210 Tug employed compulsorily. is responsible, and which are negligent only so far as they In some harbours (2) the local Act requires that the tug belonging to the harbour authority shall be employed, or, if not employed, shall be paid for by ships entering the harbour. There has been no decision as to the liability of the shipowner for damage done by his ship when in tow of such a tug. It would seem that the principle applied in the case of compulsory pilotage would exempt him from liability. The liability of the harbour authority would depend upon the question whether the crew of the tug are the servants or agents or not. In some cases the harbour tug is chartered and not owned by the harbour authority. The question whether the owner of a tow can by concontract with tracting with the tug-owner that he shall have entire control of the tow discharge himself from liability to a third ship for a collision between the tow and the third ship has not been decided. sions (a) as to the liability in Can towowner by tug-owner free the tow from liability to third parties? Having regard to the deci- (2) Cf. the Llanelly Harbour Act, 59 & 60 Vict. c. 186 (Local). (a) The Lemington, The Druid, The Tasmania, supra, pp. 83 seq. See further on this subject a pamphlet entitled "Maritime Lien," by the Hon. J. Mansfield, London, Stevens and Sons, 1889. other ships out of their owners' possession, it is possible that the tow may be held liable in Admiralty in such cases, though, as it seems, her owners are not liable at law. The practice of tug-owners, however, is not to enlarge, but to minimise, their responsibilities, and they frequently protect themselves by a special contract against the liabilities which the ordinary towage contract throws upon them. The terms of the towage contract in the case of The Tasmania are, it is believed, those upon which much towage is done; and under such a contract the tug-owner stipulates that he shall not be liable for damage to the tow even by his own servant's negligence, and also for an indemnity against damage done by the tow. Where there is no special contract, and those on board the tug are not servants or agents of the owners of the tow, we have seen that neither the tow nor her owners are liable (b). Where both tug and tow are in fault for a collision Tug and tow with a third ship, judgment goes against both ships in both in fault; judgment Admiralty, as it would at law go against the owners, for against both, jointly and the whole of the damage, jointly and severally. An severally. application to limit the judgment against each ship, tug and tow, to half the loss (as is the practice in America (c)) in the first instance, was in a recent case refused. The Admiralty rule of division of loss, as applied in this country, has, it was said, nothing to do with such a case (d). and tow. The case of collision between a tug and her tow presents Between tug no difficulty. Each vessel must exhibit ordinary care and seamanship in keeping clear of the other, and must discharge such obligations as the towage contract casts upon her. A schooner, in casting off from her tug, ran into her stern, by reason of her not porting and also by reason of the tug not starboarding, as was proved to be the custom in America. Both were held to be in fault (e). So a tug, (b) The Quickstep, supra, p. 205. (c) Infra, p. 214. (d) The Avon and The Thomas Joliffe, (1891) P. 7; The Englishman and The Australia, supra, p. 156. (e) The William W. Wood, 66 Fed. Rep. 601. Two tugs in charge of one ship. Responsibility for of tug. in assisting to dock a big liner, got too close to her propeller, which was being worked from time to time, and was struck by it. She was held to be in fault for being in such a position (f). Where two or more tugs are engaged in towing the same ship, difficult questions arise as to their respective liabilities for damage to or by themselves or the ship. In an American case where the ship was put ashore by the negligence of one or both tugs, both of which were acting under the command of the master of one of them, both were held liable (g). The responsibility for the employment of a tug, in employment ordinary cases, rests with the master, whether the ship is in charge of a pilot or not. But if the employment of a tug is necessary for the safety of the ship herself, or for the safety of other ships, the master would not be justified in refusing to employ a tug upon the pilot's advising him to do so (h). If a vessel in tow is under way when she ought not to be moving, as in a dense fog or in a crowded dock at night-time, the presence on board of a compulsory pilot would not exempt the owners from liability for damage done by her (i). American and tow. The decisions of the American Courts as to the duties law as to tug and liabilities of a tug