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of the disaster which ultimately occurred.26

26 In The S. S. Wilhelm (1893) 8 C. C. A. 72, 16 U. S. App. 356, 59 Fed. 169 (reversing (1891; C. C.) 52 Fed. 602, which affirmed (1891; D. C.) 47 Fed. 89), the tug master, having, by his unskilful navigation during a severe storm, allowed his tow to drift dangerously near a lee shore on Lake Huron (see § 26, note 16, infra), attempted to extricate it by turning out into deep water. During this manoeuver the hawser parted, and the tow was wrecked. The conclusions of the court were thus stated: "The master ought to have known that his course, if continued, would bring him into a position of such imminent peril that escape was only possible by suddenly executing the maneuver of rounding to with his tow in this furious gale. That was the natural result of his negligent navigation. Such a manœuver, executed in extremis, could not but strain the towline, and would probably cause it to part, either in the maneuver or soon after. The parting of the towline near or in the breakers made the loss of the barges, cast adrift with no time to anchor or set sails, a matter of minutes. We are therefore of the opinion that, as the negligence of the master in bringing his tow so near to the shore, might have been expected to result in the loss (The Elfinmere (1888; D. C.) 39 Fed. 909), it was the proximate cause of the loss.

"The [district]

He

court finds the parting of the line to have been caused by the fury of the storm, and that it was an act of God, against which the owner of the Wilhelm did not insure the vessel of the libellants.' It is obvious from the foregoing that the question whether the maneuver was a sudden one or not, and whether the towline parted during its execution or not, was immaterial, in the view of the district judge. thought, and so do we, that the manœuver was under circumstances where careful and deliberate action was impossible, and that it was in extremis, and that, therefore, negligence was not chargeable. We fully agree with this; but it seems clear to us that the extremity in which the master found himself was one to which, by proper navigation, he would not have been exposed. We do not know that it is material whether the towline parted in the maneuver, or shortly

It should be pointed out that the phrase, "error of judgment," although thereafter, because it was something which the master was obliged to contemplate as possible or probable, and to provide against loss from, by keeping far enough off the shore to enable the tows to shift for themselves, if cast adrift. However this may be, our conclusion as to the circumstances of imminent peril under which the tow was rounded to, taken in connection with the other evidence, makes it clear to us that the line parted before the manœuver was completed, and that it was caused by the consequent extra strain."

In The Mattie (1924; D. C.) 5 F. (2d) 998, affirmed in circuit court of appeals without opinion in (1925; C. C. A. 2d) 5 F. (2d) 1001, the tug, which at first was proceeding to pass through the west draw of a bridge over the East river in New York harbor, changed its course, and endeavored to pass through the east draw. While this manoeuver was being performed, the scow under towage collided with the abutment on the land side of the draw. The theory advanced on behalf of the tug, viz., that a large pile driver lying alongside the end of a pier a little below the west draw was accountable for the accident, was rejected. The court said: "The time was about noon, a clear, fine day, and

there was no unusual disturbance in the water, or other conditions in this much-traveled channel. The conclusion is irresistible that the captain of the tug carelessly proceeded with his tow into a situation where, in his endeavor to extricate himself, he was compelled to take unnecessary chances with his tow, and unfortunately he was not successful in avoiding damage to it. . . . It seems to me that no one can consider all the testimony without coming to the conclusion that the captain of the Mattie neglected to exercise that prudence and caution which an ordinarily prudent captain should exercise, and on the contrary allowed himself to get into this dangerous position because of a reliance entirely upon a blowing of his whistle which should have been shown to him sometime before to be a vain thing. This was not an error judgment in extremis. It was neglect. . . . It seems to me proved that the captain of the tug, by the exercise of reasonable prudence and

it is ordinarily used by the courts to denote a situation which imports, prima facie, an absence of fault, is equally appropriate as a description of certain types of negligence.27 In a purely logical point of view, there is clearly no reason why a mistake should not, under certain circumstances, be treated as culpable. Indeed, it is manifest that, in the final analysis, the phrase, "error of judgment," whenever it is used by the courts to designate the quality of conduct regarded as being nonculpable, is to be understood as importing an "excusable error of judgment."

$ 4. Extent of knowledge imputed to contractors for towage service.

a. Generally.

