6863. Duty of rival tugs racing after 6875. Injuries to tow by collision

$6857. Tug and Tow Regarded as a Single Steam-Vessel, and Amenable to Rules Governing Steam-Vessels.-The maritime law regards a tug and its tow as a single steam-vessel,' and amenable as such to the starboard-side rule, the rules applicable to overtaking and overtaken vessels, and the rule requiring a steam-vessel to keep

out of the way of a sailing-vessel,*-subjects sufficiently discussed in preceding sections.

5

$6858. Rule where Steamship Encounters Encumbered Tug.This principle, however, is not construed with great strictness where the controversy is between a steamship and an encumbered tug. In these cases the courts with great propriety note the fact that a steamer has a more perfect command of her own movements, and require her to keep out of the way of a tug having less freedom of movement where there is nothing to prevent her from doing so. This view invests the tug with the character of a sailing-vessel." Where a collision occurs the steamer will be presumed to have been in fault unless fault of the tug or tow is shown."

$6859. Tug Not an Insurer of Tow against Marine Perils.-A tug is not a common carrier, and hence is not an insurer of the safe delivery of her tow. The obligation imposed upon the tug is that she shall be reasonably adequate to perform the service undertaken, and that those in charge shall possess and exercise the care and skill ordinarily exercised by those having experience in such matters. The

800 feet astern of the tug, when she blew two whistles, but these were neither heard nor answered by the tug. The steamer made no change of her wheel until she was so near the tug that a collision was imminent. It was held that the tug, under the rules then existing, was under no obligation to notice or to answer the steamer's whistle astern, and that the latter was responsible for the collision in attempting to pass so near, in view of the converging courses of the two vessels: In re Rogers, 93 Fed. Rep. 254.

'The Favorite, 10 Biss. (U. S.) 536; The Harold, 84 Fed. Rep. 698. Where a schooner, close-hauled on a N. N. W. breeze, met a tug, with three barges in tow, nearly head on, and, keeping her course, came in collision with the tow, it was held that the facts proved showed the tug to have been unable to change her course as required by rule 20 of the Navigation Rules (U. S. Rev. St., 4233), but that she was in fault for not making known such inability to the schooner by hoisting two vertical lights as required by rule 24, shifting the duty of avoidance on to the sail-vessel: The C. F. Ackerman, 9 Ben. (U. S.) 179.

6

Ante, §§ 6814-6820.

8

The Alabama, 114 Fed. Rep. 214; The B. B. Saunders, 25 Fed. Rep. 727; The Cherokee, 15 Fed. Rep. 119; The Curtin, 114 Fed. Rep. 214; Green v. Mitchell Transp. Co., 120 Fed. Rep. 49; The Mayumba, 21 Fed. Rep. 476; Mitchell Transp. Co. v. Green, 120 Fed. Rep. 49.

The Jamestown, 114 Fed. Rep. 593; The Norfolk, 114 Fed. Rep. 593.

The Argus, 31 Fed. Rep. 483; The A. R. Robinson, 57 Fed. Rep. 667; The D. Newcomb, 16 Fed. Rep. 274; The E. F. Simpson, 60 Fed. Rep. 452; s. c. 9 C. C. A. 66; The Lady Wimett, 92 Fed. Rep. 399; Molenbrock v. St. Louis &c. Packet Co., 16 Fed. Rep. 878; Munks v. Jackson, 66 Fed. Rep. 571; s. c. 13 C. C. A. 641; The Startle, 115 Fed. Rep. 555; The Temple Emery, 122 Fed. Rep. 180; The Neaffie, 1 Abb. (U. S.) 465; s. c. Fed. Cas. No. 10,063; Varble v. Bigley, 14 Bush (Ky.) 698; s. c. 29 Am. Rep. 435; Wells v. Navigation Co., 2 N. Y. 208; Hayes v. Millar, 77 Pa. St. 238; s. c. 18 Am. Rep. 445; Leonard v. Hendrickson, 18 Pa. St. 40; s. c. 55 Am. Dec. 587; The J. P. Donaldson, 167 U. S. 599; s. c. 42 L. ed. 292; 17 Sup. Ct. Rep. 951; The Steamer Webb, 14

reasonable care imposed is measured by the dangers and hazards to which the tow is exposed, which it is the duty of the master to know and guard against, not only by giving proper instructions for the management of the tow, but by watching her when she is in a dangerous locality to see that his directions are obeyed. It of course follows, that an error of judgment on the part of the master is not equivalent to negligence.10 A tug cannot escape liability for clear negligence by a provision in the contract that the towage shall be at the owner's risk.11

