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A similar obligation with regard to the arrangement of vessels to be towed is incumbent upon the contractor for their towage, where they are to be hauled in a line, each by a separate tug, through a channel so narrow that the stoppage of one of them will involve the stoppage of those behind her.4a

In a case where two of the boats in a flotilla collided with the pier of a bridge, it was held that, having regard to the duty of the tug master in respect of the supervision of the tow, the presumption of fault on his part was not rebutted by showing that the safety of the tow had been endangered by reason of the circumstance that, before the flotilla reached the bridge, one of the boats had been removed by another tug master in the employ of the same company as himself.4b

master adopted this method of towage at the request of the master of the tow, but that there was no agreement on the part of the latter to bear the responsibility for the consequences of this arrangement, continued thus: "Having adopted this method of performing the towage service when he had the right to decline it, he must be held to the use of the reasonable skill of a prudent mariner in conducting the towage after this method. . . The fact that he was averse to this method of towage does not excuse him from the exercise of reasonable care in performing it. The fact that he knew enough about the dangers of this method of performing the towage service is not conclusive on the question whether he competently knew the condition of the channels and the effect of the tides upon a barge towed with a tug on either quarter. . . . He did not, I think, appreciate the effect of the current upon a whaleback barge with a large overhang forward. . . . I am of the opinion that the captain in command of the tugs failed in the exercise of reasonable care in manoeuvering one or both tugs."

4a The Ratata [1898] A. C. (Eng.) 513-H. L. affirming L. R. [1897] Prob. 118-C. A. In that case, where, owing to the delay occasioned by the insufficient power of the tug hauling the leading vessel, the Ratata, the one next behind her, grounded by reason

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b. Duty in respect of hawsers and towlines.

By the Supreme Court of the United States it has been laid down that the tug master is bound to see that the towlines are "sufficient and securely fastened," and that this duty is equally incumbent on him, irrespective of whether the lines are furnished by the tug or by the tow.5 This declaration of her inability to pass a part of a tidal channel before the ebbing of the tide had rendered the water too shallow to float her, it appeared that under the contract of towage the defendant municipal corporation had undertaken to lighten this vessel, at the expense of the corporation, if it should prove to be necessary. One of the grounds for imputing liability to the corporation was thus stated by Lord Halsbury: "The plaintiffs were entitled to complain that in the combined operation the defendants were conducting, either, firstly, they did not lighten the ship sufficiently, or secondly, they did not place the Ratata, considering her draft as lightened by them, first in the line." Presumably the same conclusion would have been reached, even if the contract had contained no such stipulation as that proved. As to the other ground upon which the decision was based, see § 6, note 3, supra.

4b The Allegheny (1918) 164 C. C. A. 118, 252 Fed. 6.

4c The Richmond (1894) 12 C. C. A. 1, 25 U. S. App. 183, 63 Fed. 1020, affirming (1893; D. C.) 56 Fed. 619. See § 28, note 16, infra.

5 The Quickstep (1869) 9 Wall. (U. S.) 665, 19 L. ed. 767. The court said: "In the nature of the employment, her officers [of the tug] could tell better than the men on the boats what sort of a line was required to secure the boats together, and to keep them in their positions. If she failed in this

seems to be essentially antagonistic to later cases in which inferior Federal courts have apparently proceeded upon the theory that the tug is, generally speaking, not responsible for defects in the lines furnished by the tow. There is also much difficulty in reconciling it with the unqualified

duty, she was guilty of a maritime fault."

The above case was cited in The Pres. Briarly (1884; C. C.) 34 Fed. 47, where the tug collided with a barge which had broken loose. Two of the particulars in which the tug was held to be negligent were: "(1) In not seeing that the tow was properly made up, and secured with lines of proper strength. Half-inch lines, even new, are not sufficient for the securing together of large barges to be towed in the Mississippi river;" and (2) "in not securing the barge with a line from the tug before undertaking to back the tow up the river." The evidence was deemed to show that, notwithstanding the precarious and shiftless way in which the lost barge and the one adjacent to it were lashed together, and to the tug, the difficulty in handling the tow, which resulted in the disaster, commenced with the throwing off of the new line which lashed the sterns of the two boats together. This line was thrown off by the man in charge of the lost barge, and the libel alleged that this was done by the order of the master of the tug, with the intention of placing the tug between the two barges. But it was held that the evidence did not support this allegation."

