Tug injured by negligence of another tug towing same ship. Recovery by tug against tow. Limitation of tug-owner's liability. the conduct of the tow than is usual, it may be her duty to act without orders from the tow (d). The facts of The Tasmania (e) have been already stated. The collision there was between the tug and her tow, and was caused by the fault of the master of the tug, who was the servant of the charterer and not of the owner of the tug. It was held that the tug was not liable in rem because the tug-master, the wrong-doer, was not the servant of the owners of the tug, and because the charterers and the tug were by the terms of the towage contract protected from liability for negligence of the tug-master. In an unreported case a tug, A., towing a vessel, B., was struck and injured by the tow-rope of another tug, C., which was ahead of A., and also towing B. It was held that the damage was caused by the fault of C. in having too long a scope of tow-line out, and also by the fault of A. in not keeping clear of the tow-line (ƒ). The rule of division of loss appears to have been applied. For injury the tug receives herself, or for damages which she is compelled to pay in respect of a collision between herself and a third ship, she cannot recover against the tow, unless the collision was caused by improper orders, or otherwise by the negligence of the tow. Where she could herself have avoided the collision, had she exercised ordinary care, she clearly could not recover against the tow merely on the ground that the latter gave no orders (g). For we have seen that under certain circumstances it is her duty to keep clear of other ships without waiting for orders from the tow. The liability of the owner of the tug for damage done to the tow by improper navigation of the tug in the performance of the towage contract, is limited by the statute in this as in other cases of collision (). (d) See The Isca, 12 P. D. 34. (g) See The Sinquasi, 5 P. D. 241. (h) Wahlberg v. Young, 24 W. R. 847; 45 L. J. C. P. 783. the salved for collision and salvor. The owners of a ship that takes another in tow are not Owners of a the less liable for a collision between the two ships, caused salvor towing by the negligence of the towing-ship, because she is engaged ship are liable as a salvor or quasi-salvor. The steamship Thetis fell in between with The Sardis in a disabled state. The master of The salved ship Thetis agreed to tow the latter to port. He had received no instructions from his owner as to offering towage or salvage service to other ships, but the policy of insurance effected upon The Thetis, and her bills of lading, contained provisions as to her performing such services. In attempting to take The Sardis in tow The Thetis negligently ran into and sank her. It was held that the master of The Thetis was acting within the scope of his employment in undertaking to tow The Sardis, and her owners were held liable for the collision (i). common em ployment does not apply as between tug and servants In one case it was contended that, the tug being the Doctrine of servant of the tow, the doctrine of common employment (k) applied, as between the tug and the servants of the owners of the tow, so as to prevent the owners of the tug recovering against the tow and her owners damages for a collision between tug and tow caused by the fault of the tow. This argument did not succeed (1). For a collision caused by the fault of the tug in taking an improper number of vessels in tow either between the vessels in tow, or between one of them and a stranger, the owners of the tug would primâ facie be liable to the owners of the tow upon the towage contract (m). It is not unusual for tug-owners to relieve themselves from this liability by expressly contracting that they shall not be answerable for the negligence of their servants on board the tug (n). The mere fact that one of the vessels in tow strikes and damages another vessel in tow, raises no presumption of negligence on her part. It was so held where the leading (i) The Thetis, L. R. 2 A. & E. 365. (k) Priestly v. Fowler, 3 M. & W. 1. (1) The Julia, Lush. 224. (m) See The United Service, 8 P. D. 56; 9 P. D. 3. (n) The United Service, ubi supra. of owners of tow. Improper number of ships in tow. With whom the command rests where vessel in tow took the ground, and the following vessel ran into her (o). Where two or more ships are in tow of the same tug, and no agreement has been come to between them and the more than one tug as to which ship is to have the command, it has not vessel is in tow. Admiralty jurisdiction in case of negligent towage. been decided with whom the command rests (p). But it has been held in such a case that one of the ships in tow could not recover against the tug for damage caused by being under way in a thick fog when they ought all to have brought up. It was assumed by the Court that it was the duty of the ship in tow to give the order to bring up (q). Where two vessels were in tow of the same tug, without objection on the part of that one of them which was nearest the tug, and this vessel took the ground and was run into by the other astern, it was held that she could not recover against the vessel that ran into her (»). In a Canadian case (s) a sailing ship in tow with her sail set, was held in fault for a collision with an overtaking and passing steamship, against which she was driven by another ship in tow of the same tug striking her on her quarter. The tug can be sued in rem for damage to the ship in tow received in a collision caused by negligent towage, whether such damage is sustained by the tow in a collision with a third ship or with the tug (t). And the tug may be sued in Admiralty for damages which the tow has been compelled to pay to a third ship for a collision caused by the fault of the tug (u). (0) See Harris v. Anderson, 14 C. B. N. S. 499. (p) The Gipsy King, 5 Not. of Cas. 282. (q) Smith v. St. Lawrence Tow Boat Co., L. R. 5 C. P. 308. (r) Harris v. Anderson, 14 C. B. N. S. 499. 87. (s) The Farewell, 8 Quebec L. R. (t) The Nightwatch, Lush. 542; The Julia, ib. 224. (u) The Energy, L. R. 3 A. & E. 48. It seems that the Admiralty Court has jurisdiction in a claim for damage caused by negligent towage, whether such damage is received in a collision or not: see sup. pp. 27, note (u), 85. The Admiralty jurisdiction of the United States Courts includes all claims arising out of towage contracts: 2 Parsons on Ship. (ed. 1869), 176, 188; The Webb, 14 Wall. 406. Attempts have been made to try the question between Third party tug and tow, as to the ultimate liability for collision with procedure. a third ship by means of the third party procedure under the Judicature Act. The existing rules do not enable a third party to be brought in for such a purpose (~). (x) See Ord. XVI. r. 48; infra, p. 319. CHAPTER IX. ships; collision in foreign waters. FOREIGN SHIPS-FOREIGN LAW-FOREIGN JUDGMENTS. Law applic- IN collision cases where one or both the ships are foreign, able to foreign questions frequently arise as to the law applicable to the case, and particularly as to the application of British statutes to foreign ships. The general rule is that municipal laws are binding upon the subjects of the state by which they are enacted everywhere, but upon foreigners only when they are within its jurisdiction (a). The principle which governs questions of jurisdiction and remedies has been thus stated: "In regard to the merits and rights involved in actions, the law of the place where they originated is to govern but the forms of remedies, and the order of judicial proceedings, are to be according to the law of the place where the action is instituted, without any regard to the domicil of the parties, the origin of the right, or the country of the act " (b). Before the passing of 25 & 26 Vict. c. 63, foreign laws, and the general maritime law, touching the steps to be taken to avoid collision, and the extent of the shipowner's liability, differed from the law of this country, and questions of difficulty arose in the case of collisions where one or both ships were foreign as to the law applicable to the case. By the Act above mentioned it is provided, with (a) As to the limits of British jurisdiction, see The Saxonia and The Eclipse, Lush. 410; The Annapolis and The Johanna Stoll, Lush. 295; Regina v. Keyn, The Franconia, 2 Ex. D. 63: of Admiralty jurisdiction, infra, p. 209. (b) Story's Conflict of Laws, Ch. 14, § 558, 7th ed. p. 702; and see Donn v. Lippman, 5 Cl. & Fin. 1. So a foreigner in France suing for a collision is subject to the disabilities (fin de non recevoir) of the Code de Commerce, Arts. 435, 436; Abordage Nautique, Caumont, §§ 82, 83. |