ble for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible, as when the tug is employed by the master or owner of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction, and management of the master and crew of the tow. Fault in that state of the case cannot be imputed to the tug, provided she was properly equipped and seaworthy for the business in which she was engaged; and, if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence, or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case supposed do not sustain towards those intrusted with the navigation of the vessel the relation of the principal. But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an 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; and third persons, suffering damages through the fault of those in charge of the vessel, must, under such circumstances, look to the tug, her master or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unsea

worthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf that a part, or even the whole, of the officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise, and from the nature of the undertaking, and the usual course of conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation. Vessels engaged in commerce are held liable for damage occasioned by collision, on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill, on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel. Whenever, therefore, a culpable fault is committed, whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner himself. No such consequences follow, however, when the person committing the fault does not, in fact, or by implication of law, stand in the relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the reiation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug, or ship the crew, nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is in legal contemplation made with

the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation."

The courts hold the relation between tug and tow to resemble that between the hirer and driver of a livery-stable carriage. The hirer merely designates the destination, and as the driver is not employed or selected by him, but by the livery-stable keeper, the hirer is not liable for his acts.17

But if the tow is the dominant mind, and the tug merely furnishes the motive power and acts under the tow's orders, the responsibility would be upon the tow, though the tug would be liable for its own negligence.18

The English courts are inclined to regard the tug as the servant of the tow, and to hold the tow liable for the tug's negligence.19

But the difference between the American and English decisions is more apparent than real. The statements of facts in the English cases show that it is the usual practice in England to have the master of the tow direct the navigation of both vessels. In such case, the negligence would be that of the tow rather than the tug; and so the English courts have settled upon the doctrine that the question whether the tug is the agent of the tow or an independent contractor is a question dependent upon the special circumstances of each case.20

The relative duties of tug and tow are explained in DUTTON v. THE EXPRESS.21 If the tow is fastened along

17 Quarman v. Burnett, 6 M. & W. 499.

18 In re Walsh, 136 Fed. 557, 69 C. C. A. 267; Degama, 150 Fed. 323, 80 C. C. A. 93.

19 Niobe, 13 P. D. 55; Isca, 12 P. D. 34.

20 Quickstep, 15 P. D. 196; America, L. R. 6 P. C. 127; Smith v. Towboat Co., L. R. 5 P. C. 308; Devonshire, [1912] A. C. 634. Note especially the discussion of the American and English decisions on the subject in Marsden on Collision (7th Ed.) 193 et seq. 213 Cliff. 462, Fed. Cas. No. 4,209.

side the tug, and the tug has full charge of the navigation, then the liability for a collision would be upon the tug. If the tow is towing at the end of a hawser, the liability would be upon the tug if the tow steered properly, and would be upon the tow if the proximate cause of the collision was wild steering on her part. Even if she was steering properly, and the tug steered her into danger, she would be responsible to the injured vessel if by changing her helm or taking any other reasonable precautions she could avoid the consequences of the tug's negligence, for it would be her duty to avoid collision if she could do so. It is also the duty of the tow to arrange the hawser at her end.22

The tug is entitled to rely upon the statement of the tow as to the draft of the latter, and is not required to examine the tow's footmarks.28

SAME DEGREE OF CARE REQUIRED OF TUG 60. A tugboat is not a common carrier, and is liable only for lack of ordinary care, as measured by prudent men of that profession.

There are some early decisions to the effect that a tug boat is a common carrier, but the later authorities have settled thoroughly that it is not, but only an ordinary bailee, liable for ordinary negligence. It is also settled that the occurrence of an accident raises no presumption against the tug, and that the burden is on the complaining party to prove a lack of ordinary care.24 At the same time, the ordi

22 Isaac H. Tillyer (D. C.) 101 Fed. 478; America, 42 C. C. A. 617, 102 Fed. 767; Virginia Ehrman, 97 U. S. 309-315, 24 L. Ed. 890; Imperial (D. C.) 38 Fed. 614, 3 L. R. A. 234; Pederson v. Spreckles, 31 C. C. A. 308, 87 Fed. 938; Doris (D. C.) 108 Fed. 552; Maurice, 135 Fed. 516, 68 C. C. A. 228; C. W. Mills (D. C.) 241 Fed. 204; Id., 241 Fed. 378, 154 C. C. A. 651.

23 Coney Island (D. C.) 115 Fed. 751; Royal (D. C.) 138 Fed. 416. § 60. 24 EASTERN TRANSP. LINE v. HOPE, 95 U. S. 297, 24 L. HUGHES,ADM. (2D ED.)-9

nary care required of those engaged in the profession of towing is a high one, for they hold themselves out as experts. The measure of care required is similar to that required of pilots. In fact, they are pilots.25

As an expert, a tugboat man must know the channel and its usual currents and dangers, and the proper method of making up tows. He is liable for striking upon obstructions or rocks in the channel which ought to be known to men experienced in its navigation, but not for those which are unknown.26 He is required to have such knowledge of weather indications as experienced men of his class are supposed to have, though it would not be negligence in him to start to sea with his tow where the weather bureau predicted good weather. Nor would it be negligence to start on inland navigation merely because the weather bureau indicated storms at sea.27

A tugboat man who contracts to perform a service impliedly warrants that his tug is sufficiently equipped and efficient to perform the service, though he would not be liable for any breakdown arising from causes which ordinary care could not have discovered and prevented.28

Ed. 477; Atlantic City, 241 Fed. 62, 154 C. C. A. 62; Kunkle Bros. (D. C.) 211 Fed. 540.

25 Margaret, 94 U. S. 494, 24 L. Ed. 146; Mount Hope, 29 C. C. A. 365, 84 Fed. 910; Syracuse (D. C.) 84 Fed. 1005; Somers N. Smith (D. C.) 120 Fed. 569; Consolidated Coal Co. v. Knickerbocker Steam Towage Co. (D. C.) 200 Fed. 840.

26 Ashbourne (D. C.) 206 Fed. 861; Louisa (D. C.) 209 Fed. 1001; 215 Fed. 92, 131 C. C. A. 400; Mason, 249 Fed. 718, 161 C. C. A. 628; Westerly, 249 Fed. 938, 162 C. C. A. 136; Gray's Harbor Tugboat Co. v. Petersen, 250 Fed. 956, 163 C. C. A. 206.

27 Victoria, 37 C. C. A. 40, 95 Fed. 184; William H. Yerkes, Jr. (D. C.) 214 Fed. 881; May McGuirl (D. C.) 215 Fed. S05; Salutation (D. C.) 239 Fed. 421.

28 Undaunted, 11 P. D. 46; Ratata, [1898] A. C. 513; Charles B. Sandford, 204 Fed. 77, 122 C. C. A. 391; Enterprise (D. C.) 228 Fed. 131; Coleman v. Aiken, 242 Fed. 239, 155 C. C. A. 79.