In G. Robitzek & Bro. v. Davis (1923; C. C. A. 2d) 296 Fed. 107, the liability of a tug was affirmed in respect of injury caused to a barge by the rotten condition, readily discoverable, of lines attaching it to other barges in the same tier.

A decision which apparently was rendered from the same standpoint as that indicated by the language of the Supreme Court in The Quickstep (U. S.) supra, although that case was not referred to, is Baltimore & B. Barge Co. v. Eastern Coal Co. (1912) 115 C. C. A. 393, 195 Fed. 483. There the injured barge had been chartered for a specified period of time, to the owners of the tug, by a charter in the usual form of the chartering of a vessel where the charterer becomes

statement of one of those courts, that "the details which are familiar to every boatman, of making fast the lines which attach his boat to those ahead, behind, or alongside of it, naturally and usually, are left to those on board the boat so attached." But the language of the Supreme Court is the bailee of the vessel. The charter provided that the barge should be in seaworthy condition, and be furnished with a "10-inch hawser, 200 fathoms in length." In answer to the contention that the hawser aboard the barge was old and worn, and parted by reason of the grounding of the barge, and that this was a cause which contributed to her final loss, the court observed that the decision of the tug to make use of this hawser, when there was another one, entirely new, on the barge, was conclusive against it on the facts of the case. "The tug was bound, according to the usual rule, to use ordinary care to restore the barge at the termination of the charter. Therefore, if the wreck of the barge was through the negligence of the owners of the tug, the tug and her owners are liable therefor except as relieved by statutes." The cargo, for the loss of which the tug was held liable, belonged to a third party.

In Ulrich v. Sunbeam (1878) 1 N. J. L. J. 141, Fed. Cas. No. 14,329, it was held that the contract in question implied an undertaking to adopt such methods of attaching the libellant's canal boat to the tug "that the former would not be unnecessarily exposed to the hazards of navigating a river which has long been considered somewhat dangerous from the rocks in the bottom of the stream." The particular facts regarded as importing fault are not stated.

In The Morning Star (1926; D. C.) 10 F. (2d) 538, the court held that fault in respect of the method of attaching a hawser to the forward bitts of the tow was not established, because the tug master had made up the tow according to the ordinary and customary method.

6 The Hardy (1916) 144 C. C. A. 267, 229 Fed. 985; The Echo (1873) 7 Ben. 70, Fed. Cas. No. 4,263.

7 The Edwin Terry (1908) 89 C. C. A. 17, 162 Fed. 309, reversing (1906; D. C.) 145 Fed. 837, where it was held that an action for damage caused to a boat by contact with ice could not

not inconsistent with the predication of nonliability under circumstances which show that the navigators of the tow intended to accept such risks as might arise from the use of the defective line in question.8

be maintained upon the theory that the tug was negligent in failing to see that a breast line was used between that boat and the one next to it in the same tier. The Quickstep (U. S.) supra, was not referred to by the court, the authority cited being The Lyndhurst (1906) 77 C. C. A. 336, 147 Fed. 110, reversing (1904; D. C.) 129 Fed. 843, where the broad doctrine was formulated that "it is not the duty of the tug to make fast the lines on all vessels which it takes in tow." In this case the tug was held not to be liable for damage caused to a boat by a collision between it and a car float, after it had gone adrift as a result of the hawser having slipped off the cleat to which it had been made fast by the crew of the boat, in compliance with an order of the tug master. The decision seems to have been largely based on the consideration that, according to the evidence introduced, it was customary for captains of canal boats to fasten hawsers on their own boats. The reasoning of the court does not show distinctly whether this evidence was regarded by it as a controlling factor, the absence of which would have required a conclusion different from that which was reached. The unqualified words quoted above point to the supposition that the court intended to lay down a general rule, not dependent upon the effect of custom. That in The Edwin Terry (Fed.) supra, the court proceeded upon this supposition, may be inferred from its broad statement quoted in the text, and also from the fact that it made no reference to the element of custom. In The Lyndhurst the court commented upon The Quickstep, and distinguished it as a case involving a defective hawser. But this method of limiting the effect of the decision is scarcely satisfactory, in view of the generality of the language used by the Supreme Court.

