boat at the time of the alleged wrong and injury were acting within the scope and line of their authority. Non constat these servants were at the time and place acting in utter disregard of authority of the master, in which event no responsibility could attach to the master on account of their negligent operation of the steamboat. In the case of Lampkin v. Louisville & N. R. R. Co., 106 Ala. 287, 17 South. 448, the plaintiff was a passenger on defendant's train, and while a passenger was assaulted by a brakeman on said train. It was held in that case that the facts stated in the complaint were sufficient, without stating in terms that the employé by whom plaintiff was assaulted was acting within the scope of his duties. In Woodward Iron Co. v. Herndon, 114 Ala. 191, 21 South. 430, that suit was brought under the employers' liability statute, and the court ruled that where the complaint averred that the engineer was in charge and control of an engine, which he was at the time running over a track of the company's, this was prima facie sufficient to show that he was in the discharge of his duties under such employment. The facts in the case before us, we think, differentiate the case from the foregoing cases cited and relied on by the appellant. In the Lampkin case (106 Ala. 287, 17 South. 448), the relationship of carrier and passenger is shown, with the duties and responsibilities attaching to such relation under the law, and the further fact is shown that the assaulting party was an employé and brakeman on defendant's train. In the Woodward Iron Co. case (114 Ala. 191, 21 South. 430), the suit being under the employers' liability statute, the court ruled that the averments in the complaint as to superintendence, etc., were within the terms. of the statute. In the case before us no relationship existed between the plaintiff's intestate and the defendant, and the suit is for a common-law liability, and not under the statute. In Postal Tel. Co. v. Brantley, 107 Ala. 683, 18 South. 321, it is said: "The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred or fairly inferred from the nature of the employment and the duties incident to it." In the plaintiff's complaint it is not charged that the defendant was guilty of negligence, but the negligence complained of was that of defendant's servant. We think it perfectly clear that the defendant. 87 could not be made liable for any acts of her servants done by them without the scope of their employment, and not by her authority. If these servants undertook to operate her steamboat down the river without her authority, she could not be made liable for their wrongful acts. This being true, it follows, in order to fix a liability upon her for negligent conduct of the servants, it should be averred and shown that they were acting with her authority or within the scope and line of their employment. Finding no errors in the ruling of the court on the demurrers, the judgment appealed from will be affirmed. Affirmed. Weakley, C. J., and Haralson and Denson, JJ., concur. THE DUTIES REQUIRED OF TWO OR MORE VESSELS ON NAVIGABLE WATERS TO AVOID INJURING EACH OTHER AND THEIR OCCUPANTS. I. Scope of Note, 39. II. Degree of Care Required. a. In General, 40. b. Fault of One Vessel will not Relieve the Other from Want of Due Care, 41. III. Care Required of Steamers as to Speed, 42, IV. Duty to Keep Lookout. a. On Forward Part of Vessel, 43. b. Astern, 46. V. Duty of Vessels Moving in Fog, 46. VI. When Vessel Ought to be Stopped, 47. VII. Duty of Sailing Vessels to Keep Their Course, 48. VIII. Duty of Steamers to Keep Out of Way of Sailing Vessels, 48. IX. Duty of Overtaking Vessel to Keep Out of Way, 49. X. Duty of Vessels to Exhibit Lights, 50. XI. Duty of Moving Vessel to Avoid One at Anchor, 50. XII. Duty of Vessel at Anchor, 51. XIII. Duty of Vessel Entering Harbor, 51. XIV. Duty of Vessels When Passing Through Narrow Channels, 52. XV. Duty of Vessels When Approaching a Bridge, 52. XVI. Duty of Vessels to Answer Signals, 52. XVII. Duty of Vessels Leaving Slip, 52. XVIII. Duty of Larger Vessels to Avoid Imperiling Smaller Craft by Swells. a. In General, 53. b. Rowboats, 58. I. Scope of Note. It is the purpose of this note to discuss the duties which are required of those intrusted with the management of two or more ves sels on navigable waters to avoid injury to the vessels and their occupants not only