During the period of an ordinary towage engagement the tug is bound to obey the orders of the master of the tow, or of the pilot on board of her,1 and is not responsible for the mismanagement of the master, or of the pilot, if one be on board the tow, if she attends to and fulfils, or endeavours to fulfil, the directions given from the tow.2 If, however, the direction of the course of the two vessels is left to the discretion of that which is towing, and the governing power is in her, as not unfrequently happens if one large steamer takes in tow another which is disabled, the tug will be liable if any injury is caused to a third ship-either directly if she herself is the cause, or indirectly if done by the tow-since the latter would have a remedy over against her for any damages recovered by the third ship. It has been decided that when there has been a breach of a towing contract by improper navigation on the part of the tug, by which the tow has been injured, the owners of the tug can limit their liability under the ordinary statutory provisions, though a breach of such a contract not arising from improper navigation would not bring the owners of the tug within the Act.1 occasioned to a pier by a ship, consequently this decision may be applicable to cases in which a ship through the negligence of its tug does such damage. 1 The Christina, 3 W. Rob. 27. The Duke of Sussex, L. R. 3 Ad. 48; 39 L. J. 25; The Julia, Lush. 224; 14 Moo. P. C. 210; The Ocean Wave, L. R. P. C. 205; 6 Moo. P. C. N. S. 492. Since the case of The Mary, L. R. 5 P. D. 14; 48 L. J. Ad. D. 66, it is doubtful if a tug can obtain the benefit of the law as to non-liability in case of damage arising from the fault of a compulsory pilot. The basis of this decision appears to be that the tug entered into the contract of service voluntarily, and must therefore take the chances of the engagement; but this case is not easily reconciled with those already cited above. It must also be pointed out here that as a pilot cannot be continually giving orders to the tug, if the latter adopts a wrong manoeuvre when the proper course was reasonably apparent, the tow will be held to blame for the fault of her servant, since this will not be considered as a fault on the part of the pilot. The Sinquasi, L. R. 5 P. D. 241; 50 L. J. Ad. D. 5. 3 The American and Syria, L. R. 6 P. C. 127; 43 L. J. Ad. 30, 4 Wahlberg v. Young, 45 L. J. C. P. D. 783, sions of this sub ject. CHAPTER III. DAMAGE BY COLLISION, AND BREACH OF DUTY OR CON- The divi- THE subject of damage may be divided into four parts, that is to say, damage: I. To persons; II. To ships; III. To things other than the foregoing and cargo, as wharves, piers, &c.; IV. To cargo, under which head it is convenient to include damage by breach of contract or of duty in the carrying of cargo. The jurisdiction of The jurisdiction of the Admiralty Division over actions the Court. for damage is based at the present time partly on the original maritime jurisdiction of the High Court of Admiralty, partly on two modern statutes. The material portions of these are as follows: "The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever for damage received by any ship or seagoing vessel, and to enforce the payment thereof whether such ship or vessel may have been within the body of a county or upon the high seas at the time when the damage was received in respect of which such claim is made." And "The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship."3 The Court has jurisdiction in rem or in personam against the person who may have caused the damage, though it does not extend to actions against pilots per As to this, see judgment of Justice Story, in De Lovio v. Boit, 2 Gallison, 396 (A.); Introduction to Pritchard's Digest. 3 & 4 Vict. c. 65, s. 6. 3 A. C. A. 1861, s. 7. sonally.1 If one remedy has proved insufficient, the other may be employed, and likewise if a judgment is recovered. in the Queen's Bench Division and proves inadequate to fully compensate the plaintiff, he may sue in rem in the Admiralty Division, but he will not be allowed to bring two actions concurrently.2 The jurisdiction over damage by collision extends to Actions foreign and British ships in foreign and British waters.3 against ships of the But since the Court cannot enforce a writ against a ship Sovereign. of the Crown, the Lords of the Admiralty voluntarily instruct the Admiralty Proctor to enter an appearance for the commander of any ship of the Crown when an action, as is usual, is brought in personam against him for damage done by the ship of which he was in charge. International courtesy also causes an exception to the general rule in the case of ships belonging to a foreign government which are used for public purposes.5 I. Actions may be brought by any person, whether he be Damage an Englishman or a foreigner, who has received any kind to persons; of injury from a ship, or by the personal representatives of one whose death has been caused by the wrongful act of a ship.8 1 The Alexandria, L. R. 3 Ad. 574; 44 L. J. Ad. 94. The John and Mary, Swa. 471; The Zephyr, 11 L. T. N. S. 351 ; The Orient, 3 L. R. P. C. 696; 40 L. J. Ad. 29. 3 The Bilbao, Lush. 149; 3 L. T. N. S. 338; The Diana, Lush. 539; 32 L. J. Ad. 57; The Courier, Lush. 541; A. C. A. 1861, s. 7. 4 M. S. A. 1854, s. 527; The Athol, 1 W. Rob. 374. 