CHAPTER XII

TOWAGE AND PILOTAGE

=1. Definition.=--Towage is the service rendered by one vessel to another in moving her from point to point under ordinary circumstances of navigation. Pilotage is the navigation of a vessel by one having special knowledge of the waters, as pilot.

=2. Towage Service.=--This is rendered by the tug to the tow. Tugs are usually specially built and equipped for the business and supply a very important aid to commerce and navigation. The service is generally by contract or informal agreement and includes both the short work in shifting vessels in port and the long voyage and season contracts along the coast and in the canals and Great Lakes. It may be performed in various ways. Sometimes the tug is lashed to the tow and supplies motive power only and sometimes she pulls several vessels behind her upon hawsers from each to the other of great length. The legal relations, however, are usually the same.

The tug should be supplied with hawsers of sufficient strength to hold the tow in any weather which may be reasonably anticipated, unless the tow itself supplies them. Where the tug is given full control, it should arrange the order of towage and the distances apart. It should also arrange, by an understood code of signals, for shortening, lengthening, or casting off the lines, as exigencies of navigation may require. Vessels of heavy draft should be placed behind those of lighter draft. The speed of the tug should be such as is reasonably safe for the condition of the tow and sudden jerks and turns must be avoided. Disaster does not necessarily absolve the contract of towage. On the contrary, it is quite settled that it is the duty of the tug to continue to do all in its power to get its tow out of situations of difficulty and danger, short, of course, of sacrificing its own safety. It is not relieved from its obligation because unexpected difficulties occur and may not lightly abandon the tow to its fate. Extraordinary services under a towage contract may secure a salvage reward, but too great haste in abandoning it will impose a corresponding liability.

=3. Compensation.=--The rate of compensation is determined by express contract, or in the absence of such contract by the customary rates prevailing in the port or locality, and in the absence of contract or custom by the fair value of the service rendered. Unless the service performed amounts to a case of salvage the compensation will not be determined by the rules governing salvage. Towage services are presumptively a maritime lien on the tow, and where the owners of the tow contend that the service was performed upon their personal credit, instead of upon that of the vessel, they must affirmatively establish that fact (Erastina, 50 Fed. 126). The lien for towage and pilotage is in general superior to all liens except those for salvage and seamen's wages and "preferred mortgages" given on American ships pursuant to the Merchant Marine Act of 1920 (see Appendix). Thus the Court in the Mystic, 30 Fed. 73, said:

I am of the opinion that this claim of towage is and should be considered a maritime lien upon the schooner. It is a conceded fact in this case (and if it were not, probably the court would take notice of the usual course of maritime business in this port) that all vessels entering and leaving the port of Chicago are required by the ordinances of this city to do so in the tow of a tug; and the usual course of business is for the tug to take vessels in tow at some point outside of the entrance to the harbor, and tow them to the dock to which they are consigned. This class of service takes the place of the labor of the crew, and I can see no reason why it is not to be treated as next in rank, if not in the same order of priority, as seamen's wages. It is probably, however, more analogous in the nature of the service to pilotage, as the use of the tug dispenses with the necessity of a pilot to bring the vessel into the harbor and take her to her dock; and by such analogy ought undoubtedly to be subordinate to the seamen's wages. The court must take notice of the fact, that by the introduction of steam even sailing vessels have become largely dependent upon tugs and towing vessels to take them into and out of harbors; and this is specially necessary in a harbor like that of this city where there are long devious channels which can only be threaded by the aid of a tug, or the almost impracticable means of warping.

=4. Duty of Tug.=--The tug is not a carrier as to the tow but only a bailee. This means that it is not liable for accidents except as it is proved to have been negligent or wanting in ordinary care. While the relation depends on contract, the obligations are mostly those implied by law from the relations of the parties although they may vary them as they please by express agreement. In general, the tug engages to make the trip or voyage without delay or deviation or undue peril; to be sufficiently equipped and manned and in all respects seaworthy; to exercise reasonable diligence and the ordinary skill of the profession; in case of storm or danger, to protect the tow, by seeking a port of refuge, or slowing, stopping, sounding, and otherwise exercising due care, until the occasion subsides. She is, however, only bound to do what is consistent with her own safety and may, therefore, abandon the tow when circumstances of great peril require it. The tug is bound to see that the tow is properly made up for the proposed voyage; to know the sailing qualities of the vessels in charge and the character of the waters, currents, harbors and shoals before them.

