1890 for breach of a contract of towage, in which the Court held that the tug had been managed in an unseamanlike manner, MAGGIE M. and the tug was condemned in damages. THE The question was also raised that this case does not fall within the words of the statute as "damage done by a ship." It is now held to be immaterial that the mischief complained of is not done directly by the vessel proceeded against. The Energy (1) was a suit against a steam-tug engaged to tow a vessel for negligently towing her so as to cause her to come into collision with and do damage to another vessel. So, The Nightwatch (2) was a case where, by the improper navigation of a steam-tug, vessel A came into collision with vessel B and sustained damage. It was held that this was damage done by the steam-tug. The Court says: "I must take it that The Prince, the vessel towed, was, by the improper navigation of The Nightwatch, which was towing her, brought into collision with The Juliet. This was damage done by The Nightwatch." The case of The Robert Pow (3) does not appear to have been followed by any subsequent case. Next, as to the duties of steam-tugs. The law is clearly settled that, when a steam-tug engages to tow a vessel for a certain remuneration from one point to another, she does not warrant that she will be able to do so under all circumstances and at all hazards; but she does engage that she will use her best endeavors for that purpose. The steam-tug is not a common carrier or insurer. She is bound, however, to bring to the performance of the duty she assumes reasonable skill and care, and to exercise them in everything she undertakes until it is accomplished. The want of either in such cases is a gross fault, and she is liable to the extent of the full measure of the consequences. Thus a shipowner entrusting his vessel to a steam-tug to be conveyed, as here, through the Falls, has a right to expect that the tug-master possesses the requisite knowledge of the tides and dangers and difficulties of the navigation which he has to meet in the performance of that work; and here I must remark that parts of the evidence show a want of inquiry, study and knowledge on the part of some of the (2) Lush. 542. (3) Br. & Lush. 99. (1) L. R. 3 A. & E. 48. 1890 THE witnesses engaged in this river towing business relating to distances; to the length of the spars of vessels to be towed; and to the extent of air space between the water and the MAGGIE M. bridge at the different heights of water-a species of knowledge and information indispensable for tug-masters to study and acquire, in order to ensure the due performance of the work they undertake to perform, and for the preservation of the property entrusted to their care. Much conflicting testimony has been given as to the time the tug, with the Eric in tow, arrived at Rankin's wharf; the length of time she remained there, and the exact time when she reached the bridge. Upon a review of the whole evidence I am of opinion that too great delay was made at the wharf, and that the time so lost was aggravated by the tug undertaking to tow two vessels together at that particular state of the tide; that by the time she reached the bridge the water had risen too high to allow the Eric to pass under, which I have no doubt she could have done had the tug proceeded with the Eric alone and reached the bridge half an hour or threequarters of an hour earlier, which I have no doubt, under the evidence, could have been done. Under all the circumstances, I must hold the Maggie M. liable for the damage caused. The desire of the captain to tow both schooners together, and the delay occasioned by his long waiting at the wharf to suit the convenience of the master of the Gleaner, made him too late on the tide, and he then ran a risk which, I think, a prudent captain should not have done in the performance of so peculiar and perilous a service. As to the damages to be allowed. It appears that the freight to be earned by the carrying of the cargo of ice has been lost, and after repairing, the Eric was obliged to accept a less remunerative charter. It is shown that the difference between the two charters amounts to $100, which must be taken to be the loss sustained on freight; to this must be added $193.98, being the sum paid for the repairs, making in the whole the amount of $293.98, for which I give judg ment for plaintiffs, with costs. Decree accordingly. By 3 & 4 Vict., c. 65, s. 6, the Court has jurisdiction, without reference to locality, for services 1890 THE age rendered to any ship or seaUnder this Act going vessel. Under this Act MAGGIE M. the service rendered must have been to a "ship or sea-going vessel," and therefore a claim for salvage remuneration in respect of a raft of timber within the body of a county gave the Court of Admiralty no jurisdiction; Raft of Timber, 2 W. Rob. 251. Prior to this Act "in cases of towage, where there had been a contract between the parties, the Admiralty has no jurisdiction. It was, however, thought expedient by the legis lature in all these matters to give a remedy to the parties who might have rendered these services, whether on the high seas, or within the body of a county, by assisting a vessel, within the proper jurisdiction of this Court, and not to leave them to an action at law, as before the passing of this Act;" The Ocean, 4 N. of Cas. 33; Edwards' Ad. 190. From early times the Court exercised jurisdiction over claims for towage services rendered on the high seas, and the 3 & 4 Vict., c. 65, sec. 6, extended that jurisdiction to the body of a county. The ViceAdmiralty Court Act, 1863, c. 24, sec. 10, in respect of towage, conferred a like jurisdiction on Vice-Admiralty Courts. Dr. Lushington, in The Princess Alice, 3 W. Rob. 140, defined an ordinary towage service as "the employment of