§ 6860. Tug Not Servant nor Agent of Tow.-The employment of a tug to assist and control the navigation of a tow does not make the tug the servant or agent of the tow.12 The doctrine on this subject as announced by the Supreme Court of the United States is that "whenever the tug, under the charge of her own master and crew, in the usual and ordinary course of such employment, undertakes to transfer 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 motor power is necessary or usually employed, her master will be held responsible for the navigation of both vessels."13 Thus, the owner of a tug, as bailee of its tow, has been held

Wall. (U. S.) 406; s. c. 20 L. ed. 774;
Transportation Line v. Hope, 95 U.
S. 297; s. c. 24 L. ed. 477. A tug
assisting a steamer into harbor,
though not required to exercise the
highest possible degree of skill, as
she is not an insurer or common
carrier, is bound to exercise reason-
able skill and care to avoid collision
with vessels moored at docks: The
Syracuse, 84 Fed. Rep. 1005.

"The Crescent, 120 Fed. Rep. 569;
The Somers N. Smith, 120 Fed. Rep.
569; The Jane McCrea, 121 Fed.
Rep. 932.

10 The E. Luckenbach, 113 Fed. Rep. 1017; s. c. 51 C. C. A. 589; aff'g s. c. 109 Fed. Rep. 487; The George L. Garlick, 16 Fed. Rep. 703; The Packer, 28 Fed. Rep. 156; The Startle, 115 Fed. Rep. 555.

"The American Eagle, 54 Fed.
Rep. 1010; The Crescent, 120 Fed.
Rep. 569; The Rescue, 24 Fed. Rep.
190; The Somers N. Smith, 120 Fed.

Rep. 569. See The Syracuse, 12
Wall. (U. S.) 171. Where a ship in
tow of a steam-tug suffers damage
by reason of the negligence of those
on board the tug, her owners are
entitled to recover in respect of that
damage from the owners of the tug,

notwithstanding the fact that the negligence of a pilot in charge of the ship by compulsion of law contributed to the mischief: The Adam W. Spies, 70 L. J. Prob. 25.

12 The Doris Eckhoff, 32 Fed. Rep. 555; The James Berwind, 44 Fed. Rep. 693; The Civilita, 103 U. S. 699; Sturgis v. Boyer, 24 How. (U. S.) 110; The Frank Moffatt, 2 Flip. (U. S.) 291. A charterer of a vessel over whose movements he has no control is not liable for the negligence of one of his employés in acting as pilot on a tug towing such vessel to sea, although he strenuously urged the employment of such additional pilot, since the acceptance of such pilot is the act of the master of the tug, and when he is so employed he becomes the servant of that vessel, engaged solely in the transaction of her business and not in the transaction of the business of the charterer, and the fact that the pilot was a general employé of the charterer can make no difference: The Martin Kalbfleisch, 55 Fed. Rep. 336.

13 Clifford, J., in Sturgis v. Boyer, 24 How. (Ú. S.) 110.

the proper person to maintain a suit for injury thereto by collision, without regard to any right of subrogation to the claim of the owner by payment to the latter of the damages sustained, or as to whether or not he has made such payment.14 On the other hand, the negligence of the tug will be regarded as the negligence of the owners of the vessel in tow, where navigation is controlled and directed by the tow. In this situation the relation of master and servant exists between the owner of the vessel towed and those in charge of the tug.15

$6861. Joint Liability.-A tug and its tow are jointly liable for injuries to other vessels where the navigation of the tug is directed by the owner, officers, or crew of the tow;16 and both the tug and the tow will be liable for injury to a third vessel where the fault of each contributes to the injury." Again, where a tow attached to a tug is injured by a collision brought about by the concurring negligent acts of the tug and another vessel, the owner of the innocent tow or its cargo may proceed against the two vessels jointly or either one of them severally to recover his entire damages. 18 But a tow cannot hold her tug liable for the consequences of a collision caused by no fault of the tug, but solely by the fault of the colliding steamer.19

§ 6862. Adequacy of Tug and Fitness of Tow.-The owner of a tug, by soliciting and accepting business, impliedly represents that his tug is adequately equipped for the service of towing;20 and the

"The Jersey City, 51 Fed. Rep. 527; s. c. 1 U. S. App. 244; 2 C. C. A. 365. "Albina Ferry Co. v. The Imperial, 38 Fed. Rep. 614; s. c. 3 L. R. A. 234; Car Float No. 4, 89 Fed. Rep. 877; The Charlotte, 51 Fed. Rep. 455; The C. P. Raymond, 26 Fed. Rep. 281; The Shubert v. The Einar, 45 Fed. Rep. 497; The Shubert v. The Brown, 45 Fed. Rep. 500; The Startle, 115 Fed. Rep. 555; The Quickstep, L. R. 15 Prob. 196.