If the tow furnishes its own hawsers or towing lines, it must see to it that they are sufficient for all the purposes of the voyage and that they are properly fastened on board. There is an implied representation of seaworthiness in offering a vessel to be towed and the tug has the right to assume that the ship is sufficiently staunch and equipped for the voyage proposed. Thus in the case of the Syracuse, 18 Fed. 828, it was said that:

Justice requires that the continued running of old boats should be closely scrutinized and their owners should not be suffered to conceal their infirm condition, and, when accidents happen, get them repaired or recover as for a total loss, at the expense of others. The owner is bound to give notice of any infirmity about his boat. If she be not staunch and strong; and where this is not done he must be held jointly or solely responsible for such injuries as the present; according to the other circumstances of the case.

The tow must not be overloaded or improperly steered. The obligations of the contract are largely mutual and correlative for generally the tow is largely under the control of her own company and the tug is furnishing motive power and guidance only. Each party to the contract is bound to do its part towards completing it and each vessel involved must use proper skill and diligence in performing its part. The tow is not insured against damage because the tug has taken it in charge. It must not create unnecessary risk, or increase any perils by neglect or mismanagement. The obligations of good seamanship remain on the tow and it is bound to be vigilant and prompt in meeting them. In illustration of these principles one or two cases may be noticed: In the Marie Palmer, 191 Fed. 79, the four-masted schooner _Marie_ _Palmer_, bound from a northern port to Savannah with cargo, encountered heavy weather off Cape Hatteras and put into a North Carolina port, where it was found by a board of survey that she was leaking but could proceed under tow, and the tug _Edgar F. Coney_ was employed to take her to Savannah for an agreed price. The vessels started on a clear day with a light breeze and had proceeded 85 miles when, shortly after dark, the schooner stranded on Frying Pan Shoals and became a total loss. The schooner, shortly prior to stranding, asked the tug if they were not too far in shore, but was answered in the negative. The navigator mistook the Cape Fear light for a gas buoy shown on the chart, although the two were entirely different in height and character, and were fourteen miles apart. There was a deviation in the tug's compass and the card for its correction was not at hand. The master of the schooner libeled the tug. The Court said:

Now it is true that under a contract of towage, the owner of the vessel towing does not insure against marine perils. It is true, however, that he must obey the law, and, in the protection of the life and property intrusted to his sole control, he must exercise that degree of caution and skill which navigators of prudence usually employ in such service. He is held bound to know the waters, the channels, well-defined 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; and he is bound to exercise such skill and knowledge for the protection of her tow....

It is true that, under ordinary circumstances, damage to a vessel while being towed raises no presumption of fault on the part of the vessel towing; but, where the evidence preponderates to show such negligence, it may be found to exist, although no presumption is allowed in favor of the tow. It has, however, been held by the Supreme Court of the United States in the Webb, 14 Wall. 406, that under certain circumstances, if a ship is towed upon a shoal, that the fact of stranding at such place would, in the absence of explanation "be almost conclusive evidence of unskillfulness or carelessness in the navigation of the tug. The place where the injury occurred would be considered in connection with the injury itself, and together they would very satisfactorily show a breach of the contract, if no excuse were given. At least they would be sufficient to cast upon the claimants of the tug the burden of establishing some excuse for the deviation from the usual and proper course."

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In the case now under consideration the compass of the tug was inaccurate. The card showing the deviation was not kept before the helmsman. The course was plainly marked and widely known. The tug and tow starting early in the morning proceeded, until the stranding, but 85 miles only. Frying Pan Shoals is not less widely known than any other on the coast. The captain of the tug, Myers, laid the course, as he testifies, for the buoy. He might have passed it in safety anywhere within a mile to the landward, and, in a practical sense, anywhere to the seaward. He wrecked his tow 4-1/2 miles to the landward of the buoy, and 13-1/2 miles from the Cape Fear Light, which he may have mistaken for the buoy. There was no sudden exigency to divert the judgment. There was abounding opportunity to take the bearings of the lights, and to make soundings. The stranding itself occurred shortly after dark only, in the evening of a clear day, and shortly after the master of the tug had received from the master of the tow urgent and explicit warning of the danger. If under these conditions, as we find them to exist, there is no liability on the tug, which in obedience to the official finding of the surveyors was voluntarily towing the schooner to her port of destination for the agreed-upon compensation, a case which would warrant a finding of liability for similar service or any default seems wholly inconceivable.

In the case of the tug Quickstep, 9 Wall. 665, the owner of the canal boat _Citizen_ filed a libel _in rem_ against the tug, alleging that the tug attempted to tow too many loaded boats and in consequence of which one of the boats broke loose, and the tug while backing in an attempt to pick her up collided with and sank the _Citizen_.

The inquiry is: Who is to blame for this? Clearly not the _Citizen_, for it does not appear that her conduct in any way contributed to the accident. If the tug, in constructing the tow, used the lines furnished by the different boats, yet as each boat was independent of the other, no responsibility can attach to either for the breaking of the line, which she did not provide, and had nothing to do with making fast. In this case neither the bridle line nor the line that first parted were supplied by the _Citizen_, and she ought not to suffer for their insufficiency. It is well settled that canal-boats and barges in tow are considered as being under the control of the tug, and the latter is liable for this collision, unless she can show it was not occasioned by her fault.

