CHAPTER IX. TUGS AND TOWS. Sec. 121. Relation of tug to tow.- In the early history of maritime jurisprudence in this country there was much uncertainty as to the exact relation of a tug to its tow. Among the early decisions the courts were disposed to consider the tug merely the servant of the vessel towed, and that the latter was responsible for the acts of its agent, the tug.1 This doctrine, however, was disapproved in the case of Sturgis v. Boyer, where the supreme court say: "Whenever a tug, under charge of her own master and crew, and in the usual and ordinary course of such 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 motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels." This case was decided upon facts that have been thought insufficient to establish a rule so general in its character as the language of the court would indicate. In this case the tug was in entire control of the tow, whose officers were not aboard; and it has been urged that under different conditions, as when the officers and crew of the tow are present and participate in its management, the doctrine in this case would be modified. In the case of The Dorris Eckhoff, Judge Brown, of the southern district of New York, after an exhaustive examination of the subject, concludes that the supreme court in the case before cited did not intend its language to be applicable to any other conditions than those presented by the case at bar, and that where the tow is 1 Smith v. The Creole, 2 Wall. Jr., 485; The Sampson, 3 Wall. Jr., 14. 2 24 How. 110. officered and manned by its own men, and in their charge, a different rule prevails. The learned judge says: "A more difficult question is, whether the schooner is to be held jointly answerable for the damage caused. The injury was received by the schooner while she was navigating in an unlawful place. Upon the general principles and analogies of the maritime law, the schooner, as the offending thing, would be held in fault, and answerable to third persons, where her navigation was faulty and the injury did not happen by inevitable accident. Looking to the maritime law alone, the mere fact that the owners might not be chargeable with personal fault, or themselves stand in any relation of personal responsibility, would not exempt the ship, which is regarded by the maritime law as responsible to third persons for her proper navigation, by whomsoever conducted. As respects third persons injured by the faulty navigation of a vessel, it is immaterial what arrangement the owners of the offending vessel may have made in respect to her navigation, whether by a master and crew engaged by themselves, or by a master and crew engaged by a charterer, to whom the vessel may have been let by a contract of charter, or by a tug-boat, with which the owners may have contracted for the navigation of the vessel from one place to another. This rule is applied without question in cases of charter-parties, where the possession of the ship is delivered to the charterers, who navigate her on their own account exclusively, through persons employed by them, without any right of selection or control by the owners. In all such cases the ship, to her whole value, is chargeable for any faults in her navigation or management that causes injury to herself or to other vessels or to the cargo of either. It is no defense to the ship that those having charge of her are in no respect under the direction or control of the owners. The ship is regarded as the offending thing, to which persons suffering from her management and navigation are entitled to look for redress, and the owners of the ship must look for their indemnity to the persons in whose charge they have voluntarily placed her. So the faults of a pilot compulsorily taken are by the law of this country faults of the ship, for which the ship is held answerable in damages. The analogies to be drawn from these undoubted cases of charter-parties, and from the well settled law of this country holding the ship responsible for the faults of a pilot compulsorily taken on board, would seem to favor the right of third persons to look for redress directly to the ship that does the damage, though a tow, leaving the owners of the latter to their legal remedy against the tug, in whose charge they have placed her. There are also important practical considerations of general policy and justice which would sustain this claim of third persons to resort to the offending ship, for otherwise the owners of large ships may escape all responsibility for the injuries inflicted upon other vessels by simply making a contract of towage, and when other vessels and their cargoes sustain great loss through the fault of the tug, since the tug is usually of comparatively small value, the injured parties, under the limited liability act, would have no adequate redress. It would seem to be just that the navigation of large vessels should not by this means be allowed to be conducted with comparative immunity for any damage inflicted on others, but that the tug should be held only the servant of the ship that employed her. The general direction of the course of the two vessels is