"The Express, 46 Fed. Rep. 860. "The Moonlight, 50 Fed. Rep. 478: The Peru and The Relief, 91 Fed. Rep. 426; Sturgis v. Boyer, 24 How. (U. S.) 110. A steamer in tow is responsible together with her ng, for the consequences of a col Esion between herself and another steamer, where the collision is produced by the fault of her officers and crew, though they are acting in connection with those of the tug and taking their orders from the latter's master: The Express, 3 C.

C. A. 342; s. c. 52 Fed. Rep. 890; 1
U. S. App. 658.

18 The Franconia, 16 Fed. Rep. 149; The Galilee, 28 Fed. Rep. 469; The Jane McCrea, 121 Fed. Rep. 932; The J. J. Driscoll, 63 Fed. Rep. 1023; s. c. 12 C. C. A. 4; The J. B. King, 106 Fed. Rep. 980; The Alabama, 92 U. S. 695; The Atlas, 93 U. S. 302. The owner of a barge injured by collision while in tow of a tug may recover the loss from a colliding tug, which was at fault, although the tug which had the barge in tow was also at fault and was not served with process under the libel: The E. A. Packer, 49 Fed. Rep. 92.

10 The B. B. Saunders, 23 Blatch. (U. S.) 378; s. c. 25 Fed. Rep. 727.

20 Thus, a steamship lying in a slip without steam up employed a tug to take her out and move her to another location, a service which required especial care because of the presence of other vessels in the slip. The tug borrowed a hawser from

21

tug will be liable where injury to the tow is attributable to insufficient equipment of the tug, or lack of power.22 The tug is charged with the duty of making frequent and sufficient inspections of her machinery.23 It is also her duty to make an inspection of her tow to determine whether towage can be safely undertaken;24 and she will be liable where she undertakes service with a tow the unseaworthiness of which would be revealed by such an inspection;25 but not, however, where this fact is concealed.26 The tug will not be liable in all cases for undertaking towage of tows improperly loaded, as where she proceeds through a sea that is not heavy, and the sinking of the dredge is due to the fact that the crane thereon is secured only by an inadequate chain, which breaks and causes an extra strain on the bottom of the dredge.27 So, a tug has been held not responsible for the loss of a barge towed in weather no worse than should have been anticipated at that season of the year, where the capsizing was due solely to the lack of sufficient and proper ballast.28 Likewise, a tug has been absolved from liability for loss of tows through the insufficiency of their bitts, which gave way under an ordinary and usual strain.209

§ 6863. Duty of Rival Tugs Racing after Tow-Interference by Rival. The danger of collision in racing after business is apparent, and demands from rival tows a strict observance of the navigation rules and the exercise of care commensurate with the danger. Thus, it has been held that each of two tugs racing out of a harbor for the purpose of securing the towing of a vessel about to enter, was guilty of negligent and reckless conduct in approaching the vessel on a curve

the ship, which broke, and the ship was injured by striking against a pier. It was held that the tug, in her home port, must provide herself with proper equipment, and could not charge the injury in whole or in part to the fault of the ship, on the ground that the hawser was insufficient: Baker-Whitely Coal Co. v. Neptune Nav. Co., 120 Fed. Rep. 247; s. c. 56 C. C. A. 83.

The E. V. McCaulley, 90 Fed. Rep. 510; s. c. 33 C. C. A. 620; aff'g s. c. 84 Fed. Rep. 500; The Ivanhoe, 90 Fed. Rep. 510; s. c. 33 C. C. A. 620; aff'g s. c. 84 Fed. Rep. 500.

22 The Howard Carroll, 41 Fed. Rep. 159.

23 Van Eyken v. Erie R. Co., 117 Fed. Rep. 712; The Acme, 123 Fed. Rep. 814.

24 The Favorite, 50 Fed. Rep. 569. 25 The William Kraft, 33 Fed. Rep.

847; Davidson v. Holden, 60 How. Pr. (N. Y.) 327. A tug refused to put in shore because of an approaching thunderstorm, although the outside boat of the tow gave notice that she could not stand it. The boat sank, but probably would not have done so had her pumps been in good order. It was held that she could not recover but half her damages: Philadelphia &c. R. Co. v. New England Transp. Co., 24 Fed. Rep. 505.

26 The Harry & Fred, 49 Fed. Rep. 681; The Snap, 24 Fed. Rep. 292.

27 The Hercules, 55 Fed. Rep. 120. 28 Williamson v. McCaldin Bros. Co., 122 Fed. Rep. 63; s. c. 58 C. C. A. 399; aff'g s. c. 116 Fed. Rep. 400.

29 The R. C. Veit, 56 Fed. Rep. 122; Parker v. New York, 9 App. Div. (N. Y.) 518; s. c. 41 N. Y. Supp. 626.