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, and that the lines were sufficient and securely fastened. This was an equal duty, whether she furnished the lines to the boats, or the boats to her. In the nature of the employment, her officers 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 duty she was guilty of a maritime fault. The parting of the line connecting the boat in the rear on the port side with the fleet, was the commencement of the difficulty that led to this accident. In the effort to recover this boat, the consequences followed which produced the collision. If it was good seamanship on the part of the captain of the tug to back in such an emergency, he was required, before undertaking it, at least to know that his bridle line would hold. And if the sea was in the condition the captain of the tug says it was, it was bad management to back at all. Whether this be so or not, he was bound, in executing a maneuver to recover the detached boat, to look to it that no other boat in the fleet suffered in consequence of it.

A tug is not required to subject herself to damage in order to protect her tow. An illustration of this is found in the case of the Mosher, 17 Fed. Cas. No. 9874, from which the following is quoted:

The schooner _Nicaragua_, owned by libellants, on the 6th of August having encountered a heavy wind and high sea, which continued during the day, came to anchor, and shortly after, the tug _Mosher_ took her in tow. The schooner furnished the tow line. The first broke; a second bore the strain. The vessel in the act of being towed into the harbor was stranded and ultimately lost. Is the tug responsible for this loss?

It is charged that the accident happened through the negligence and want of care of the officers of the tug, and that, at any rate, the disaster would not have been so ruinous, if these officers had used proper efforts to relieve the _Nicaragua_. The first question is, what degree of diligence and skill was required of the tug? The rule is well settled that reasonable diligence and ordinary skill is the measure of the tug's duty. The tug did not engage to insure the safety of the tow, nor for the use of the highest nautical skill. I think Judge Drummond stated the rule fairly, that the tug is bound to know the ordinary and proper channel into the harbor and to exercise reasonable skill under the circumstances, in towing the vessel.

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Like the district judge, I do not wish to relax the need of caution of tugs in towing vessels nor establish harsh rules to make them insurers of property.

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In what respect did the _Mosher_ show less diligence and skill than required? The schooner having taken the chances of entering the harbor in a storm, the tug is not to be held responsible, in the absence of proof of negligence, if the schooner touched some ridge of sand. It is urged that she went aground on the old sand-bar. Although satisfied that she was ultimately wrecked there, I am not satisfied she first struck there. The winds and waves drove her south, and the probability is that her first position was changed.

But the tug is blamed for not using more effort than she did to get the schooner off the bar; in other words, is charged with fault in abandoning the schooner too soon. It is hard to get at the truth for the witnesses on each vessel differ materially in their account of what occurred. At the argument it did seem to me that the tug left the schooner to her fate sooner than she ought to have done, but since reading the testimony, I cannot say that she did not employ all the means practicable and consistent with her own safety. The captain of the tug was not obliged to stay by the schooner if in good faith he believed he would endanger his own vessel. On both points he is supported by the testimony. I think the decree dismissing the libel should be affirmed.

=5. Duty of Tow.=--The vessels in tow must be properly manned and equipped and carefully follow the tug. They must be vigilant to observe all orders and signals. They must be ready, in case of emergencies, to cast loose from the tug and each other, if thereby collision or stranding may be avoided.

In the Marie Palmer, 191 Fed. 79, above cited, the tug defended the suit brought by the schooner on the ground that the schooner was unseaworthy when taken in tow. The unseaworthy condition of a tow is a good defense to such a suit if that fact be concealed from the tug, but not where the condition of the tow is known to the tug.

Equally ineffective is the plea that the master of the tug did not know the extremities to which the schooner had been reduced before he undertook the towage service. The _Palmer_ was found storm bound, at anchor, in Lookout Bight. Had she been entirely seaworthy under her sail power, the contract to tow her would have been superfluous. These facts were known to the master of the tug. But, if this were not sufficient, that officer must have taken notice of the vital fact that her storm tossed condition had been passed upon by an official board of survey, and that body, after careful examination, had found that she might proceed with her voyage under tow. It was optional with the captain of the tow boat to accept that finding, and take the tow. Certainly it put him upon notice of inquiry, and he did not hesitate to take the tow as in the condition in which the board of survey found her.