determined by the tug; the tow follows her lead; but the tug, in directing her course out of the middle of the river, contrary to law, was at the same time violating her implied contract of towage. The tow was not bound to acquiesce, and to follow the tug, rather than obey the statute. A large vessel like the Flint has it in her power to control very considerably her own course and that of the tug; she is bound to exercise this power so far as she reasonably can when she is being directed illegally by the tug, to the imminent peril, as in this case, of other vessels. The Flint, by her master and crew, participated in navigating the vessel in a way that was contrary to the statute, and in a position that was plainly perilous to other vessels, and the master made no use of the means in his power to correct the error until too late." It is to be frankly admitted that the learned judge here gives some very cogent reasons why the vessel doing injury should be held liable in damages, regardless of the fact that it is in tow of another, to which added reasons might be given, among which is the greater care it would inspire in masters of tows to select only tugs of recognized power and completeness of equipment to conduct the movements of vessels where such vast property interests and the lives of multitudes of human beings are involved. The views expressed by the court in the above case were not concurred in by the circuit court of appeals; and it may be taken as settled that the above rule of liability does not prevail in this country, at least until the supreme court sees fit to modify its doctrine in the case of Sturgis v. Boyer; and that, so far as the proper navigation of the tug is concerned, the tow is not responsible, her duty being to follow the guidance of the former, to keep in its wake and conform to its directions.2 Sec. 122. Liability of tug.- Where a tug, in charge of its own master, in the ordinary course of its employment undertakes to tow another vessel from one point to another by the use of its own motive power, having entire control of the course and direction of the movements of the latter, it is responsible for the proper navigation of both; and where injury is received under such circumstances, the aggrieved party must look to the tug and its owners for compensation, and not to the tow.3 A tug, in profferring its services to another, impliedly rep 1 The Dorris Eckhoff, 50 Fed. R. Dorris Eckhoff, 50 Fed. R. 134; The 134. 2 The John Fraser, 21 How. 184; The Margaret, 94 U. S. 494: The Mabey and Cooper, 14 Wall. 204. 3 Sturgis v. Boyer, 24 How. 110; The John Fraser, 21 How. 184; The Martin Kalbfleisch, 55 Fed. R. 336; The Anglo-Australian Steam Navigation Co. v. Cornell Steamboat Co., 32 Fed. R. 798; The New York & Baltimore Transp. Co. v. Philadelphia, etc. Nav. Co., 22 How. 461; resents itself to be of sufficient power and equipment, and sufficiently well officered and manned to perform the services required, and that it is sufficiently well acquainted with the waters through which it is required to pass to conduct the tow in safety to its place of destination. It is also bound to know the general condition and nature of the craft seeking towage, the conditions of the weather, the natural obstacles to be met with, and to observe all other patent and wellknown conditions which effect the safety of the tow and that of others with whom it is liable to be brought into relation.1 It is not to be considered a common carrier in the usual acceptation of that term, and is not required to insure the safety of its tow other than against its own negligence, incompetence or misconduct, and is bound only to the exercise of reasonable skill and care in the execution of the task for which it is employed. As before stated, the law is well settled that a tow does not, by employing a tug, necessarily constitute the tug, or its master and crew, its agent in performing the service; that the tug, notwithstanding the contract of towage, is an independent vessel so far as its individual liability is concerned, and is liable for its acts of negligence. Where, however, the tow is not under the sole control of the tug, but is under partial control of its own crew, the sole responsibility of the tug depends upon the question of its sole negligence. Where the tow alone is at fault, it alone is responsible; where the tug alone is negligent, it must alone be held responsible; and where both are at fault, both are liable. As between the tug, its tow and a third vessel, the tug or tow, in addition to the right of action each may have against the other, may severally proceed against such third vessel contributing to the injury, irrespective of what the conduct of The Herbert Manton, 14 Blatch. 37; The Civilita, 103 U. S. 699; The City of Alexandria, 31 Fed. R. 427. 1 Hadden v. The J. H. Rutter, 35 Fed. R. 365; The Nettie, 35 Fed. R. 615; The Nicholson and The Adams, 28 Fed. R. 889; The W. H. Beaman, 45 Fed. R. 125; The Mascot, 57 Fed. R. 512; 48 Fed. R. 917. 2 The Annie Williams, 20 Fed. R. 866; The B. B. Saunders, 23 Blatch. 378; The City of Springfield, 29 Fed. R. 923; The City of Norwich, 8 Ben. 206. |