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swamped by waves, negligence was imputed to the tug on the ground of its having failed to keep proper watch with respect to the conditions of wind and weather which affected its tow. But the captain of the barge was held to be also in fault, for the reason that he had taken no steps either to keep out the water, or to attract the attention of the tug.11

Other cases in which the contributory negligence of the persons in charge of the tow was regarded as constituting a complete or partial defense to the action, and which are consequently indicative pro tanto of the limits of the duty of the tug mastreated by the supreme court as being settled law, in view of the earlier expressions of opinion. In the opinion. of the court of appeals, we find these remarks: "The master of the Parsons [canal boat] did not surrender, nor did the defendant assume, the possession or control of that boat; she continued manned by the servants and agents of her owners, and the defendant did not assume to furnish a proper crew, or to see that she was properly manned or served. Whatever may have been the duty or the liability of the defendant to the public or innocent third persons sustaining damage from a collision caused by a want of a light upon the boats in tow, it is very evident that there was no duty owing by the defendant to the owner of the canal boat to compel the carriage of proper lights."

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In The Lizzie M. Walker (1925; C. C. A. 4th) 3 F. (2d) 921, where a passing steamer collided with the tow, the court said: "At the time of the collison there was only one light on the SCOW. Its owner did not undertake to furnish lights, nor did he have any representative on it. The owner of the tug had contracted to transport the scow and to take entire charge of its navigation. Under such conditions the owner of the scow was responsible for its seaworthiness; the tug was responsible for the navigation of the scow, and for placing lights necessary for its safety and the safety of other vessels." It seems clear that, unless a distinction is to be taken on the ground of the nature of the particular contract of towage, as indicated by the italicized words, these remarks reflect a doctrine different from that of the

ter to control their acts, are cited in § 45, infra. The nature of the obligation imposed upon him in regard to the fastening of tow lines is discussed in § 9 (a), infra.

In a recent case in which the tug was engaged to assist in the docking of a steamer, the conclusion of the district judge with regard to one of the contentions advanced was thus stated: "We decline to find that the employment to dock was exclusive of everything other than the actual berthing of the tanker. The

custom and practice makes [sic] the contract begin when the vessel is ready to be taken into the dock, and New York courts. But in this Federal case, where the action was brought against the tug and a steamer to recover damages for an injury occasioned to the scow by a collision between it and a passing steamer, the latter was declared to be solely liable, the court being of the opinion that, under the circumstances, the failure of the tug master to perform his statutory duty to place a light at the bow, as well as at the stern, of the scow, was not a contributory cause of the accident. The court argued thus: "The towing lights on a tug give notice to other vessels of the presence of a tow; the two lights required on the tow itself enable observers on other vessels to locate the tow more accurately. One light on a tow does not enable an observer on another vessel to tell whether the light is forward or aft. Thus, the observers on the Virginia may have been deceived as to the location of the scow by 100 feet and 10 inches, the length of the scow. But when they saw the towing lights of the tug and the one light of the scow they could not have been misled as to the location of the approaching scow by more than its length. Assuming that the navigating officers of the steamer were deceived by the presence of only one light into the belief that the scow was 100 feet further out of the course of the steamer than it really was, that does not show that the absence of the second required light contributed to the collision." The soundness of this reasoning seems to be at least disputable.

11 The Coleraine (1910; D. C.) 179 Fed. 977, affirmed in (1911) 107 C. C. A. 663, 185 Fed. 1006.

includes the taking of her in, notwithstanding the fact that she is moved by power supplied by herself." 12

$ 8. Acceptance or retention of an unseaworthy vessel.

Evidence that the vessel which was damaged was unseaworthy is susceptible of being considered under two distinct aspects. These it will be desirable to consider separately, although they may be, and often are, presented in the same case.

Evidence of this description may be of such a nature as to raise the question whether the tug was chargeable with initial fault in respect of undertaking the towage of the defective

12 The Caspian (1925; D. C.) 14 F. (2d) 1006, affirmed by circuit court of appeals in (1926; C. C. A. 3d) 14 F. (2d) 1013.

'Vanderslice v. The Superior (1850) 4 Clark (Pa.) 388, Fed. Cas. No. 16,843.

2In The Atlantic (1919; C. C. A. 5th) 262 Fed. 405, the master of a schooner was held to be negligent in undertaking to tow a motor boat when it was obviously in an unseaworthy condition, and to tow it with a line fastened to its steering gear in the cockpit, instead of at the bow.

In Dady v. Bacon (1906) 79 C. C. A. 221, 149 Fed. 401, reversing (1904; D. C.) 133 Fed. 986, where an unseaworthy barge sank during the voyage, the liability of the tug was denied on the ground that there was nothing in its appearance to convey information concerning its defects.