=6. Negligence.=--The tug is liable for negligence only, apart from the terms of any special contract, and then only for such negligence as is the proximate cause of the loss. Negligence is the failure to observe the rules of navigation or to employ the requisite degree of care and skill of competent mariners in like situations. The burden of proving negligence usually rests upon the party charging it but towage sufficiently resembles the contract of carriage as frequently to present cases in which the mere happening of an accident to the tow creates a presumption of negligence on the part of the tug. Thus the pleadings themselves may require the tug to explain the disaster and prove that she was not at fault. This presumption has been applied where the tow is stranded off its proper course in calm weather; or where the tug has grounded the tow while proceeding through a fog at full speed without soundings; or where the tow has been brought into collision with an anchored vessel; or where the accident occurs in a customary channel; or where the tug's steering gear and equipment prove insufficient; or where the tow strikes a known obstruction to navigation.

The case of the _Marie Palmer_, heretofore cited, is an example of negligence on the part of the tug.

Where, from the negligent operation of a tug, damage is inflicted by a tow, although the tug herself does no damage, a maritime lien for tort arises against the tug and not against the tow. In the Clara Clarita, 23 Wall. 1, the tug engaged and undertook to tow a burning vessel from her berth to a point where it was intended to beach her. While in tow the flames burst through the deck of the burning vessel and severed the hawser by which she was attached to the tug, causing her to drift upon and set fire to the libellant's schooner. Although the tug was far away when the damage was done, the court held her to be in fault because under the circumstances the burning of the hawser ought to have been foreseen and the owners of the damaged schooner were held to be entitled to a maritime lien upon the tug for the damage suffered. It was also held that the tug alone and not the owners of the burned tow should respond in damages. A tug is held not to be the agent of her tow but to occupy the position of an independent contractor. The Court said:

By employing a tug to transport their vessel from one place to another the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the services, as they neither appoint the master of the tug nor employ the crew, nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master of the tug, is, in legal contemplation, made with the owners of the vessel employed; and the master of the tug continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation and management.

On the other hand cases may arise in which the tow alone and not the tug is liable for injury to a third vessel or person. Thus in Albina Ferry Co. _v._ Imperial and S. G. Reed, 38 Fed. 614, the tug _S. G. Reed_ had in tow the ship _Imperial_. The ferry boat _Veto No. 2_ was operated on a wire cable. The _Imperial_ struck the cable, causing the ferry boat to sustain some damage. The tug was employed by the pilot of the _Imperial_ for the purpose of towing the vessel and at the time of the collision was in the control and service of the ship. There was no evidence of any fault on the part of the tug or of any one employed on her. The Court said:

Under these circumstances the steamboat (i.e., tug) and the ship constitute but one vessel and that vessel was the ship. The tug was the mere servant of the tow, and both were under the control and direction of the pilot in charge of the latter. Admitting for a moment that a wrong has been committed, the owners of the _Imperial_, through their agent, the pilot in charge, are the wrongdoers, and their vessel is alone liable therefor. The owner of the _Reed_ did not participate in the supposed wrong, neither by itself nor by its servants. As well say that the wrong of a person who recklessly rides another down in a public thoroughfare is the wrong of the liveryman from whom he hired the horse.

It is not denied that there may be and have been cases in which both tug and tow are liable for the damage sustained by a collision. But in such case both participate in the management of the vessel, and the negligence of misconduct causing the same.

A case in which both tug and tow were held liable is that of the Civilta and the steam tug Restless, 13 Otto 699. In this case the tow had on board a pilot and the tug was subject to his orders. The libellant's schooner was struck by the hawser, then by the tow. The court said that the tow and tug were, in law, one vessel, and the question was, which one? It was held:

The tug furnished the motive power for herself and the ship. Both vessels were under the general orders of the pilot on the ship, but it is expressly found as a fact that the tug actually received no orders from him. Being on the ship, which was two hundred seventy feet astern of the tug, it is not to be presumed that he was to do more than direct the general course to be taken by the ship in getting to her place of destination. The details of the immediate navigation of the tug, with reference to approaching vessels, must necessarily have been left to a great extent to those on board of her. She was where she would ordinarily see an object ahead before those on the ship could, and having all the motive power of the combined vessels under her own control, she was in a situation to act promptly and do what was required under the circumstances.

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We do not entertain a doubt that, situated as the tug was, in the night, so far away from the ship, it was her duty to do what was required by the law of a vessel under steam, to keep herself and the ship out of the way of an approaching vessel, particularly if the pilot of the ship did not assume actual control for the time being of the navigation of the two vessels.

Such being the case, we think it clear both vessels were in fault.

A decree was accordingly given against both the ship and the tug and the damage apportioned one-half to each with the provision that if either of the vessels should prove insufficient to pay its share the residue might be collected from the other.

=7. Liability for Damage.=--A. _As Between Tug and Tow._--If the wrongful act or breach of contract of either tug or tow occasions damage to the other, liability will follow and usually a maritime lien. The owners of the tug have a lien upon the tow for the price of the towage and the owners of the tow and its cargo have a lien upon the tug for failure to perform the contract or damages sustained through negligence.