and her tow are very numerous. They are not altogether consistent with the English cases, which were for some time dominated by the doctrineoften a misleading one-that the tug is the servant of the tow. The different character of much of the towage service in American waters, where large fleets of barges are constantly being navigated in charge of one or more tugs, probably accounts for the somewhat different view of (f) The City of New York, 54 Fed. Rep. 181. (g) The Arturo, 6 Fed. Rep. 308; where there is an interesting judgment of Lowell, C.J. (h) The Julia, Lush. 224; Burrell v. Macbrayne, 18 Sess. Cas., 4th ser. 1048; The Gertor, 7 Asp. Mar. Law Cas. 412. Cf. The Agamemnon, 1 Quebec L. R. 333 (duty of ship at anchor, and driving, to employ tug); The Arran, 9 Quebec L. R. 278 (cable parting). (i) See The Borussia, Swab. 94. the law taken by the American Courts. The law as to American the liability of tow and tug has been thus stated by the cases. Supreme Court: "Cases arise, undoubtedly, where both the tow and tug are jointly liable for the consequences of a collision; as where those in charge of the respective vessels jointly participate in their control and management, and the master and crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined where the tow alone would be responsible; as where the tug is employed by the master or owners of the tow as the mere motive power to propel their vessel from one point to another, and both vessels are exclusively under the control and direction and management of the master and crew of the tow. . . . . But whenever the tug under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel which, for the time being, has neither her master nor crew on board, from one point to another over waters where such accessory power is necessarily or usually employed, she must be held responsible for the proper navigation of both vessels. . . . . Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow on the ground that the motive power employed by them was in an unseaworthy condition, the tow, under the circumstances supposed, is no more responsible for the collision than so much freight (k). And it is not perceived that it can make any difference in that behalf that a part or even the whole officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel properly manned and equipped for the enterprise" (1). This statement contains a fuller and more correct exposi (k) Cf. The Alabama and The Gamecock, 2 Otto, 695. (1) Sturges v. Boyer, 24 How. 110. American cases. Tug alone liable. tion of the principles upon which the respective duties and liabilities of tug and tow are to be determined than can be gathered from the doctrine that the tug and tow are by intendment of law one ship, or that the tug is the servant of the tow. It was quoted and adopted by Sir James Hannen in The Niobe (m). In accordance with the principles here laid down, in some cases both tug and tow (n), in others the tug alone (0), or the tow alone (p), have in America been held liable for damage done to other ships by tug or tow. Where both the tug and her tow have been sued and held liable in Admiralty, the decree has gone against each of them for half the damages, with power for the plaintiff to have recourse against either of them for the balance, in case of failure of the other to pay her full moiety of the damages (2). The English Court has recently refused to adopt this practice (»). The following cases illustrate the application, in America, of the principles laid down in Sturges v. Boyer, supra : A barque and a schooner in tow of two tugs, and with their officers and crews on board, were navigating New (m) Supra, p. 207. (n) The Coleman and The Foster, Brown, Adm. 456; The Maybey and The Cooper, 14 Wall. 204; The Shubert and The Einar, 45 Fed. Rep. 497; The Alex. Folsom and The Mary B. Mitchell, 44 Fed. Rep. 932 (tug in fault for speed, tow for being under sail); The City of Alexandria, 31 Fed. Rep. 427. (0) Smith v. The Creole and The Sampson, 2 Wall. C. C. Rep. 485; The Ogemaw, 32 Fed. Rep. 919. Cf. The William, 4 Quebec L. R. 306. (p) The Cambridge, The Underhill, and The Chase, 4 Bened. 366; Cushing v. The Owners of The John Fraser, 21 How. 184; The Clarita and The Clara, 23 Wall. 1; The Galatea, 2 Otto, 439; The Imperial, 38 Fed. Rep. 614. In The R. B. Forbes, 1 Sprague, 328, and The Rescue, 2 Sprague, 16, the tug was held liable for collision between a tow, lashed alongside, and a third ship. (a) The Virginia Ehrman and The Agnese, 7 Otto, 309; The City of Hartford and The Unit, 7 Otto, 323; The Atlas, 3 Otto, 302; The Juanita, ibid. 337; The Sterling and The Equator, 16 Otto, 647; The Webb, 14 Wall. 474; Munks v. Jackson, 66 Fed. Rep. 571. (r) The Avon and The Thomas Joliffe, (1891) P. 7; The Englishman and The Australia (No. 1), (1894) P. 239. |