by collisions, but also to embrace the duties which larger vessels owe to smaller craft (including rowboats) to avoid imperiling the smaller craft by their swells. As this latter branch of the subject has not been heretofore much noticed by law-writers, it will be given considerable attention in this note. In connection with this note, see the note on collisions attached to Broadwell v. Swigert, 45 Am. Dec. 51, and the note attached to Baker v. Lewis, 75 Am. Dec. 601. For the duty of ship owners to seaman, see the note attached to Scarff v. Metcalf, 1 Am. St. Rep. 812, and the note attached to Gabrielson v. Waydell, 31 Am. St. Rep. 805. II. Degree of Care Required. a. In General. The ever-increasing amount of travel by water, as well as the fact that a large part of the world's products is transported by means of navigation, makes the question of the duty required of those intrusted with the navigation of vessels, for the protection of life and property, one of prime importance. Certain rules and regulations regarding the management of vessels intended to guard against accidents and to protect persons and property on navigable waters have been adopted by nearly all the great nations of the world. But a technical observance of these rules will not absolve those in charge of such vessels from avoiding accidents, for the maritime law recognizes that an observance of these rules is not always sufficient, and has wisely adopted as its paramount rule that accidents must be avoided, and is therefore rigid in exacting unremitting care and vigilance on the part of those intrusted with the navigation of vessels, and any negligence, inattention, or want of skill resulting in injury to person or property will entitle the sufferer to compensation: Baker v. Lewis, 33 Pa. 301, 75 Am. Dec. 598, and note; The Petrel, Fed. Cas. No. 2261, 6 McLean, 491; The Clytic, Fed. Cas. No. 2913, 10 Ben. 588; The D. S. Gregory, Fed. Cas. No. 4103, 16 Blatchf. 542; The Lincoln, Fed. Cas. No. 8354, 1 Low. 46; Mills v. The Nathaniel Holmes, Fed. Cas. No. 9613, Bond, 352; Ward v. Ogdensburgh, Fed. Cas. No. 17,158, Newb. 139; Western Ins. Co. v. The Goody Friends, Fed. Cas. No. 17,436; The Alicia A. Washburn, 19 Fed. 788; The Nacoochee, 22 Fed. 855. Perhaps the best illustrations of this rule are found in those cases. where the plea of inevitable accident was interposed by the vessel alleged to be at fault. In The Nacoochee, 22 Fed. 855, it was held that a collision beween two vessels in a fog could not be justified on the plea of inevitable accident unless it appeared that both vessels had endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the accident. In The Clarita, 23 Wall. 1, 23 L. ed. 146, Mr. Justice Clifford said: "Such a defense [inevitable accident] can never be sustained where it appears that the disaster was caused by negligence. . . . Unless it appears that both parties have endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the collision, the defense of inevitable accident is inapplicable to the case.'" And in The Morning Light, 2 Wall. 550, 17 L. ed. 862, and The Pennsylvania, 19 Wall. 125, 22 L. ed. 148, the doctrine is plainly stated that an inevitable accident is only one which could not be prevented by the exercise of ordinary care, caution and maritime skill. b. Fault of One Vessel will not Relieve the Other from Want of Due Care.—When a vessel sees danger of a collision, she is bound to use every means in her power to prevent it and to abate the consequences, although the other vessel was at fault: Carlisle v. Holton, 3 La. Ann. 48, 48 Am. Dec. 440; The Vim, 12 Fed. 906; The B. & C., 18 Fed. 543; The Garden City, 19 Fed. 529. And this rule prevails no matter what the prior fault of the other vessel may be: The Scioto, Fed. Cas. No. 12,508; The Maria Martin, 12 Wall. 31, 20 L. ed. 251; The Warren, 18 Fed. 559; The Pegasus, 19 Fed. 46. Hence in Cummins v. Spruance, 4 Harr. (Del.) 315, it was held that a vessel, though out of her proper place, was not to be run into with impunity if she could be avoided by the exercise of ordinary care and skill. And this rule was adopted in Moore v. Moss, 14 Ill. 106, where a vessel was not only out of her proper course, but in the course of the other vessel. In The Farmer v. McCraw, 26 Ala. 189, 62 Am. Dec. 718, it is said: "Because a flat boat runs at night when she should not, or ties up in the wrong