An example is found in the Cayuga, 16 Wall. 177. There the tug _Cayuga_ undertook a tow of thirty canal boats and barges from Albany to New York. The tow was faultily made up by the tug, libellant's canal boat being upwards of 1,000 feet astern of her. By reason of this faulty make-up and of the method of navigation adopted by the tug, libellant's canal boat was twice brought into collision with obstacles in the river, the first time with a lighthouse and the second with a submerged rock. The result of the second collision was the loss of the boat. The tug defended on the ground that the canal boat was unseaworthy and that her captain was negligent in cutting her loose from the tow immediately after the second collision.

Even where a contract of towage specifically provides that the tow is being conveyed at her own risk, the tug will be liable in admiralty if through the tug's negligence the tow is injured. The contract will not avail as a defense against negligence (The Syracuse, 12 Wall. 167).

In the case of the Wm. H. Webb, 14 Wall. 406, the owner of the steamship _Shooting Star_ brought a libel _in rem_ against the tug _Wm. H. Webb_ for breach of contract to tow the _Shooting Star_ from Portsmouth to New York, charging negligence and mismanagement in the towage, whereby the tow was grounded on Tuckernuck Shoal, which was more than three miles out of the proper course. The court held that the tug was negligent and, therefore, liable. Mr. Justice Strong said:

It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services.

The action for negligent performance of the towage contract may be either against the tug or its owner by the owners or underwriters of the injured property. The damages are those which naturally follow the breach; if the tow and cargo are totally lost, the market value, at the time and place of the loss, with interest, will be allowed as in cases of loss by collision; if the loss is partial then the expenses of repairs, with compensation for loss of use, or demurrage for the time which the work of rescue and repair occupies. Where the tow is old and unseaworthy, the admiralty sometimes apportions the damages. Where both tug and tow are at fault the damages will be divided between them according to the usual admiralty rule[23] (see the Civilta and the Restless, 13 Otto 699, _supra_).

B. _To Third Parties._--Where a third party is damaged through the fault of a tug or the vessel which she has in tow, the party damaged has a right of action against the author of the injury. It is often said that the tug and her tow constitute a single entity. This is true to the extent that where through the negligent operation of the tug damage is done to a third party by one of the vessels in tow, the responsibility rests upon the tug, but responsibility in such cases will not ordinarily attach to the vessel in tow. The tow may be liable in such a case, on the theory that the tug is her agent, but if the tug occupies the status of an independent contractor no liability rests upon the tow. We have seen in the Clara Clarita, 23 Wall. 1, cited in § 5, _supra_, a case in which a tug was held liable for damage by the tow and in which the tow was held to be free from liability because the tug was not her agent. In the case of Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, decided December 8, 1919 (U. S. Supreme Court Advance Sheets, 85), a car float was lashed to the side of the steam tug _Intrepid_, and through the negligent operation of the tug the float was driven into collision with the S. S. _Vauban_, the tug, herself, not coming into collision. It happened that the car float and tug belonged to the same owner. It was held that the responsibility was that of the tug alone; that she might limit her liability to her own value; that the float belonged to the same owner made no difference, and the float accordingly escaped liability. Mr. Justice Holmes said:

The car float was the vessel that came into contact with the _Vauban_, but as it was a passive instrument in the hands of the _Intrepid_, that fact does not affect the question of responsibility (citing numerous cases).

These cases show that for the purposes of liability the passive instrument of the harm does not become one with the actively responsible vessel by being attached to it. If this were a proceeding _in rem_ it may be assumed that the car float and disabled tug would escape, and none the less that they were lashed to the _Intrepid_, and so were more helplessly under its control than in the ordinary case of a tow.

It is said, however, that when you come to limiting liability, the foregoing authorities are not controlling,--that the object of the statute is "to limit the liability of vessel owners to their interest in the _adventure_," and that the same reason that requires the surrender of boats and apparel requires the surrender of the other instrumentalities by means of which the tug was rendering the services for which it was paid. It can make no difference, it is argued, whether the cargo is carried in the hold of the tug or is towed in another vessel. But that is the question, and it is not answered by putting it. The respondent answers the argument with the suggestion that, if sound, it applies a different rule in actions _in personam_ from that which, as we have said, governs suits _in rem_. Without dwelling upon that, we are of opinion that the statute does not warrant the distinction for which the petitioner contends.