The general principle which is controlling in this connection is that a tug master is supposed to know whether, having regard to the conditions existing at the time and place in question, it was safe and proper to carry out the operation or manœuver to which the injury complained of was incidental. In this point of view, it follows that, "if accident results from the want of proper knowledge on his [tug master's] part of the difficulcare, would have seen that his reliance on whistles alone was a vain and useless thing, and he should have thereupon shaped his course for the Bronx draw. . . . The fault therefore, was that the captain of the Mattie carelessly allowed himself to get into a position where he had to take, in view of the state of the tide, not only a chance, but a very dangerous chance."

27 It was used in this sense in The Energy (1870) L. R. 3 Adm. & Eccl. (Eng.) 48, where the course taken brought the tow into collision with a passing ship.

1 This statement seems to be a permissible generalization from the language used in The Margaret (1877) 94 U. S. 494, 24 L. ed. 146, with respect to the particular casualty there under discussion. That language was approved in Vessel Owners' Towing Co. v. Wilson (1894) 11 C. C. A. 366, 24 U. S. App. 49, 63 Fed. 626; Franklin Transp. Co. v. Great Lakes Towing Co. (1918) 160 C. C. A. 362, 248 Fed. 1019.

ties of navigation in the waters which are the theater of his tug's operations, the owners of the tug are liable." 2 In other words, a person who undertakes to perform towage service without a sufficient knowledge of the attending dangers is deemed to be chargeable with negligence.3

The nature and extent of the knowledge imputed to the navigators of the tug are indicated by the following statements:

"When the tug has control of the navigation of both vessels, those in charge must know the channel, the depth of the water, the currents, the tides, and the ascertained obstructions in the locality where they attempt to go." 4

The owner of a tug "is held bound to know the waters, the channels, welldefined currents, and such well-defined shoals as have been for a sufficient length of time marked by the government, and all other dangers known generally to men experienced. in navigation." 5

"Pilots [of tugs] are required to have such a degree of expert skill, and such knowledge of the channels, buoys, tides, and the general locality in which they undertake to act as pilots, as are

2 The Florence (1898; D. C.) 88 Fed.

302.

In Thompson v. Winslow (1904; D. C.) 128 Fed. 73, affirmed in (1904) 67 C. C. A. 470, 134 Fed. 546, the following remarks were made: "When a large vessel is placed in the care and custody of captains of the experience. of the men we have quoted, those vessels have the right to feel assured that such men know the dangers of the towage service which they are undertaking, and that they will not undertake such service unless they feel reasonably assured that they can perform it successfully. It is not sufficient for such men to say that they do not desire to assume any liabilities."

3 Consolidated Coal Co. v. Knickerbocker Steam Towage Co. (1912; D. C.) 200 Fed. 840.

4 Pettie V. Boston Tow-Boat Co. (1891) 1 C. C. A. 314, 1 U. S. App. 57, 49 Fed. 464.

5 The Marie Palmer (1911; D. C.) 191 Fed. 79, affirmed in (1913) 120 C. C. A. 664, 202 Fed. 1023.

necessary to properly discharge their duty." 6

"A tug undertaking to tow a vessel in navigable waters is bound to know the proper and accustomed waterways and channels, the depth of water, and the nature and formation of the bottom, whether in its natural state, or as changed by permanent excavations." 7 This phraseology was adopted in a later case, and supplemented by the statement that the tug master is "chargeable with notice of recently changed conditions, either in channels or harbors, if means of knowledge exist and are available to him." 8

"While employed in the home port of the tug, her officers are bound to know the channel, the shoals, the currents, and the state of the tide, and all risks and dangers incident to the employment, and whether in the state of the wind and water it is safe and proper to make the attempt to come in with her tow." 9

The tug master "is bound to know not only what appears upon government charts, but whatever is known to persons in the habit of navigating the waters in question." 10

The tug "must know the depth of the

The Louisa (1913; D. C.) 209 Fed. 1001, opinion adopted in (1914) 131 C. C. A. 400, 215 Fed. 92.

"The Henry Chapel (1882; D. C.) 10 Fed. 777.

Great Lakes Towing Co. v. Alva S. S. Co. (1919; C. C. A. 7th) 261 Fed. 261.