In Reilly v. Cornell S. B. Co. (1914) 130 C. C. A. 500, 214 Fed. 60, it was laid down that "the master of the tug cannot be held in fault because he did not himself go aboard the scow to see that his instructions as to making

The tug master is bound to see that the hawsers and towlines are of a proper length, having regard to conditions incidental to navigation in the waters in which the towage is performed. He is responsible for any

fast the hawser had been carried out." In this case the parting of a hawser resulted from the failure of the men on the scow to fasten it in the manner specified by the tug master.

8 Moore v. The C. P. Morey (1879) Fed. Cas. No. 9,756. There the request of the tug for a better towline than one which, by reason of its being wet and frozen, had slipped off of the towing post, elicited the answer that this was the only one there, and the tug was virtually told to do the best it could with the defective one.

9 In Pettie v. Boston Tow-Boat Co. (1891) 1 C. C. A. 314, 1 U. S. App. 57, 49 Fed. 464, where the tow struck on rocks in a channel, as a result of the tug having taken a course too near them, and provided a hawser too long for the proper control of the tow under the conditions of the channel and the tide, it was held to be negligent to undertake to navigate on an ebb tide a vessel of the draft of the tow, with a hawser 100 fathoms long.

In Peace River Phosphate Min. Co. v. Mulqueen (1923; C. C. A. 1st) 285 Fed. 102, the liability of the tug was affirmed, where heavily loaded wooden box barges of the usual type, designed chiefly for transportation on inland waters, were towed through a choppy sea on short hawsers,, the result being that they bumped against each other, and two of them were sunk. It was declared to be the duty of the tug master "to arrange the barges in the tow as he deemed best for their safety, and to determine the length of the hawser between them under all conditions."

In The C. B. Sanford (1882; D. C.) 13 Fed. 910, while the tow was being hauled around an island, the tug allowed the hawser to slacken, and so lost control of the tow, the result being that it was carried by the tide on to a submerged rock. Held, that the tug was liable for the resulting injury.

For other cases in which negligence with regard to the use of too long a hawser was predicated, see The Teaser (1917) 158 C. C. A. 379, 246 Fed. 219, affirming (1916; D. C.) 229 Fed.

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Concerning unseaworthiness as a defense to an action against the tug, see § 40, ¶ (7), infra.

$10. Delay in commencing or prosecuting voyage.

In one case the owner of a tug was

476 (collision of tow with another ship was caused by use of hawser of illegal length): Nelson V. Goliah (1868) Hoffm. Ops. 481, Fed. Cas. No. 10,106 (collision with anchored vessel); Booye v. L'Engle (1893; D. C.) 57 Fed. 306; The J. H. De Graff (1895; D. C.) 66 Fed. 351; The El Rio (1908; D. C.) 162 Fed. 567 (one of two rafts towed side by side collided with a tree at a bend in a channel); The Maurice (1905) 68 C. C. A. 228, 135 Fed. 516 (tow collided with bridge); Berwin White Coal Min. Co. v. Downer Towing Corp. (1922; Mun. Ct.) 119 Misc. 315, 196 N. Y. Supp. 238.

In The Peerless (1921; D. C.) 282 Fed. 1000, affirmed in (1922; D. C.) 282 Fed. 1004 (no opinion), where the rear barge of a tow which was being hauled along the seacoast broke loose during the night and drifted ashore, the disaster occurred owing to the circumstance that the hawser connecting it with the barge in front of it had not been lengthened when prudent navigation required this alteration to be made. But the liability of the tug was denied on the grounds that its master had given the appropriate orders with regard to the lengthening; that, having received a relay answer to its order from the leading barge, he was entitled to assume that all the hawsers had been lengthened; that he was consequently not negligent in having failed to ascertain by observation whether his orders had been obeyed; and that in any event it was impossible to judge

held liable for the loss of a raft of logs in a storm which would not have been encountered if the performance of the contract had been commenced at the time specified by the owner of the raft. In another case, where the tug failed to commence with reasonable promptitude the performance of a contract to haul to a place of safety a sailing ship which had broken loose from her anchorage during a gale, the delay was held to be the proximate cause of the loss of the ship, which drifted on the rocks after a second gale had forced her away from an exposed dock to which she was taken by a third party.2

These decisions are substantially in accord with some cases which involved the effect of a temporary dis

of the distance between the lights of barges half a mile away.