place, would not justify a steamboat in running into her, any more than a stagecoach would be justified in willfully or carelessly running over a man lying asleep in the road; and in all such cases if the act causing the injury could have been prevented by the use of ordinary care, the failure to use it will render the party liable. There is no inflexible rule either of the river or the road, the neglect of which by one party will dispense with the exercise of common caution by the other." It was undoubtedly the rule at common law that where a collision was due to the fault of both vessels, neither could recover for the resulting injury, for, as was said by Lord Tenterden, in Vanderplank v. Miller, Moore & M. 169, "The question is whether you think the accident was occasioned by the want of care on the part of the crew of the Robert and Ann. If there was want of care on both sides, the plaintiffs cannot maintain their action; to enable them to do so, the accident must be attributed entirely to the fault of the crew of the defendant.' "" But in its desire to establish as paramount law the rule that accidents must be avoided, and to impose greater caution on the part of those in charge of a vessel to avoid a collision even when the other vessel is grossly at fault, the admiralty law of both England and this country is, that if there is fault on the part of both vessels, neither is excused, but the loss must be equally borne. Thus in sels on navigable waters to avoid injury to the vessels and their occupants not only by collisions, but also to embrace the duties which larger vessels owe to smaller craft (including rowboats) to avoid imperiling the smaller craft by their swells. As this latter branch of the subject has not been heretofore much noticed by law-writers, it will be given considerable attention in this note. In connection with this note, see the note on collisions attached to Broadwell v. Swigert, 45 Am. Dec. 51, and the note attached to Baker v. Lewis, 75 Am. Dec. 601. For the duty of ship owners to seaman, see the note attached to Scarff v. Metcalf, 1 Am. St. Rep. 812, and the note attached to Gabrielson v. Waydell, 31 Am. St. Rep. 805. II. Degree of Care Required. a. In General. The ever-increasing amount of travel by water, as well as the fact that a large part of the world's products is transported by means of navigation, makes the question of the duty required of those intrusted with the navigation of vessels, for the protection of life and property, one of prime importance. Certain rules and regulations regarding the management of vessels intended to guard against accidents and to protect persons and property on navigable waters have been adopted by nearly all the great nations of the world. But a technical observance of these rules will not absolve those in charge of such vessels from avoiding accidents, for the maritime law recognizes that an observance of these rules is not always sufficient, and has wisely adopted as its paramount rule that accidents must be avoided, and is therefore rigid in exacting unremitting care and vigilance on the part of those intrusted with the navigation of vessels, and any negligence, inattention, or want of skill resulting in injury to person or property will entitle the sufferer to compensation: Baker v. Lewis, 33 Pa. 301, 75 Am. Dec. 598, and note; The Petrel, Fed. Cas. No. 2261, 6 McLean, 491; The Clytic, Fed. Cas. No. 2913, 10 Ben. 588; The D. S. Gregory, Fed. Cas. No. 4103, 16 Blatchf. 542; The Lincoln, Fed. Cas. No. 8354, 1 Low. 46; Mills v. The Nathaniel Holmes, Fed. Cas. No. 9613, 1 Bond, 352; Ward v. Ogdensburgh, Fed. Cas. No. 17,158, Newb. 139; Western Ins. Co. v. The Goody Friends, Fed. Cas. No. 17,436; The Alicia A. Washburn, 19 Fed. 788; The Nacoochee, 22 Fed. 855. Perhaps the best illustrations of this rule are found in those cases where the plea of inevitable accident was interposed by the vessel alleged to be at fault. In The Nacoochee, 22 Fed. 855, it was held that a collision beween two vessels in a fog could not be justified on the plea of inevitable accident unless it appeared that both vessels had endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the accident. In The Clarita, 23 Wall. 1, 23 L. ed. 146, Mr. Justice Clifford said: "Such a defense [inevitable accident] can never be sustained where it appears that the disaster was caused by negligence. .... Unless |