under control of its owners, and fails through their fault to follow the lead of the tug, there is no reason why, like a vessel under such circumstances, it does not become liable for its misconduct.

Sec. 138. Striving for precedence. In the sharp competition for business among towing vessels there is constant temptation to omit those prudential regulations necessary in the navigation of such dangerous instrumentalities. While the policy of the law is adverse to racing, and holds those so engaged as wrong-doers, it recognizes the spirit of legitimate enterprise in the activity of vessels in securing employment, and its policy is to encourage promptitude of service so long as it is conducted in such a manner as not to engender recklessness, and is conducted in compliance with those safeguards prescribed by the general regulations.

The established custom for the approach of a tug to a vessel requiring assistance is for the tug following the wake of the vessel to come up on the starboard side of the tow, and to continue alongside. A tug coming up at the same time from any other direction should round to and come up on the opposite side, so that the direction of the tug shall be the same as the direction of the tow.1

Where a tug is entitled to its position by the general rules of navigation the other must keep out of its way.'

proaching a narrow portion of the river, where the raft would occupy nearly all the channel, one of the tugs proceeded down stream to notify vessels below of the ap proach of the raft. It failed to notify the Athabasca, a large passenger steamer, whose smoke could be seen approaching from below. Proceeding, the latter, observing the descending tow, sheered over as far as possible to one side of the channel. The channel being so narrow that collision was inevitable, the steamer went through the

raft end on. Held, that it was a hazardous undertaking to take a raft of the size of the one in question down the Sault Ste. Marie river, and knowing the attending perils, the owners undertook the feat with all its attending perils, and must suffer the consequences resulting from their own misconduct; that the steamer was justified in taking the means necessary to protect itself from danger.

1 The Sturgis v. Clough, 21 How. 451.

2 The R. L. Maybey, 4 Blatch.

While courts recognize legitimate enterprise on the part of tugs seeking tows, they will not shield one wantonly imperiling the safety of another in striving for precedence.1

Sec. 139. Presumption of fault.- The presumption of law is that where a tow is brought into a situation where collision ensues, the tug is responsible. This is based upon the fact that the tug has control of its own and the other's movements, and the contract of towage imposes upon the tug the duty of avoiding situations where collision or injury to the tow may ensue. But where it is shown that the contract of towage was made in view of peculiar peril to be encountered by both the tug and tow, and that the liability for error in navigation was fully considered and submitted to as part of the risks to be borne by the tow, the ordinary presumption of negligence on the part of the tug is not such as to warrant a court in pronouncing it in fault without strict proof of the same by the party alleging.3

Mere proof of a loss suffered by a tow, however, does not alone raise a presumption of negligence against the tug in the absence of affirmative evidence of negligence.

88; The Jesse Spalding, 50 Fed. R. 583.

The E. D. Holton, 55 Fed. R. 1010; Latham v. Hamilton & Merriam Co., 63 Fed. R. 856.

In Slyfield v. Penfold, 66 Fed. R. 632, a schooner coming into a harbor signaled for a tug. Two rival tugs, the H. and the C., responded. The schooner accepted the services of the H., but after making a number of unsuccessful efforts to catch the tow-line, the schooner, which was then in danger of grounding, ordered the H. to leave and ordered the C. to come to its rescue; the H. backing in between the other and the schooner, causing it to ground. Held, that the proximate cause of the damage was the wan

ton conduct of the H., and that it was liable for the resulting damages.

2 The Delaware, 20 Fed. R. 797. 3 The Packer, 24 Blatch. 27; The Wm. Kraft, 33 Fed. R. 847.

4 The A. R. Robinson, 57 Fed. R. 667; The Webb, 14 Wall. 406.

Where the master of a tug had no license for the waters he was navigating, but the master of the tow had, and both the tug and tow were under his control, it was held that the fact that the master of the tug had no license raised no presumption of negligence contributing to the collision, the master of the tow skilfully performing the duties of both. The Charlotte, 51 Fed. R. 455.

CHAPTER X.

RIVER AND HARBOR NAVIGATION.

Sec. 140. The act of congress of February 18, 1895, provides that

"On and after March 1, 1895, the provisions of sections 4233, 4412 and 4413 of the Revised Statutes, and regulations pursuant thereto, shall be followed on the harbors, rivers and inland waters of the United States. The provisions of said sections of the Revised Statutes and regulations pursuant thereto are hereby declared special rules duly made by local authority, relative to the navigation of harbors, rivers and inland waters, as provided for in article 30 of the act of August 19, 1890, entitled 'An act to adopt regulations for preventing collisions at sea.'