5 The Parlement Belge, L. R. 5 P. D. 197; 42 L. T. N. S. 273; The Charkich, 4 L. R. Ad. 59; 42 L. J. Ad. 17. In the matter of The Charkieh, 8 L. R. Q. B. 197; 42 L. J. Q. B. 75; and see further ante, p. 9. • The Explorer, 3 L. R. Ad. 289; 40 L. J. Ad. 41. 7 The Sylph, 2 L. R. Ad. 24; 39 L. J. Ad. 14; The George and Richard, 3 L. R. Ad. 466; 24 L. T. N. S. 717, unborn child. The Court will not take cognizance of a tort not in the nature of a collision, though a collision may be the consequence of it, as when a master of one ship cast off the moorings of another: The Ida, Lush. 6. The Franconia, 2 L. R. Ad. 163; 46 L. J. Ad. 33; The Beta, 2 L. R. Ad. 449; 38 L. J. Ad. 50; A. C. A. 1861, ss. 7 and 10; M. S. A. 1854, s. 14; 9 & 10 Vict. c. 93, s. 2. The decision in The &c. II. and III. Under the statutes. already mentioned all to ships, injuries by ships to ships, by ships to things other than ships, or by other objects to ships, wherever the damage is done, are included; and if owing to the negligence of one vessel, damage is caused by a second to a third, the first is liable for the indirect injury;2 and this rule applies if the injuries received by the complaining ship are the results of any kind of negligence not necessarily of collision.3 The grounds of liability. In order to render a ship liable for damage, it must have been entirely caused by the wrongful act of such ship; for if it is wholly the result of inevitable accident, or wholly a consequence of the negligence or improper navigation of the vessel whose owners are plaintiffs, the ship proceeded against is free from liability. So also would it be if the act complained of arose from the conduct of a third person whose directions those on board the ship were bound to obey, as a harbour master,5 or a compulsory pilot. Should one vessel, however, make a collision inevitable, and the other in the agony of the meeting omit to do something which it would have been better to do, or do something which it would have been more seamanlike to omit, this will not be sufficient Franconia, by the Court of Appeal, must be taken as overruling 1 A ship, under the M. S. Act, was defined by Lord Blackburn as every vessel that substantially goes to sea, or is not propelled by oars, unless it is also a seagoing craft: Ex parte Ferguson, 6 L. R. Q. B. 280; 40 L. J. Q. B. 105. For examples of rule in text, sec The Malvina, Lush. 493; 31 L. J. Ad. 113 (barge); The Sarah, Lush. 549; Purkis v. Flower, 9 L. R. Q. B. 114; 43 L. J. Q. B. 33 (barge); The Uhla, 2 L. R. Ad. 29 n.; 37 L. J. Ad. 16 n. (a pier); The Albert Edward, 44 L. J. Ad. 49 (mooring dolphin); The Clara Killam, 3 L. R. Ad. 161; 23 L. T. N. S. 27 (submarine cable); The Philadelphia Steamboat Co. v. The Philadelphia Ry. Co., 23 Howard, 207 (A.), (by piles in river). 2 The Thames; The Sisters, 1 L. R. P. D. 117; 35 L. J. Ad. 39. 4 For acts of negligence, see post, p. 47. 5 The Bilbao, Lush. 149. As to compulsory pilotage, see post, p. 49. to take the whole liability from the vessel whose act is the causa sine quá non of the collision. But if a reasonable doubt exists as to the cause of a collision, it will be considered as an accident.2 And where one ship is being towed by another, and a collision takes place with a third vessel, the one of the two ships will be liable on which is the governing as distinguished from the motive power.3 Tow and tug are in law one vessel, and so a ship towing a pilot cutter has been held to blame when the latter carried a wrong light. Subject, however, to these rules, the liability in each particular case depends wholly on the state of the particular facts. after A ship is held liable for damage if, in an action for Liability damage by collision, it is proved that it has infringed breach of any of the Regulations made under the Merchant Shipping maritime regulaActs, 1854-1872, without absolute necessity.5 That is to tions. say, the liability attaches, unless the ship which has broken these rules can prove, not that the infringement was not, but could not have been a cause of the collision; or, in other words, either the absence of any infringement must be shown, or the impossibility of the collision having been a consequence of an infringement. The House of Lords recently decided that an unnecessary departure from the regulations, even in the agony of the 1 The C. M. Palmer and The Larnax, 29 L. T. N. S. 94; 2 Asp. M. C. 94; The Bywell Castle, L. R. 4 P. D. 219; 41 L. T. 747. 2 The Catherine of Dover, Hagg. 145. The Aracan, 6 L. R. P. C. 127; 43 L. J. Ad. 30. * The Mary Hounsell, L. R. 4 P. D. 104; 48 L. J. Ad. D. 54. 536 & 37 Vict. c. 85, s. 17. The Regulations as to lights do not apply to dumb barges on the Thames, The Owen Wallis, 4 L. R. Ad. 175; 43 L. J. Ad. 36. For the Regulations, with some decisions thereon, see post, App. III. The Hibernia, 31 L. T. N. S. 804; 4 W. R. 60; The Magnet, 4 L. R. 417; 44 L. J. Ad. 1; The Fanny M. Carvill, 44 L. J. Ad. 34 ; 32 L. T. N. S. 646. The following are recent cases on s. 17. The Lady Downshire, L. R. 4 P. D. 26; 48 L. J. Ad. D. 41; The Mary Hounsel, L. R. 4 P. D. 204; 48 L. J. Ad. D. 54; The Englishman, L. R. 3 P. D. 18; 37 L. T. 412; The Tirzah, L. R. 4 P. D. 33; 48 L. J. Ad. D. 15; The Buckhurst, L. R. 6 P. D. 152. 7 The Khedive & Voowaarts, L. R. 5 App. Cas. 876; 43 L. T. N.S. 610. |