faits du capitaine, et tenu des engagements contractés par ce dernier pour ce qui est relatif au navire et à l'expédition. Il peut dans tous les cas s'affranchir des obligations ci-dessus par l'abandon du navire et du fret. Toutefois la faculté de faire abandon n'est point accordée a celui qui est en même temps capitaine et propriétaire ou co-propriétaire du navire. Lorsque le capitaine ne sera que co-propriétaire, il ne sera responsable des engagements contractés par lui, pour ce qui est relatif au navire et à l'expédition, que dans la proportion de son intérêt.” Arts. 451, 452 of the German Commercial Code; Art. 321 of that of Holland; Art. 216 of the Belgian Code; Art. 311 of the Italian; Art. 649 of the Russian; Art. 1345 of the Portuguese; and Arts. 621, 622 of the Spanish Codes, are to the same effect. In France the rule of the law by which the ship-owner's liability is limited to the value of the ship and freight has no application in the case of a collision between craft engaged in inland navigation. A distinction is drawn between collisions "maritimes" and "non-maritimes." In the one case the owner's "Comme dans l'un, c'est liability is limited, in the other not. la chose, autrement dit le navire qui répond plutôt le dommage, et dans l'autre, la personne:" Jurisprudence et Doctrine en Matière d'Abordage, par M. Sibille, pp. 7, 8. 78 A tug and her tow are in law one ship, the tug being the servant of the tow. CHAPTER III. TUG AND TOW. WHERE one vessel is in tow of another the two ships are, by intendment of law, one, the motive power being with the tug, and the command or governing power being with the tow. This is the general rule as regards obedience to the Rule of the Road. There is ground for the opinion that in Admiralty the same or a similar rule that the tug is the servant of the tow applies so as to make the tug and her tow mutually liable to a third ship for a collision caused by the fault of either (a). Thus, a ship in tow has been held responsible for a collision caused by the neglect of the tug to carry side lights (b); and a vessel towing the boat from which she had just taken her pilot was held liable for a collision caused by the pilot boat carrying improper lights (c). But the liability of a ship that has not herself been in collision is not clear. Elsewhere than in Admiralty the owners of a ship in tow would not be liable for a collision caused entirely by the fault of the crew of the tug, who were not their servants or agents. (a) The Kingston-by-the-Sea, 3 W. Rob. 152; The Cleadon, Lush. 158; The American and The Syria, L. R. 6 P. C. 127, 132; The Unity, Swab. Ad. 101; The Glengaber, L. R. 3 A. & E. 534; The Energy, ibid. 48. See also the cases cited supra, p. 55, and The Mary, infra, p. 81. As to the law in the United States of America with regard to the duties and liability of tug and tow, see the note at the foot of this chapter. (b) The Giraffe, 1 Pr. Ad. Dig. 153; and see The U. S. Grant and The Tally Ho, 7 Bened. 195, 208. (c) The Mary Hounsell, 4 P. D. 204; 40 L. T. N. S. 368. the command is with the If a vessel has another in tow in performance of a sal- Except where vage service, the command, or governing power, as well as as well as the the motive power, is usually in the towing vessel. In such motive power a case the tug is not the servant of the ship in tow, and the tug. rule that the two ships are, in intendment of law, one, does not apply. One steam-ship, The American, while towing another, The Syria, which she had picked up in a disabled condition, negligently ran into The Aracan. The Syria, without negligence on her part, ranged up alongside The American, and also damaged The Aracan. It was held that no liability attached to The Syria, and that The American was alone liable (d). She The Rule of the Road applies to a tug with one or more Application of the Regulaships in tow equally with other steam-ships. For this pur- tions to tug pose also the law considers a tug and her tow as one ship, and tow. and that a steam-ship (e). But it is obvious that a tug with a ship in tow has not the same facility of movement as if she were unencumbered. She is not, in anything like the same degree, mistress of her own movements. cannot, by stopping or reversing her engines, at once stop or back the ship in tow. In taking measures to avoid a third vessel she has to consider her tow; and a step that would be right, and take her clear, if she were unincumbered, may bring about a collision between her tow and the ship which she herself has avoided (ƒ). Although, therefore, it is the duty of a tug with a ship in tow to comply, so far as is possible, with the Regulations for preventing collisions, it is also the duty of a third ship to make allowance for the encumbered and comparatively (d) The American and The Syria, L. R. 6 P. C. 127. (e) The Warrior, L. R. 3 A. & E. 553; The American and The Syria, ubi supra. The same has been held in America: New York, &c., Co. v. Philadelphia, &c., Co., 22 How. 461; The Ivanhoe v. The Martha M. Heath, (f) See The Arthur Gordon and Tug alone liable in some cases. The contract of towage; its terms and performance. disabled state of a tug, and to take additional care in approaching her (g). In some cases the tug alone is liable for damage done by herself or by the ship in tow. Where the service she is performing is not ordinary towage, but a salvage service, as where she has picked up a derelict, or where the ship in tow is entirely under the charge of the towing ship, those on board taking no part in her navigation, it seems that the tug alone is liable. Where both the towing ship and the ship in tow belonged to the same owners, and both came into collision with a third ship, by the fault of those on board the towing ship, it was held that the liability of the owners was limited to the statutory amount, calculated upon the tonnage of the towing ship (h). It is an implied term in the contract of towage that the tug shall implicitly obey the orders of the ship in tow (i). If no orders are given by the latter, it is the duty of the tug to take such a course as will carry herself and her tow clear of collision and other dangers. If she fails to do so, she cannot recover, against the ship in tow, damage she may herself suffer by collision with a third ship. If, however, such damage was in consequence of improper orders from the tow she could probably recover. But if no orders are given by the tow as to avoiding a third ship, and, by the fault of the tug, a collision occurs between the tow and the third ship, the tow is herself in fault for giving no orders, and cannot recover from the tug either for injury which she has herself received or damages which she has been compelled to pay to the third ship (k). (g) The American and The Syria, (h) The American and The Syria, (i) The Christina, 3 W. Rob. 27; 6 Moo. P. C. C. 371; Smith v. St. Lawrence Tow Boat Co., L. R. 5 P. C. 308. (k) The Energy, L. R.3 A. & E. 48; Smith v. St. Lawrence Tow Boat Co., ubisupra; The Robert Dixon, 40 L. T. N. S. 333. Although the tug is usually bound to obey the orders Compulsory pilot in charge of the tow, there is doubt whether she is exempt from of ship in tow. liability to a third ship for a collision caused entirely by her acting in obedience to the orders of a compulsory pilot in charge of the ship in tow. In a recent case (1) it was held by Sir R. Phillimore that the statutory exemption from liability does not apply to the tug; and, upon this and other grounds, the tug was held liable. The point, however, was not expressly decided, as the tug was, in fact, guilty of contributory negligence. It was held by Dr. Lushington in several cases that the tug is free from liability in such a case (m); and although these decisions were under a former Act, the reasons upon which they were founded seem to be equally cogent at the present day as regards the liability of the tug-owners by the general law. The reason for the rule that, under ordinary circumstances, the tug must obey the orders of the ship in tow is, that there may be no divided responsibility or double command. It is considered necessary for the safety of both that they should be under the supreme command of one person. "I am well aware," said Dr. Lushington, “that mischief may in some instances arise from pilots (in charge of the tow) having entire control over steam tugs, and giving directions contrary to the judgment and experience of the masters of steam tugs, conversant, as they are, with every part of the waters in which they are employed. At the same time, I feel still greater difficulties would be occasioned by two conflicting and independent authorities being exercised in the navigation of one and the same vessel" (n). (1) The Mary, infra, p. 109. (m) The Duke of Sussex, 1 W. Rob. 270, 273; The Christina, 3 W. Rob. 27; and see The Ocean Wave, L. R. 3 P. C. 205; The Gipsey King, 5 Not. of Cas. 282, 288. (n) The Christina, 3 W. Rob. 27, 33 in The Duke of Sussex, ubi supra, the decision was to the same effect and upon similar grounds: see infra, p. 83. G |