In The W. J. Keyser (1893) 6 C. C. A. 101, 13 U. S. App. 489, 56 Fed. 731, the liability of the tug was denied with relation relation to evidence which showed that the towage of the barge in question in the Gulf of Mexico was commenced at night, that the tug master had no reason to suppose that it was in an unseaworthy condition, and that there were then no special indications of tempestuous weather, or of anything to excite apprehension for the safety of the tow on the contemplated voyage.

In Mason v. The William Martaugh (1880; D. C.) 3 Fed. 404, where it was held to be negligence to attempt to tow a coal barge with the hatches open across New York bay, when the wind was blowing 21 miles an hour,

vessel. The doctrine applicable under this head is that it is the proper office of the tug master to determine, when a vessel is offered for towage, whether she is capable of resisting the weather to be anticipated during the voyage, and is furnished with an adequate crew. It is his duty "to refuse to take her if she is either too imperfect in her structure and arrangements, too heavily burdened, or too lightly manned to meet the apparent hazards of the voyage." "But on general principles it is clear that this duty is imputable only as regards cases in which the conditions creating the unseaworthiness were known, or ought to have been known, to him.2 In a case the court argued thus: "There is an obvious distinction between defects or unfitness for the voyage, which can be seen and must be appreciated upon the most casual inspection of the boat, and such as cannot be so seen. If the unfitness consists in what is perfectly obvious to the pilot of the tug when he takes the boat in tow, then clearly the tug undertakes to use a degree of care measured according to the obvious condition of the boat. If the unfitness is not thus obvious, he undertakes only for that degree of care which is proper and necessary for the management of a sound and seaworthy boat, as she is presumed to be; and to hold the tug liable for her loss arising from her unknown defects in such a case would be grossly unjust, and would encourage fraud and deceit. But the unfitness in the present case was obvious, and known to the pilot of the tug when he took the boat in tow. She was loaded, and had no hatch covers, and this was too obvious to escape his attention. Indeed, the proof is that he knew the fact. Therefore, he was bound not to tow her across the bay in that condition, in the state of wind and tide existing. The pilot of the tug, or whoever on its behalf makes up the tow, and decides when and under what circumstances of wind and weather the voyage is to be made, assumed to determine these questions for the boats in the tow with the ordinary care of a prudent owner in dealing with his own property, and in this respect those having control of this tug failed to exercise that degree of care and

where he was assured by the owner or master of the tow that it was seaworthy, it depends upon circumstances whether he was entitled to rely upon that assurance and refrain from making an examination into its condition.3

Another question to which such evidence may be relevant is whether the diligence. It was not, as suggested merely an error in judgment in choosing between two possible courses."

In Bust v. Cornell S. B. Co. (1885; C. C.) 24 Fed. 188, where a spile driver became unmanageable, by reason of the breaking of a defective cleat to which the backing line between it and the canal boat in front of it was fastened, the question whether the defendants should have discovered the defect was held to be for the jury.

In Connolly v. Ross (1882; D. C.) 11 Fed. 342, where the tug master had undertaken to tow through Long Island sound two canal boats which were overloaded and loaded in an improper manner, the tug was held to be liable for the loss of one of them in a gale.

In The Favorite (1892; D. C.) 50 Fed. 569, the failure to make an examination was treated as negligence.

4 The Bordentown (1883; D. C.) 16 Fed. 270, the tug master was held to be negligent in placing in the front tier of a flotilla, an old, weak, and heavily loaded canal boat, and in leaving it unguarded in a harbor known to be unsafe if a wind should arise from a certain quarter.

In The Wm. Kraft (1888; D. C.) 33 Fed. 847, the liability of the tug for the loss of an old flatboat which was sunk by colliding slightly with a bridge pier was affirmed on the ground that if the master of the tug "had undertaken to tow a flatboat known to be so tender as not to be able to endure knocks which would not hurt sound vessels, it was his duty to exercise care commensurate with the necessities of the occasion, and he should not have attempted to run past the piers of the bridge on a bad night, and in a high wind."

In The William H. Yerkes (1914; D. C.) 214 Fed. 881, negligence was imputed to a tug master on the ground that, although he had notice that the lighter in tow would be unable to encounter safely the heavy seas to be expected in such weather as prevailed,

tug master, being cognizant, either actually or constructively, of the defective condition of the vessel in question, exercised that degree of care which was incumbent upon him in respect of the handling of a tow in that condition.4

It is the duty of the tug master to detach from a tow a vessel which, by he had left a sheltered place and continued the voyage.