Berry v. Ross (1900) 94 Me. 270, 47 Atl. 512, 9 Am. Neg. Rep. 41. See also the passage quoted in § 6, note 3, infra, from the judgment of Lord Halsbury in The Ratata [1898] A. C. (Eng.) 514-H. L.

10 Lehigh Valley Transp. Co. v. Knickerbocker Steam Towage Co. (1914) 129 C. C. A. 318, 212 Fed. 708, where the liability of the tug was denied on the ground that the rock on which the tow grounded was not on any chart, and was not known to local navigators.

"The T. J. Schuyler v. The Isaac H. Tillyer (1889; C. C.) 41 Fed. 477, affirming (1889; D. C.) 35 Fed. 551.

12 Doherty v. Pennsylvania R. Co. (1920; C. Č. A. 2d) 269 Fed. 959, af

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The state of the tide as a factor determining the depth of water available for the tow at certain hours in certain places; 13 or the vertical disfirming The Hercules (1919; D. C.) 261 Fed. 529; White v. Upper Hudson Stone Co. (1917) 160 C. C. A. 651, 248 Fed. 893, certiorari denied in (1918) 246 U. S. 665, 62 L. ed. 929, 38 Sup. Ct. Rep. 335 (tug master bound "to judge weather with reasonable skill").

Other cases in which the possession of knowledge of this description was held or assumed to be obligatory are cited in § 13, infra.

13 The Ratata [1898] A. C. (Eng.) 514-H. L.; Gray's Harbor Tugboat Co. v. Petersen (1918) 163 C. C. A. 206, 250 Fed. 956; The Merrimac (1874) 2 Sawy. 586, Fed. Cas. No. 9,478; The Atlantic City (1917) 154 C. C. A. 62, 241 Fed. 62; White v. Upper Hudson Stone Co. (1917) 160 C. C. A. 651, 248 Fed. 893, certiorari denied in (1918) 246 U. S. 665, 62 L. ed. 929, 38 Sup. Ct. Rep. 335; Blanchard Lumber Co. v. Metcalf (1925; C. C. A. 1st) 3 F. (2d) 768, certiorari denied in (1925) 268 U. S. 694, 69 L. ed. 1161, 45 Sup. Ct. Rep. 513; The Brazos (1878) 14 Blatchf. 446, Fed. Cas. No.

tance between the surface of the water and the structure of a bridge. 14 The effect of the pressure of a wind upon the motion of the tow. 15

The effect of wind and water as an element determining the propriety of

1,821; The Isaac H. Tillyer v. The T. J. Schuyler (1889; D. C.) 35 Fed. 551, affirmed in (1889; C. C.) 41 Fed. 477; The Naos (1906; D. C.) 144 Fed. 292; The Westerly (1909; D. C.) 171 Fed. 904; The Raymond (1910; D. C.) 180 Fed. 931; The E. D. Haley (1912; D. C.) 195 Fed. 168; The Murrell (1911; D. C.) 200 Fed. 826; Berry v. Ross (1900) 94 Me. 270, 47 Atl. 512, 9 Am. Neg. Rep. 41.

14 McMillan v. Moran (1902) 51 C. C. A. 445, 113 Fed. 755, affirming (1901; D. C.) 107 Fed. 149.

15 The Ferguson (1907) 82 C. C. A. 442, 153 Fed. 366 (miscalculation as to effect of broadside wind resulting in a collision of the tow with a dock); The Fred E. Richards (1914) 134 C. C. C. A. 390, 218 Fed. 632 (failure to allow for drift due to wind); Kiernan v. Lake Champlain Transp. Co. (1921; C. C. A. 2d) 273 Fed. 499 (boats swept against bridge pier by gust of wind); The Lyon (1861) Brown, Adm. 59, Fed. Cas. No. 8,645 (tow drifted against anchored ship).

16 "Pilots of tugs must clearly be held to be fully aware of the effects of the wind on the waters [on the waters of New York bay]." Mason v. The William Murtaugh (1880; D. C.) 3 Fed. 404 (towage of boats without hatch covers in a strong wind).

17 In The Margaret (1876) 94 U. S. 494, 24 L. ed. 146, the court said: "The port of Racine was the home port of the tug. She was bound to know the channel, how to reach it, and whether in the state of the wind and water, it was safe and proper to make the attempt to come in with her tow. If it were not, she should have advised waiting for a more favorable condition of things."

