402

TOWAGE, A SERVICE OF MERIT,

tended with danger, or extraordinary labor or risk to the steamer. These and similar distinctions and circumstances deserve very careful consideration; for on the one hand, it would be exceedingly detrimental to owners . to have to pay, without adequate cause, for more than the accustomed towage service; and, on the other, it would be unjust to the owners and crews of steam vessels, and detrimental to the general interests of commerce, for the vessels and men to incur extraordinary risk for a reward proportionate only to ordinary service."

Substantially, this exposition was again sanctioned in 1853, by the same high authority in the case of the Medora, supra.

In the Batavia (1 Spinks, 169), it appeared that the main shaft of a passenger steamer was broken. She was conducted by a tug ninety miles from London to Holland. A tender of £175 was made and refused; but the tender was pronounced sufficient by the Admiralty Court; and the towage or salvage libellants condemned in costs.

The rule for costs has been already referred to; and, upon that question, may be consulted the following authorities: The Emma, 1 W. Rob. 16; and also The Queen, The Chancellor, The Commodore, and The Albatross, all cited in a note to The Batavia (1 Spinks), 175, and decided in 1853.

The Harriet (1 Spinks, 180,) was towed by the brig Sheriton Grange one thousand miles, and after fourteen or fifteen days, at length reached Plymouth in safety. The salved property was worth £3,800; and the sum awarded for salvage was £800.

Towage has been occasionally a subject of contract;

SOMETIMES EXALTED TO A SALVAGE SERVICE. 403

but without or with contract, it is a service of such merit, at times, that no fixed stipulated compensation can be adequate remuneration for its merit, or properly fixed in advance. The service may be performed by tugs of small size and light draft, or by larger and more powerful steamers of corresponding value and efficiency. The celerity and success with which the service may be performed by large steamers, entitles such steamers to compensation commensurate with the service rendered. In such cases, more than mere towage will have been rendered; and accordingly, extra compensation should be awarded. Indeed the towage service may be raised to the rank of salvage service; and it would be discretionary with the admiralty judge to award a suitable percentage or an aliquot part of the value of the property relieved or rescued. And in fixing such amount, the court should duly consider the hazards possibly incurred by the steamer employed to serve in towing. Sometimes it is in the day-time, but it may be done at night. It may be in rough or smooth water; in safe or dangerous navigation; with many or no vessels on the route; at the hazard of collision or otherwise; with or without a pilot. And if it be borne in mind, that the tug or tow-boat, of any description, in case of collision, may be held responsible for damage occasioned thereby, it will strongly commend a towing steamer to enhanced remuneration.

There are several English cases and of a quite recent date, which may profitably be consulted and will be here referred to. The Galatea, Swab. 349; The Martha, Lush. 314; and The White Star, 1 Adm. & Eccl. Rep. 68.

But more particular reference will be made to the

404

CASE OF R. B. FORBES, A TOW-BOAT,

American case of the R. B. Forbes (1 Spr. 328); as calculated to show in a strong light, the danger which a steam-tug or tow-boat may incur in aiding a vessel in or out of a frequented thoroughfare or crowded harbor, while performing the service of towage at customary towage rates.

The Romance of the Seas, a 1,600 ton sailing ship, was being towed out of Boston Harbor by a steamer of 350 horse-power (the two being lashed together side. by side), when they collided with the Eliza, a lumber laden schooner, which was, on the 4th of June, 1856, beating up the harbor.

The collision took place between Long Island Light and the Castle.

The owners of the schooner libelled the R. B. Forbes for damage, and the question was whether the steamer Forbes could be held responsible?

For the defense, it was urged that the towing steamer was the mere motive power, the servant, in fact, of the ship; that the whole control of both the ship towed, and the steamer towing, was in the owner of the ship, and, consequently, the ship or her owner were alone liable.

Judge Sprague said: "It is to be observed that the ship had no motive power of her own. Her sails were furled, and whatever motive power she had was imparted to her by the steamer. The only separate motion which the ship could have, would be such lateral motion as might result from a change of her rudder. The ship and steamer were so lashed together as to constitute one moving mass, whose momentum was the result of the steamer's motive power, acting upon the aggregate bulk and weight of both ship and steamer.

SHOWS THE EXTREME LIABILITY OF SUCH BOATS. 405

The steamer had the control of the ship; and if there was negligence in causing the collision, the steamer must be held liable.

"The fact that the steamer was hired for the service of towage, can make no difference. This is a proceeding in rem, and not in personam. Generally, in a suit in rem, no regard is had to the ownership. One great benefit of such proceeding is, that the law puts its hand on the offending thing; and, without inquiring who is the proprietor, gives a remedy in favor of the injured party, against the vessel itself which has caused the damage.

"It has been contended that the steamer was under the control of the officers, or of the pilot of the ship. But, if such were the fact, it would not exonerate the steamer, nor affect her liability, as to third persons."

With such extreme liability, it is not surprising that cases of much merit should be marked by allowing extra reward; thus exalting the service above the level or rank of a common and ordinary towage. And, therefore, it happens that men, engaged in the useful occupation of towage, may, under extraordinary cir cumstances of danger and difficulty, render such signal service to persons and property in peril, as to command the respect and commendation of all just and considerate judges in admiralty.

406

PLEA OF ANOTHER SUIT PENDING,

CHAPTER XVII.

LIS PENDENS.

THE pendency of another and prior suit for the same cause of action, and between the same parties, is good ground for defense, and should be taken advantage of by demurrer or in abatement.

The allegations usually are that the prior suit is still pending, that the object of both suits is the same, the parties the same, and the judgment or decree (if any) will be the same in each case.

The more recent of admiralty decisions is the case of the Lanarkshire, 2 Spinks, 189. In England, a suit in rem was instituted for the recovery of seamen's wages; in Canada, another suit in personam was brought for the same cause of action, and the owners of the ship appeared in the suit in England and pleaded prior suit pending in Canada; and this plea (lis alibi pendens) was adjudged a good bar, as the owners would be ultimately liable in both suits, if both should be allowed to be prosecuted to final judgment.

There are two maxims which have a special significance when applied to the subject of this chapter. The one concerns the State, the other concerns the citizen; but both are calculated (if observed) to promote the public welfare and individual security. The former is "Interest reipublicae ut sit finis litium," and the latter is,