In Atkinson v. Scully (1917; D. C.) 246 Fed. 463, where the action was brought to recover damages for the death of the captain of a barge which had drifted away and foundered during a gale, the liability of the tug was affirmed on the ground that the remaining barge in the tow was leaking badly, and consequently that the tug, so far as respected making an effort to reclaim the lost barge, was in the predicament of having "disabled herself from doing that which diligence and vigilance required, because she had taken a leaky barge in tow with full knowledge of that fact." The court said: "It is no excuse that the weather at the beginning of the journey, and for some time thereafter, was good. If a tug takes out a leaky barge, she must be held to all the proximate results of such conduct." The court observed that, under the circumstances involved, it would have been folly for the tug master to take the chance of leaving the leaky barge to her fate, in the hope of finding the other one and saving it. "With a leaky barge in tow it was his duty to proceed to a port of safety as fast as he could, and avert the possibility of further disaster."

See also The Atlantic and Mason v. The William Martaugh (Fed.), cited in note 2, supra.

In Frankfort Elevator Coal Co. v. Prewett (1926) 212 Ky. 457, 279 S. W. 616, the contract in question was for the towage of a steel barge on the Ohio river from the shipyard to the place where it was to be used as a ferryboat. It was built low, both fore and aft, and the builder advised the crew of the tug to equip it with a splashboard, in order that waves from passing vessels, and the swell produced by its own movement through the water, might be prevented from running over its bow. But this advice was not followed. During the trip the barge sank shortly after the waves

reason of its defective condition, is likely to endanger the other boats in the tow.5

$ 9. Negligence in regard to the method of arranging the tow.

a. Generally.

In a leading case we find the statement that "it was the duty of the tug, as the captains of the canal boats had no voice in making up the tow, to see that it was properly constructed."1 But from the decisions as a whole it is apparent that the duty thus predicated with regard to tows consisting of canal boats merely is also incumbent upon all tugs and tug masters, who, under the provisions of the contract of towage are placed in

from two passing steamers had washed over it, and the evidence tended to show that the tug was then running at her limit of speed. A verdict in favor of the plaintiff was sustained,

5 Scott v. Cornell S. B. Co. (1894; D. C.) 59 Fed. 639. The libellant's boat was damaged by a collision with an old boat which the tug master had retained in the flotilla two or three hours after it had become filled with water as a result of its deck having come off.

1 The Quickstep (1869) 9 Wall. (U. S.) 665, 19 L. ed. 767.

2 The Edmund L. Levy (1904) 63 C. C. A. 235, 128 Fed. 683.

For other decisions affirming in general terms the existence of this duty, see The Mary Wittich (1917) 154 C. C. A. 651, 241 Fed. 378 (adopting the opinion of the district court in (1915) 241 Fed. 204); The Bern (1914) 130 C. C. A. 294, 213 Fed. 630; Flannery v. The Ontario (1848) 4 Clark (Pa.) 312, Fed. Cas. No. 4,856; Nelson v. The Goliah (1868) Hoffm. Ops. 481, Fed. Cas. No. 10,106; The Pres. Briarly (1884; C. C.) 24 Fed. 478; Wagner v. The W. M. Wood (1891; C. C.) 45 Fed. 774; The Rambler (1895; D. C.) 66 Fed. 355; The Florence (1898; D. C.) 88 Fed. 302; The R. G. Townsend (1905; D. C.) 140 Fed. 217; The Phoenix (1905; D. C.) 143 Fed. 350; The Domingo De Larrinaga (1909; D. C.) 172 Fed. 264; Gormley v. Thompson-Lockhart Co. (1916; D. C.) 234 Fed. 478; Daly v. Pennsylvania R. Co. (1919; D. C.) 257 Fed. 761; The Pallas

control of the vessels to be towed. See § 7, supra.

In this point of view it has been laid down broadly that it is the duty of a tug master "to exercise ordinary diligence to see that the tow is properly made up."2 This duty continues during the whole time that the tow is under his control, for he is required. "to correct any irregularity, and to keep the [vessels] under constant observation and in proper condition for reasonably safe towing."a

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In the performance of the duty so imposed he is required to place each of the vessels under towage in the position which is most suitable for the purpose of securing its own safety and that of the other vessels in the same tow.3 The mere fact that a cer

(1920; D. C.) 265 Fed. 847; The J. H. Williams (1920; D. C.) 266 Fed. 560; Creen v. Croce (1865) 17 La. Ann. 3; and the cases cited in the following notes.

In Neal v. Scott (1865) 25 Ind. 440, where the action was brought by the owner of a cargo on a boat, it was held that the jury were warranted in inferring negligence from the fact that the boat had been attached in an improper manner to the tug.

In The Pencoyd (1902; D. C.) 113 Fed. 682, an allegation that the sink. ing of a coal barge was due to the improper method of coupling it to the barge astern of it was held not to be sustained by the evidence.

