Germany, The law by which the shipowner's liability is limited to the value of the ship and freight has no application in the case of a collision between craft engaged in inland navigation. A distinction is drawn between collisions "maritimes" and "non-maritimes." In the one case the owner's liability is limited, in the other not :-" comme dans l'un, c'est la chose, autrement dit le navire qui répond plutôt le dommage, et dans l'autre, la personne;" Jurisprudence et Doctrine en Matière d'Abordage, par M. Sibille, pp. 7, 8. Arts. 451, 452 of the German Commercial Code; Art. 321 of that of Holland; Art. 7 of the Belgian Code; Art. 491 of the Italian; Art. 649 of the Russian (a); Art. 587 of the Spain, Italy, Spanish Code; and Art. 30 of the Egyptian Code de Com Egypt. merce Maritime, are similar in effect to the article of the French Code cited above. The corresponding Article (492) of the new Portuguese Code seems only to limit the owner's liability in respect of obligations arising out of contract: a doubt might be suggested as to whether this is not the effect of the Italian provision also (6). (a) The writer has been unable to examine the latest Russian code; but it is believed to be to the same effect as that referred to in the text. (b) As to some recent foreign codes, see p. 160, note (a), supra. CHAPTER VIII. TUG AND TOW. For some poses of the WHERE one ship is in tow of another, the two ships are, for some purposes, by intendment of law, regarded as one, the command or governing power being with the tow, and the motive power with the tug (a). Thus, for the purposes of the Regulations for prevent- For the puring collision, the tug and her tow are treated as one ship, Regulations. and that a steam or sailing ship according as the towing ship is under steam or not (b). But it is obvious that a tug with a ship in tow has not the same facility of movement as if she were unincumbered. She is not, in anything like the same degree, mistress of her own movements. She cannot, by stopping or reversing her engines, at once stop or back the ship in tow. In taking measures to avoid a third vessel she has to consider her tow; and a step that would be right, and take her clear, if she were unincumbered, may bring about a collision between her tow and the ship which she herself has avoided (c). Although, therefore, it is the duty of a tug with a ship in tow to comply, so far as is possible, with the Regulations for preventing collisions, it is also the duty of a third ship (a) The Cleadon, 14 Moo. P. C. C. 97; The American and The Syria, L. R. 6 P. C. 127, 132. (b) The Warrior, L. R. 3 A. & D. 553; The American and The Syria, ubi supra. The same has been held in America: New York, &c. Co. v. Philadelphia, &c. Co., 22 How. 461; The Ivanhoe v. The Martha M. Heath, 7 Bened. 213; The Cirilta and The Restless, 6 Whether tug and tow are one ship, so that one is affected by the fault of the other. The tug is the servant of the sion. to make allowance for the incumbered and comparatively disabled state of a tug, and to take additional care in approaching her (d). The principle that the tug and her tow are in law regarded as one ship has been applied in Admiralty so as to make one of them liable for a collision with a third ship caused by the fault of the other. Unless the actual wrongdoer in these cases is the servant or agent of the owner of the ship sued, the condemnation in Admiralty of the ship sued appears to conflict with the principle laid down in some of the cases (e), that the responsibility of the owner at law and the liability of the ship in Admiralty are always concurrent. We propose, therefore, to consider in some detail the respective liabilities at law of the owners of the tug and of the owners of the tow, and in Admiralty of the tug and of the tow, where there is a collision between the tug and a third ship, or between the tow and a third ship. It is a term of the ordinary towage contract that, as tow; meaning regards the conduct and navigation of the two ships, the of the expres- tug and those on board her shall obey the orders of those on board the tow (f). This relationship between the two ships is expressed by the saying, to be met with in some of the cases, "that the tug is the servant or in the service Tow liable in of the tow" (g). This expression has led to the tow being Admiralty for the fault of held in Admiralty responsible for the fault of those on board the tug; at least, where such fault leads to a collision between the tow and a third ship. her