In the case of Sturgis _v._ Boyer, 24 How. 110, the ship _Wisconsin_, which was being towed by the tug _Hector_, collided with the lighter _Republic_ in New York harbor. The owners of the lighter libeled both the tug and the tow. The owner of the tug filed an answer, setting up that the tug was merely the motive-power to move the ship to the pier, that the tug and her crew were subject to and obeyed the orders of the master and other officers in charge of the ship, and prayed that in case the libellants should recover any sum against the ship and tug, that he, the owner of the tug, might have decree over against the ship. The owners of the ship admitted that she had a master and a full crew on board, but alleged that they were all under the direction and control of the master and officers of the tug. The Court was clearly of opinion that a case of negligence was made out by the owners of the lighter, and the only question in doubt was as to the relative responsibility of the tug and vessel in tow.

Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction and management of the master and crew of the tow. Fault in that state of the case cannot be imputed to the tug, provided she was properly equipped and seaworthy for the business in which she was engaged; and if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case supposed do not sustain towards those entrusted with the navigation of the vessel the relation of the principal. But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage through the fault of those in charge of the vessels must, under such circumstances, look to the tug, her master or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unseaworthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf, that a part, or even the whole of the officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise, and from the nature of the undertaking, and the usual course of conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation.

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Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug, or ship the crew; nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation.

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Whether the party charged ought to be held liable, is made to depend, in all cases of this description, upon his relation to the wrongdoer. If the wrongful act was done by himself, or was occasioned by his negligence, of course he is liable, and he is equally so, if it was done by one towards whom he bore relation of principal; but liability ceases where the relation itself entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged.

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Applying these principles to the present case, it is obvious what the result must be. Without repeating the testimony, it will be sufficient to say, that it clearly appears in this case that those in charge of the steam tug had the exclusive control, direction and management of both vessels, and there is not a word of proof in the record, either that the tug was not a suitable vessel to perform the service for which she was employed, or that any one belonging to the ship either participated in the navigation, or was guilty of any degree of negligence whatever in the premises.

=8. Pilots.=--There are port and sea pilots, the latter being a name for those of her officers who navigate the ship at sea and the former meaning those who take the ship in and out of harbor. Port or coast pilots are a class by themselves, exercising an office of great importance, and usually regulated by law. This is the class referred to in U. S. Comp. St. 1916, § 7981, where it is enacted that "until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose." The former class, or sea pilots, are dealt with by Congress in §§ 8204, 8205, 8206, 8207, 8208, etc., of the same volume. The several states may, therefore, regulate and license port pilots, that is, the class whose employment is to guide vessels in and out of their respective ports. They may make it a criminal offense for a pilot not duly qualified under their laws to take a vessel through their waters and make all requisite provisions in regard to qualifications, fees and licenses, so long as Congress refrains from further legislation on the subject. Most of the States on the seaboard have such statutes, different somewhat in detail but generally similar in effect. Ships are not absolutely bound to accept the services of such pilots but must pay their fees, in whole or in part, if services are tendered and declined.

=9. Duties.=--The pilot is the servant of the owner, if voluntarily employed, otherwise not. Like other persons, he is answerable for any damage he may cause by negligence or default. Occupying a quasi-public position and the ship not being free to decline his services, it is his duty to render his services, when requested, to the best of his ability. If he refuses, he may be liable both civilly and criminally. The ancient sea-laws were stringent in this regard; the Laws of Oléron, for example, provide that if disaster is sustained by the ignorance of the pilot, he shall be obliged to make full satisfaction therefor, and, if he has not wherewith to make satisfaction, the master, or any one of the mariners or merchants may cut off his head and shall not be bound to answer for it. When a pilot takes charge of a vessel at sea, it is his duty to stay by her, unless discharged, until she reaches her destination or some place of safety. He is held to be able to anticipate the action of the wind and sea on boats in his charge. He must be thoroughly familiar with the topography and character of the waters for which he offers his services, and keep acquainted with all changes therein, both as to fixed and temporary landmarks and also as to the character of the bottom and presence of temporary obstructions therein.

=10. Authority.=--While a pilot is on board he has absolute and exclusive authority in the absence of the master, and, probably, ranks the master when he is present. The authorities are not plain or satisfactory on this point, but there ought not to be any divided authority, particularly in such navigation as that for which the law requires the employment of a pilot. Unless the master retains, or reassumes, charge of the ship, the pilot has exclusive control and all are bound to obey his orders; he is an officer of the ship within the meaning of the statutes in regard to revolts and mutinies. But the master's authority is not annulled and it would be his duty to interfere in case of gross ignorance or palpable mistake on the part of the pilot.

Thus, in the case of the China, 7 Wall. 53, where the pilot was employed under a compulsory pilot law, the Court said:

It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it or not, according to his discretion.