18 In White v. The Lavergne (1880; D. C.) 2 Fed. 788, where a tug, when landing a tow, rounded so as to present it broadside to. the wind, thus bringing the libellant's boat into the trough of the sea, the court said: "While it cannot, of course, be held as an absolute rule that pilots should always foresee what does take place as the result of the action of the wind and sea on the boats in their charge,

making a certain trip with a certain kind of tow,16 or of undertaking a certain manoeuver at a certain time,17 or in a certain manner.18

The effect of tidal and other currents.19

yet, in the absence of anything to show that what has happened was something extraordinary and not to be anticipated as the result of the causes open to their observation, and with which they are bound to be familiar, they must ordinarily be held to have been able to anticipate those effects." 19 Tidal currents.

The New Philadelphia (Camden & A. R. & Transp. Co. v. Brady) (1861) 1 Black (U. S.) 62, 17 L. ed. 84; The Syracuse (1870) 12 Wall. (U. S.) 167, 20 L. ed. 382, affirming (1867) 6 Blatchf. 2, Fed. Cas. No. 13,717, which affirmed (1867) Fed. Cas. No. 8,068; The Webb (The William H. Webb v. Barling) (1871) 14 Wall. (U. S.) 406, 20 L. ed. 774; Pettie v. Boston Tow-Boat Co. (1891) 1 C. C. A. 314, 1 U. S. App. 57, 49 Fed. 464; Humboldt Lumber Mfrs. Asso. v. Christopherson (1896) 46 L.R.A. 264, 19 C. C. A. 481, 44 U. S. App. 434, 73 Fed. 239; The Gladiator (1897) 25 C. C. A. 32, 50 U. S. App. 11, 79 Fed. 445; The Adriatic (1910; D. C.) 183 Fed. 867, affirmed in (1911) 112 C. C. A. 665, 192 Fed. 1022; The Louisa (1914) 131 C. C. A. 400, 215 Fed. 92; White v. Upper Hudson Stone Co. (1917) 160 C. C. A. 651, 248 Fed. 893; The W. H. Baldwin (1921; C. C. A. 2d) 271 Fed. 411; The Atlas (1920; D. C.) 272 Fed. 171, affirmed in (1921; C. C. A. 2d) 272 Fed. 175; The Panther (1925; C. C. A. 2d) 5 F. (2d) 64 (certiorari denied in (1925) 267 U. S. 606, 69 L. ed. 810, 45 Sup. Ct. Rep. 508; O'Boyle v. Cornell S. B. Co. (1924; C. C. A. 2d) 298 Fed. 95; The Harlem River (1925; C. C. A. 2d) 7 F. (2d) 119; The Brooklyn (1868) 2 Ben. 547, Fed. Cas. No. 1,938; The Olive Baker (1870) 4 Ben. 173, Fed. Cas. No. 10,489; I v. The I. M. Lewis (1874) Fed. Cas. No. 6,991; The Josephine v. The Farnsworth (1881) 14 Phila. (Fed.) 587; The C. B. Sanford (1880; D. C.) 13 Fed. 910; The Delaware (1884; C. C.) 20 Fed. 797; The T. J. Schuyler v. The Isaac H. Tillyer (1889; C. C.) 41 Fed. 477; The Florence (1898; D. C.) 88 Fed. 302; Booye v. L'Engle (1893; D. C.) 57 Fed. 306;

The effect of wind together with tidal or other currents.20

The proper and recognized (or customary) channels to be used in performing the towage service.21

The width of the channel or channels to be navigated.22

The Potomac (1906; D. C.) 147 Fed. 293; The Theodore Roosevelt (1907; D. C.) 154 Fed. 155; The Mason (1915; D. C.) 221 Fed. 799; The Broadway (1921; D. C.) 272 Fed. 540; The Mary Ethel (1923; D. C.) 290 Fed. 458. affirmed without opinion in (1925; C. C. A. 2d) 5 F. (2d) 1013.

In Carpenter v. Eastern Transp. Line (1876) 67 Barb. (N. Y.) 570, affirmed in (1877) 71 N. Y. 574, where a tug collided with its tow, while they were tied up at a wharf, an instruction was approved as being in conformity with the principle that "the defendants' servants were bound to know the state and natural law of the tide, and take into account its time of flood and ebb, and to guard against all the changes, chances, and perils incident to and therefrom.' Other currents.