2aThe Charlotte (1922; D. C.) 285 Fed. 84 (affirmed in (1924; C. C. A. 2d) 299 Fed. 595 (where the doctrine stated in the text was not referred to), certiorari dismissed in (1924) 266 U. S. 604, 69 L. ed. 463, 45 Sup. Ct. Rep. 91).

3 In Eastern Transp. Line v. Hope (1877) 95 U. S. 297, 24 L. ed. 477, the law was thus laid down: "When the master of a tug undertakes to transport a barge, he must apply the means for that purpose. He must furnish the motive power not only, but he must direct her location, whether on the port or the starboard side, whether she shall be the inside boat or the outside one, when and how she shall be lashed to other boats, with what fastenings she shall be secured, as she is dragged through the water whether she shall go fast or slow,

tain method of arranging the tug and tow is adopted at the request of the master of the latter does not relieve

when, if at all she shall drop astern, when she shall go to harbor, how long remain there, and what shall be her course of navigation."

"It is the duty of the tug to make up the tow; that is, to select the positions to be occupied by the component vessels, to attend to the leading hawser on which they are towed, and to prescribe the distance apart of the different tiers." The Edwin Terry (1908) 89 C. C. A. 17, 162 Fed. 309, reversing (1906; D. C.) 145 Fed. 837.

The

"In arranging the order of the vessels in the tow, the tow should be made up with reference to dangers incident to any portion of the route covered by the undertaking." Sweepstakes (1874) Brown, Adm. 509, Fed. Cas. No. 13,687. In that case, where a collision between two vessels in a tow resulted from the grounding of the one in front, the liability of the tug was affirmed on the ground that its master was negligent in not placing the vessel of heavier draft in the rear, when he was about to traverse the narrow, crooked channel through the St. Clair flats.

In The Zouave (1864) Brown, Adm. 110 Fed. Cas. No. 18,221, where the vessel behind the libellant's collided with her after she had grounded, the right of action was affirmed on the ground that good seamanship requires that the vessel of the greatest draft in a line should be placed last.

In Orhanovich v. The America (1879) 14 Phila. 515, Fed. Cas. No. 10,568, affirmed in (1880; C. C.) 4 Fed. 337, where the foremost of two ships grounded in going down a narrow channel, owing to the bad steering qualities (known to the tug-master) of the ship behind her, and was then struck by the defective ship, the liability of the tug was affirmed on the ground that the arrangement of the tow was "calculated to produce disaster."

In Cotton v. Almy (1905) 72 C. C. A. 506, 141 Fed. 358, where damages were awarded for the sinking of a houseboat, negligence was inferred on two grounds, viz.: (1) That, instead of towing it alone, the tug master had placed it between the tug and two following scows, thus subjecting it to severe and unnecessary strain; (2)

the master of the former from the duty to exercise reasonable care in respect of the conduct of the towage.

that he had started at a time when it would encounter a heavy swell, and thus be exposed to great danger by reason of the fact that its seams had opened while it was lying on the beach.

In The Oswego (1875) 8 Ben. 129, Fed. Cas. No. 10,610, where rough water in the Hudson dashed over and sank a canal boat, it was held that, under the circumstances disclosed by the evidence, there was no negligence in placing it in the head tier of the tow.

In Miller v. Steam Tow-Boat Eastern R. Co. (1870) 7 Phila. 597, Fed. Cas. No. 9,567, where an undecked boat placed in an exposed position was sunk when the tug was turning back on account of bad weather, the liability of the tug owner was affirmed.

In The Niagara (1884; D. C.) 20 Fed. 152, negligence was inferred from the fact that a heavily loaded open boat had been placed in the front tier of a flotilla to be hauled on the Hudson river.

In The Clarence L. Blakeslee (1917) 156 C. C. A. 145, 243 Fed. 365, where one of several barges which were being towed in Long Island sound took in so much water that further haulage became impossible, the contention that fault was predicable on the ground that the boat with most freeboard had not been put on the towing hawser was rejected on the ground that no uniform practice in this regard was established by the evidence. The court added: "But, even if error was committed, the direction of the wind and sea was such that the leading boats were not any more exposed to the waves than those further astern."

In The St. Paul (1909; D. C.) 171. Fed. 606, it was held to be negligence to leave only 3 or 4 feet between scows.

* In Baltimore & B. Barge Co. v. Knickerbocker Steam Towage Co. (1909; D. C.) 159 Fed. 755, affirmed in (1909) 95 C. C. A. 614, 170 Fed. 444 (short opinion), where a barge ran aground on the bank of a river while it was being towed with a tug on each side, the right of action was affirmed by the district judge, who, after having pointed out that the tug

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