tug. In The Ticonderoga (h), a vessel in tow of a steamship, which by the terms of her charter-party she was bound to (d) The American and The Syria L. R. 6 P. C. 127; The La Plata, Swab. 220, 298. (e) A principle which has not always been adhered to: supra, p. 93. (f) Sec infra, p. 197. (g) See per Sir R. Phillimore in The Mary, 5 P. D. 14, 16; The Sinquasi, 5 P. D. 244; per Sir R. Collier in The American and The Syria, L. R. 6 P. C. 127, 132. (h) Swab. 215. employ, struck and injured a third ship. The collision was caused by the fault of those on board the steamship. It was held by Dr. Lushington that the tow was liable in Admiralty. "In cases of one vessel coming into collision with another, and the vessel proceeded against having been in charge of a steamer, there can be no doubt whatever that the vessel which has the steamer in her employ is responsible both for her own acts and those of the steamer" (i). A barque in tow of a tug was approaching the entrance of the Regent's Canal Basin. The tug, without orders from the barque (which was in charge of a compulsory pilot), improperly altered her course, and thereby caused. the barque to strike and injure the pier head. It was held by Sir R. Phillimore that the barque and her owners were liable: "The tug was the servant of The Sinquasi (the barque), and The Sinquasi is responsible for what the tug did" (k). It seems to have been held, also, that under the special circumstances of the case it was the duty of the tug to alter her course without waiting for orders from the tow. In The Bianca (1) it seems to have been assumed that the ship proceeded against, the tow, was responsible for the fault of those on board the tug. And in The American and The Syria Sir R. Collier stated the law to be that "the tug is in the service of the tow; the tow is answerable for the negligence of her servant, and is for some purposes identified with her" (m). It seems clear, therefore, that in Admiralty the tow is liable for a collision between herself and a third ship by the fault of those on board the tug; and further, that her liability is independent of the question whether those on board the tug are the servants of the owners of the tow, in the sense that the latter would be liable at law for the (i) Aliter in Canada, The William, 4 Quebec L. R. 306. (k) The Sinquasi, 5 P. D. 241. (1) 8 P. D. 91. (m) L. R. 6 P. C. 127, 132. Whether tow liable for collision between tug and third ship by fault of tug. Collision between tug negligence of the former. There seems reason to think that the habit of personifying the ship, which, as pointed out above, has produced confusion in other cases, has led to the condemnation in Admiralty of a ship in tow for the fault of those on board her tug, without sufficient consideration of the question whether the wrong-doer is a person for whose acts the owner of the ship sued is liable at law. The ratio decidendi in The Ticonderoga, The Sinquasi, and other cases above cited, seems to have been as follows: the collision was caused by the fault of the tug; the tug is the servant of the tow; therefore the tow is liable for the collision (). The soundness of this reasoning appears to depend upon the assumption that the ship with which the wrong-doer does the wrong, or on board which he happens to be when the wrong is done, is in Admiralty herself a wrong-doer—a proposition which, at the present day, there would be difficulty in establishing. Whether the doctrine that the tug is the servant of the tow, so as to make the latter liable for the negligence of the former, would be carried so far as to make her (the tow) liable in Admiralty for a collision between the tug and a third ship, has not been decided. It has been held that a ship may be sued and condemned in Admiralty for negligence on her part which causes a collision between two others (o); but it seems doubtful whether a tow, free from fault as regards those on board her, could be condemned for a collision between her tug and a third ship caused by the fault of those on board the tug, who were not in the employment of the owners of the tow. In the cases above considered the collision was between and third ship the tow and a third ship, and the action was against the tow. In the following case the collision was between the tug and a third ship. by fault of tug. (n) See also per Sir R. Collier in The American and The Syria, L. R. 6 P. C. 127, 132; The Mary Hounsell, 4 P. D. 204; supra, p. 57. (0) See The Sisters, 1 P. D. 117, and cases cited supra, p. 27. |