one vessel to expedite the voyage of another, where nothing more is required than the accelerating her progress." In The Constancia, 4 N. of Cas. 512; s. c. 10 Jur. 845, it was held that towage created a maritime lien ; and that view was apparently unquestioned until in The Heinrich Bjorn, 10 P. D., p. 50, it was as an obiter dictum stated that towage gave no lien, but in the case of Westrup v. Great Yarmouth Steam Carrying Co., 43 Ch. D. 241, the point came up squarely for determination, and it was held that ordinary towage services rendered to a ship created no maritime lien. As to the correlative duties of tug and tow, see The Julia, Lush. 224; The Mary, 5 P D. 14. Where one ship is in tow of another, the two ships are, for some purposes, by intendment of law, regarded as one, the command or governing power being with the tow, and the motive power with the tug; The Cleadon, 14 Moo. P. C. 97, s. c. Lush. 158; The America and The Syria, L. R. 6 P. C. 127. The "tug is the servant of the tow," and those on board the tug must obey the orders of the tow; The Christina, 3 W. Rob. 27; s. c. 6 Moo. P. C. 371; The Isca, 12 P. D. 34; The Niobe, 13 P. D. 55; Smith v. St. Lawrence Tow Boat Co., L. R. 5 P. C. 308. See also Spaight v. Tedcastle, 6 App. Cas. 217; The Restless, 13 Otto. 699. There is one exception, that tug and tow shall be deemed one ship, and the tow responsible for the conduct of the tug, and that is when the tug is rendering salvage service; The Union Steamship Co. v. The Aracan, L. R. 6 P. C. 127. In The Quickstep, 15 P. D. 196, it was held that a barge towed into collision by her tug was free from blame, on the ground that the governing power was solely in the tug. In the United States, it has been held that the owners of the tow may resort to either one of the offending vessels and recover for his whole loss; The Atlas, 93 U. S. 302; or recover his loss from both vessels; The Alabama and The Gamecock, 92 U. S. 695. In the latter case the decree is not in solido against both vessels for the damages, but a decree is made apportioning the loss between the two vessels. See Henry, Ad. 253. Where a tow suffers injury through improper and unseamanlike conduct on the part of the tug hauling it, the latter is liable for the damages; The Burlington, 137 U. S. 386. See Henry, Ad. 253; The Atlas, 93 U. S. 302. But recently in England the Court refused to amend a decree against a tug and the vessel in tow, which were jointly liable for collision, by inserting words to the effect that each vessel was primarily liable 1890 THE for one-half only of the entire damages; The Avon and The Thomas Joliffe (1891), P. 7. MAGGIE M. Towage may be turned into salvage service under circumstances where the risk becomes so great as to be beyond the ordinary services of a tow-boat. Henry, Ad. 45; The Connemara, 108 U. S. 352; The Rialto, 15 Fed. Rep. 124; The Galatia, Swa. 349; The Albion, Lush. 282; The I. C. Potter, L. R. 3 A. & E. 292. For cases in which towage has not been converted into salvage, see The Annapolis, Lush. 355; The Edward Hawkins, Lush. 515; The Robert Dixon, 5 P. D. 54; The Strathnaver, 1 App. Cas. 58. A contract to tow is not a warranty to tow to destination, but to use best endeavour and competent skill for that purpose, with a vessel properly equipped; The Minnehaha, Lush. 335; The William, Cook 171; Sewell v. British Columbia Towing Co., 9 Can. S. C. R. 527. The obligation to perform the service is terminated if rendered impossible by a vis major, ibid. The doctrine of common employment does not apply as between the tug and the servants and owners of the tow; The Julia, Lush. 224. For further statement of the law and citation of cases see Marsden on Coll. (3rd ed.) 185; Newson on Salvage and Towage, 134; W. & Bruce (ed. 1886) 175. 1891 June 6. THE PARAMATTA. Collision-Lookout-Fog-horn-Sailing Rules - Departure from- Liability. Two vessels-the M. P. and the P.-came into collision in the Bay of Fundy, whereby the former was badly damaged. The wind at the time was blowing strong from south south-east. The M. P. was hove to on the port tack, under a reefed mainsail; and the P. was close hauled on the starboard tack. The weather at the time was foggy. The M. P. did not have a regulation fog-horn on board, but had a tin one blown by the mouth. When the P. was first seen by the M. P. she was from a quarter to a half mile distant. The M. P. was loaded with piling, bound for New York. The P. did not change her course, and ran into the M. P. and caused the injury. Held:- That although the M. P. was on her port tack, she was practically hove to, and could execute no manœuvre to avoid the collision; that the absence of a regulation fog-horn on board did not occasion or contribute to the collision; but that the collision was occasioned by the want of a proper lookout on board the P., and she was therefore condemned in damages and costs. This was a case of damage by collision instituted by the owners of the Mabel Purdy against the Paramatta. The collision took place in the Bay of Fundy on Tuesday, May 20, 1890, about 2 p. m. At the time the wind was blowing strong, and the weather was foggy. The facts and circumstances of the case are fully set out in the judgment of the Court. Mr. B. A. Stamers acted as nautical assessor. L. A. Currey, for plaintiffs. C. A. Palmer, for the Paramatta and owners. The following judgment was now (June 6, 1891) delivered by WATTERS, J. This was a cause of collision instituted by the owners of the schooner Mabel Purdy against the bark Paramatta, of St. John, N. B., for a collision which took place in the Bay of Fundy about 2 o'clock on the afternoon of Tuesday, 20th May, 1890. The wind at the time of the collision was blowing strong from south south-west. The weather was foggy, occasionally lighting up. At the time |