10 The Wabash (1918; D. C.) 248 Fed. 1008. The tug signaled to the Wabash to make fast, with the intention of towing the boats up the channel and out of danger to a point where the shortening could be more safely accomplished. In that case the process of shortening was requisite for the purpose of complying with a statutory provision, and one of the grounds on which it was sought to hold the tug liable was that it was chargeable with fault in respect of its having allowed the hawsers to be of an illegal length before the shortening was undertaken. But the court said: "Such violation does not prove faulty navigation in matters which could not be affected by the length of the tow. . . . Violation of the statute before the accident does not add to the responsibility for the accident in question. The sole issue as the case stands is whether the Defiance was negligent from the standpoint of navigation in shortening the long hawser, under the circumstances of the situation at the precise point where this manoeuver was attempted."

11 Flannery v. The Ontario (1848; D. C.) Fed. Cas. No. 4,856 (tow collided with sailing ship).

1 Parmalee v. Wilks (1856) 22 Barb. (N. Y.) 539.

2 Boutin v. Rudd (1897) 27 C. C. A. 526, 53 U. S. App. 525, 82 Fed. 685. There the contract was made on September 25, the ship was taken to the


continuance or interruption of the voyage. In one of these damages were awarded to the owner of a barge which, after it had been tied up for the night at an intermediate port, on account of stormy conditions, was sunk by an unexpected squall while the remaining portion of the towage was in course of performance.3 another a tug was held liable, on the ground of a breach of the duty to convey its tow expeditiously and by dock on September 26, the second gale arose on September 30, and the ship was wrecked on October 1. The court said: "That the vessel might be lost through delay was apparent, and was manifestly, we think, a result to be reasonably contemplated from failure. of performance of the contract, and one which would ordinarily and naturally flow from such failure to perform. The exposed location of the vessel, the time of year, the customary season of storms, her leaky condition, all demanded promptness in discharge of the duty assumed."

3 The W. E. Cheney (1872; D. C.) 6 Ben. 178, Fed. Cas. No. 17,344. The court said: "Assuming good cause to have been shown for leaving the barge at Port Johnson for a time, the disaster having happened, the burden of proof is on the tug to show that there was no time prior to the time when, on the 7th, she resumed the trip with the barge, that she could have taken the barge in tow and Transported her safely."

Phillips v. The Sarah (1889; D. C.) 38 Fed. 252.

5 The Mariner (1927; C. C. A. 5th) 17 F. (2d) 253, reversing (1926; D. C.) 13 F. (2d) 891. There a tug, engaged to haul from Lynchburg to Galveston a tow consisting of a dredge, a barge, and a string of pontoons, ran aground soon after the commencement of the voyage. On the following morning it was pulled off by another tug. The weather was then fine, and there were no indications of any coming change; but about five hours afterwards, when the tow was on an open bay, a strong wind arose, and the pontoons, being light and difficult to handle under these conditions, were caught on certain beacons and broken up. To the court of appeals it seemed "clear that the actual injury to the pontoons occurred with

the most direct customary route, for the loss of one of the boats in the tow, which had sprung a leak and capsized at a stopping place not on that route. In another the owner of the tow was allowed compensation for injuries occasioned by a high wind which would not have been encountered if the tug had not been stranded by reason of the negligence of her crew.5

On the other hand, in a case where

out any fault on the part of the tug and as an unavoidable accident, and that, while libellant should recover for the damage actually done by the stranding, for which the tug furnished no sufficient or satisfactory explanation, it should not recover for the damage to the pontoons in the bay, unless the theory of libellant that that damage proximately resulted from the original stranding and consequent delay can be sustained." After remarking that "there is an irreconcilable conflict in the decisions on the question whether one's negligent delay in performing an undertaking to transport things does or does not render him liable for the results of the consequent increased or more prolonged exposure of those things to the hazards of unfavorable changes in weather conditions," the court continued thus: "The length of the tow and the number and kind of craft composing it made the towage a hazardous one, and called for the exercise by the tower of due diligence and a very high degree of care. The owner of the towed vessels, in offering them for such a towage, assumed the risk of all necessary exposure, but did not consent to their being subjected to hazards which could be avoided by the exercise of reasonable diligence, care, and skill on the part of the tower. The effect of the negligently caused delay was to extend the time during which the towed craft were exposed to the hazard resulting from a squall or increased velocity of wind. The towing undertaking necessarily involved exposure to such a hazard during the time reasonably required to complete the towage. Such a wind as was encountered not being an extraordinary event in that locality in November, it was reasonably to be anticipated that it might occur either during the ten or twelve hours rea

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