The Lady Pike (Germania Ins. Co. v. The Lady Pike) (1874) 21 Wall. (U. S.) 1, 22 L. ed. 499, reversing (1869) 2 Biss. 141, Fed. Cas. No. 7,985; The W. G. Mason (1905) 74 C. C. A. 83, 142 Fed. 913, reversing (1904; D. C.) 131 Fed. 632; The Marie Palmer (1911; D. C.) 191 Fed. 79, affirmed in (1913) 120 C. C. A. 664, 202 Fed. 1023; Franklin Transp. Co. v. Great Lakes Towing Co. (1918) 160 C. C. A. 362, 248 Fed. 1019, affirming (1916; D. C.) 237 Fed. 432 (first case reported under this caption); The Allegheny (1918) 164 C. C. A. 118, 252 Fed. 6; The David Morris (1871) Brown, Adm. 273, Fed. Cas. No. 3,596; The Adelia (1874) 1 Hask. 505, Fed. Cas. No. 79; Lepine v. Lake Champlain Transp. Co. (1918; D. C.) 251 Fed. 423; Berry v. Ross (1900) 94 Me. 270, 47 Atl. 512, 9 Am. Neg. Rep. 41; The Rochester (1926; D. C.) 16 F. (2d)

126.

20 The Genessee (1905) 70 C. C. A. 673, 138 Fed. 549 (flotilla lying at dock was swung around); Stimson Mill Co. v. Moran Co. (1910) 99 C. C. A. 54, 175 Fed. 38 (miscalculation resulted in collision of steamer with dock to which she was being towed); The Patriotic (1926; C. C. A. 3d) 14 F. (2d) 897.

The depth of water obtainable in various parts of the channel to be navigated.23

The nature and formation of the bottom of the channel or channels to be navigated.24

The position and character of shoals

21 White v. Upper Hudson Stone Co. (1917) 160 C. C. A. 651, 248 Fed. 893, certiorari denied in (1918) 246 U. S. 665, 62 L. ed. 929, 38 Sup. Ct. Rep. 335; The Great Lakes Towing Co. v. Alva S. S. Co. (1919; C. C. A. 7th) 261 Fed. 261; The Henry Chapel (1882; D. C.) 10 Fed. 777; The Mosher (1868) 4 Biss. 274, Fed. Cas. No. 9,874.

See also the reported case (THE ARLINGTON, ante, 101).

22 The Louisa (1914) 131 C. C. A. 400, 215 Fed. 92; The Morton (1874) Brown, Adm. 137, Fed. Cas. No. 9,864; The C. F. Ackerman (1876) 8 Ben. 496, Fed. Cas. No. 2,562; The Florence (1898; D. C.) 88 Fed. 303.

23 Pettie V. Boston Tow-Boat Co. (1891) 1 C. C. A. 314, 1 U. S. App. 57, 49 Fed. 464; The Great Lakes Towing Co. v. Alva S. S. Co. (1919; C. C. A. 7th) 261 Fed. 261; The W. H. Baldwin (1921; C. C. A. 2d) 271 Fed. 411; The Henry Chapel (1882; D. C.) 10 Fed. 777; The Isaac H. Tillyer v. The T. J. Schuyler (1889; D. C.) 35 Fed. 551; Franklin Transp. Co. v. Great Lakes Towing Co. (1918) 160 C. C. A. 362, 248 Fed. 1019, affirming (1916; D. C.) 237 Fed. 432 (first of cases reported under this caption). See also cases cited in note 13, supra.

24 Winslow v. Thompson (1904) 67 C. C. A. 470, 134 Fed. 546 (in this case the finding of the court, was [opinion below in (1904; D. C.) 128 Fed. 73, 83] "that the captains of the tugs

. did not sufficiently and competently know the bottom of the place where the towage service was to be performed; that they did not know the channel, nor the peculiar dangers attending the towage; and that they did not exercise reasonable care in the conduct of the towing, or in their undertaking to haul the tow from the obstruction upon which their lack of knowledge had placed her"); The Great Lakes Towing Co. v. Alva S. S. Co. (1919; C. C. A. 7th) 261 Fed. 261; The Henry Chapel (1882; D. C.) 10 Fed. 777.

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