In Ralli _v._ Troop, 157 U. S. 386, Justice Gray said:

To the pilot, therefore, temporarily belongs the whole conduct of the navigation of the ship, including the duty of determining her course and speed, and the time, place and manner of anchoring her. But the master still has the duty of seeing to the safety of the ship, and to the proper stowage of the cargo. For instance, the duty to keep a good lookout rests upon the master and crew. And it has been held by Dr. Lushington, in the English High Court of Admiralty, that, although a pilot is in charge, the trim of the ship is within the province of the master; as well as the duty, if two vessels entangled together, to cut away part of the rigging of his vessel, when necessary, in order to avoid a collision, or to lessen its effect, because the vessel, the judge said, "was not under orders of the pilot for this purpose; she was only under the pilot's directions for the purpose of navigation; and the master, in a case of this description, is not to wait for the pilot's directions, which would tend to create great confusion and delay."

=11. Compensation.=--Compensation of pilots is largely regulated by local statutes and where their employment is compulsory, an offer of service, if declined, will nevertheless create a liability for full or partial fees against the vessel. If no fees are fixed by local law, the amount will be measured by what is customary or fair and reasonable. By the general maritime law, the pilot has a lien upon the ship for services rendered which is of high rank and priority (but is junior to a "preferred mortgage given on an American ship pursuant to the Merchant Marine Act of 1920", see Appendix). By acting as master, he may waive his lien as pilot in those cases where there is no lien for a master's services; and, correspondingly, one who is engaged and ships as a pilot of a vessel, whereon another stands as registered master, has a lien on the boat for his wages although he may be in entire charge of her navigation.

=12. Negligence.=--The pilot is considered as the master for the time being and is answerable for any loss or injury caused by his want of skill. Such negligence may consist in lack of knowledge of the locality or failure to handle the ship with ordinary care. In general he must exercise the ordinary care and skill of his profession and failure so to do will render him liable for negligence. Harbor pilots, for example, are selected for their personal knowledge of the topography through which they take the ship and are deemed to know all its landmarks, channels, courses, constructions and local regulations. All these they must know and remember and observe. They must be expert in their business and each must furnish the same degree of care and skill commonly possessed by others in the same vocation. Thus pilots have been held liable for running a vessel against a pier freshly built into the channel; for failing to appreciate the significance of fixed lights; for towing in a gale; for hugging the shore on a dark night; they are answerable for the safety of the property in their charge and, in the event of damage or loss, will be released from liability only by showing that the causes were beyond their control, as by proving due care and skill or that the cause was an act of God or unavoidable emergency. Where a vessel in his charge is brought into collision and pays, either under a decree or through a reasonable settlement, the damages arising therefrom, the pilot may be held liable over to her owners for what they have been so compelled to pay. But members of pilots' associations are not jointly liable for the negligence of their members even if their earnings go into a common fund.

A case illustrative of the duties and responsibilities of a pilot is that of Wilson _v._ Charleston Pilots' Association, 57 Fed. 227. The master of the schooner _Kate Aitken_, which was in Charleston harbor and was about to go to sea in tow of the tug _Relief_, applied to the Association for a pilot, and Mr. Bringloe was assigned to him. When the pilot boarded the schooner he asked the master whether he preferred the pilot to be on the tug or on the schooner. It was the custom to put the pilot on the tug, unless the master wished otherwise. The master expressed his preference that the pilot should be on the tug. The Court remarked in passing "that if disaster occur because the pilot is on the wrong boat he cannot excuse himself by reason of any preference of the master. He is employed because of his supposed knowledge of all that is necessary to take a vessel to sea." The pilot took his place on the tug and gave direction with regard to the position of the hawser. He took his position on the top of the house and constantly directed the movements of both tug and schooner. Nevertheless the schooner went aground. The Court said:

Is the pilot responsible in damages for this accident? He was in control of the movements of the tug and of the tow. He was charged with the safety of the schooner, and of all that she carried, being bound to use due diligence and care and reasonable skill in the exercise of his important functions. He is answerable if the schooner suffered damage through his default, negligence, or want of skill, while her helm was under his control. He was not an insurer, and is only chargeable for negligence if he fail in due knowledge, care, or skill in avoiding obstructions known or which should have been known to him. If he used his best judgment and skill in avoiding known dangers, he cannot be held liable, although the result may show that his judgment was wrong. "It is settled that if the occupation be one requiring skill, the failure to exert that needful skill, either because it is not possessed or from inattention, is gross negligence." Curtis, J., in the New World _v._ King, 16 How. (U. S.) 469. An eminent text writer, whose name is authority, lays down the principle:

"Every man who offers his services to another, and is employed, assumes to exercise in the employment such skill as he possesses with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offer his services, he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. But no man, whether skilled or unskilled, undertakes that the task he assumes shall be performed successfully and without fault or error. He undertakes for good faith and integrity, but not for infallibility; and he is liable to his employer for negligence, bad faith, or dishonesty, but not for losses consequent on mere error of judgment."

