concerned had been achieved. Substantial unanimity having been achieved, the IMCO has set 1 September 1965 · as the date when the 1960 International Rules of the Road will become effective, replacing the 1948 Rules.

The United States enacted enabling legislation 3 to make such Rules binding on all public and private vessels of the United States when the President should by proclamation declare the New Rules effective. By Proclamation No. 3632, dated 29 December 1964, the President proclaimed the effective date of the New Rules to be 1 September 1965.

It is true enough, as outlined in the Department of the Navy's comment on the changes when initially proposed, that "the 1960 Regulations do not constitute a radical departure from existing regulations." 4 Nevertheless, there are a number of significant developments in the New Rules which will have upon many of our naval vessels a marked effect, the legal consequences of which it may be helpful to consider in advance of enactment of the New Rules. This is what is

understood by preventive law practice.

Concerning the Annex to the Rules, containing Recommendations on the Use of Radar, and doubtless the most important feature of the New Rules, a number of excellent articles in various publications have discussed this aspect of the New Rules at some length. There is no intention herein to review this area except to state that the Recommendations are generally in accordance with current Navy practice at sea. It may be relevant to comment, however, on what is perhaps the most interesting legal question raised concerning the Recommendations themselves. In an apparent effort at incorporation by reference, the conference placed the Recommendations in an “Annex to the Rules", referring to them by new Preliminary Note 2, under Part Cof the Rules, "Sound Signals and Conduct in Restricted Visibility.” Assumptions on how the U.S. courts, which have in the past construed the Rules to give them the strength of religious dogma, will deal with this novel approach can only be speculative. However, it is likely that they will construe the Recommendations only as establishing a standard of care required of vessels in navigation, violation of which will be one of the factors considered in the determination of negligence.

The purpose of this article is to consider those more important features of the New Rules, exclusive of the radar recommendations, which may be expected to be of particular concern to naval vessels on the high seas. Thus, an analysis of the impending changes reveals that, in addition to improved rephrasing of a number of awkwardly worded rules and the radar recommendations, there are approximately forty changes introduced into the New Rules. Of these, it is considered useful that five in number should be identified for the benefit of our Commanding Officers as most likely to succeed in producing legal effects of particular interest to Naval vessels.

The changes thus to be considered, in the order of their appearance in the New Rules, with

Captain Newbould is currently Commanding Officer, U.S. Naval Security Station, Washington, D.C. His previous duties include: U.S. Navy Liaison Officer to United States Senate and House of Representatives; Assistant Chief of Staff, Administration, Commander-inChief, U.S. Naval Forces, Europe; as well as Commanding Officer of e submarine, a destroyer and an oiler. Captain Newbould has lectared and written extensively on maritime-legal subjects. A graduate of the U.S. Naval Academy and of George Washington University Law School, Captain Newbould is a member of the Virginia State Bar. 1. Final Act, International Conference on Safety of Life at Sea,


10, Oct. 1964, p. 167. 3. Act 24 Sept. 1963, Pub. Law 88–131, 77 Stat. 194. 4. 1963 USC Cong. and Admin. News 902, 908.

5. Reyff, Legal Consequences of the New Rules of the Road, Pro

ceedings of the Merchant Marine Council, Vol. 18, No. 2 (Feb. 1961), p. 31; Wylie, Radar and the Rules of the Road, Proceedings of the Merchant Marine Council, Vol. 19, No. 4 (Apr. 1962), p. 63; Healey, Radar Decisions Re-examined, 18 JAG J. 223

(Feb.-Mar. 1964). 6. Watts v. United States, 123 Fed. 105 (S.D. N.Y. 1903).

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