"Sec. 2. The secretary of the treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearings or ranges, with light-houses, light vessels, buoys or coast objects, the lines dividing the high seas from rivers, harbors and inland waters.

"Sec. 3. Collectors or other chief officers of the customs shall require all sail-vessels to be furnished with proper signal-lights. Every such vessel that shall be navigated without complying with the statutes of the United States, or the regulations that may be lawfully made thereunder, shall be liable to a penalty of $200, one-half to go to the informer; for which sum the vessel so navigated shall be liable, and may be seized and proceeded against by way of libel in any district court of the United States having jurisdiction of the offense.

"Sec. 4. The words 'inland waters' used in this act shall not be held to include the Great Lakes and their connecting and tributary waters."

The passage of this act in effect restores the old rules of 1864, as amended, and as supplemented by the supervising inspectors' rules, on the harbors, rivers and inland waters of the United States, excepting the Great Lakes and their tributary and connecting waters.

Under the act of 1885 it was held that in the local navigation of harbors the old rules of 1864, supplemented by the inspectors' rules, were applicable; but that where the harbors were so situated as to be accessible directly from the sea, a vessel entering therefrom and proceeding through it to its destination continued to be governed by the international rules. Under the act of 1890 no such distinction can arise, as the act by its terms governs the navigation of all vessels of the United States "upon the high seas and in all waters connected therewith navigable by sea-going vessels." The act of February 8, 1895, however, places at rest all question as to whether the international rules have any application in harbor navigation. Under the statute of 1885 it often becomes a question of great difficulty to determine justwhere the international rules are suspended and those governing the navigation of harbors and rivers begin. Under the present statute the secretary of the treasury is authorized to designate and define lines dividing the high seas from rivers, harbors and inland waters, and when this is done all uncertainty will be removed.

Sec. 141. Western rivers - Inspectors' rule I — Right of way." When steamers are approaching each other from opposite directions, the signals for passing shall be one blast of the steamer's whistle to pass to the right, and two blasts of the steam-whistle to pass to the left. The pilot on the ascending steamer shall be the first to indicate the side on which he desires to pass; but if the pilot in the descending steamer shall deem it dangerous to take the side indicated

1 U. S. R. S., §§ 4233, 4412, 4413. 2 The Greenpoint, 31 Fed. R. 231; The Aurania and The Republic, 29

Fed. R. 98; The Excelsior, 33 Fed.
R. 554.

by the pilot of the ascending steamer, he shall at once sig nify that fact by sounding the alarm or danger-signal of three or more short blasts of the steam-whistle, and it shall be the duty of the pilot of the ascending steamer to answer by a similar signal of three or more blasts of the whistle, after which the pilot of the descending steamer may indicate by his whistle the side on which he desires to pass, and the pilot of the ascending steamer shall govern himself accordingly, the descending steamer being entitled to the right of way.

"The signals for passing must be made, answered and understood before the steamers have arrived at a distance of eight hundred yards of each other. Provided, however, that when a steamer on the Mississippi river is about to enter the Ohio river at the same time that a steamer on the Ohio river is about to enter the Mississippi river at Cairo Point, the steamer on the Mississippi river shall give the first signal. But in no case shall pilots on steamers attempt to pass each other until there has been a thorough understanding as to the side each steamer shall take." "1

By this rule the descending steamer has the right of way. If it fails to adopt the course indicated by the one ascending, when the descending steamer fails to observe the rule and makes no signal of approval or disapproval of the course designated, or returns a signal which is not understood by the one ascending, it is the duty of the latter to stop and not proceed until a full understanding is reached as to what direction each will take. The fact that either does an unlawful act does not excuse the other, and each is liable for the consequences of its unlawful conduct.?

The primary right of selecting the course to be pursued is conferred by the rule on the ascending boat, the other having the right to refuse to comply with its selection. The right of way being with the descending steamer, the other, on receiving notification of its course, must govern itself ac

1 Rule 1 for Western Rivers, In- 2 United States v. Keller, 19 Fed. spectors' Rules, 1895; The Wydale, R. 633.

37 Fed. R. 716.