This is the law of this case.

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There is a total absence of evidence tending to show want of knowledge, want of care, or want of skill, or bad faith, except the fact of the accident itself. This is not a case in which the fact of the accident is conclusive of the cause. If the grounding arose from the act of the pilot, it was by an error of judgment. The distinction between an error of judgment and negligence is not easily determined. It would seem, however, that if one assuming a responsibility as an expert possesses a knowledge of facts and circumstances connected with the duty he is about to perform, and if he brings to bear all his professional experience and skill, weighs these facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, the want of success, if due to such course of action, would be attributed to error of judgment, and not to negligence. But if he omits to inform himself as to facts and circumstances, or does not possess the knowledge, experience, or skill which he professes, then, if failure is caused thereby, this would be negligence. But it does not appear that the accident was occasioned by an error of judgment on the part of the pilot.

=13. Liability of the Ship.=--The ship will be liable for damage done while in charge of a pilot unless there is a special exemption by local law.

Where the law requires the ship to take a pilot on board and to surrender the navigation of the ship to him, the master and owners are exempt from responsibility for damages resulting from the mismanagement of the pilot. The reason is this: The laws which establish such compulsory pilotage are intended to secure, as far as possible, protection to life and property, by supplying a class of men better qualified than ordinary mariners to take charge of ships where navigation is attended with unusual difficulty on account of local conditions; the master, however well qualified, is compelled under penalty to abdicate his authority in favor of the pilot, and, if so, it is unjust that either he, or the owner, should be personally answerable for the errors of an official in whose selection he had no choice. The responsibility of an owner for the acts of his servant rests upon the presumption that the owner chooses the servant and gives him orders which he is bound to obey and that responsibility ceases when the law supplants the owner's choice. Therefore neither the master nor the owner can be successfully sued at common law, or personally in the admiralty, for damage done by a compulsory pilot. This was held on a full consideration of the American and English authorities by Justice Gray in Transportation Co. _v._ La Compagnie Générale Transatlantique, 182 U. S. 406, which is very instructive in this connection.

The ship, however, is liable for such damage, although in charge of a compulsory pilot. The reason is this: By American admiralty law, the ship is treated as a personality for many purposes and, in whosesoever hands she may lawfully be, is treated as the actual wrongdoer, irrespective of any question of agency or employment. Thus, in this country, the ship by whose fault a collision has occurred may be sued directly, although in charge of a compulsory pilot at the time the disaster occurred. In England the rule is different and the ship is not liable if the owner could not be sued. The leading American case on this point is that of the China, 7 Wall. 53. The _China_, while under the control of a compulsory pilot, was in collision with the brig _Kentucky_, which was wholly free from blame. On a review of the English and American authorities the Court (Swayne, J.) held:

The services of the pilot are as much for the benefit of the vessel and cargo as those of the captain and crew. His compensation comes from the same source as theirs. Like them he serves the owner and is paid by the owner. If there be any default on his part, the owner has the same remedies against him as against other delinquents on board. The difference between his relations and those of the master is one rather of form than substance.

* * * * *

The maxim of the civil law--_sic utere tuo ut alienum non laedas_--may, however, be fitly applied in such cases as the one before us. The remedy of the damaged vessel, if confined to the culpable pilot, would frequently be a mere delusion. He would often be unable to respond by payment--especially if the amount recovered were large. Thus, where the injury was the greatest there would be the greatest danger of a failure of justice. According to the admiralty law, the collision impresses upon the wrong-doing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong and must be perfected by subsequent proceedings. Unlike a common law lien, possession is not necessary to its validity. It is rather in the nature of the hypothecation of the civil law. It is not indelible, but may be lost by laches or other circumstances.

The proposition of the appellants would blot out this important feature of the maritime code, and greatly impair the efficacy of the system. The appellees are seeking the fruit of their lien. All port regulations are compulsory. The provisions of the statute of New York are a part of a series within that category. A damaging vessel is no more excused because she was compelled to obey one than another. The only question in all such cases is, was she in fault? The appellants were bound to know the law. They cannot plead ignorance. The law of the place makes them liable. This ship was brought voluntarily within the sphere of its operation, and they cannot complain because it throws the loss upon them rather than upon the owners of the innocent vessel. We think the rule which works this result is a wise and salutary one, and we feel no disposition to disturb it.

REFERENCES FOR GENERAL READING

_Admiralty_, Hughes, 117-124; 28-38.

_Admiralty Reports_, Brown, Williams, 208.

Sturgis _v._ Boyer, 24 How. 110.

_Collisions_, Marsden, Chapter VIII.

Webb, 14 Wall. 406.

[23] See § 9, Chapter XI, _supra_.