In cases where, though the pilotage is compulsory, the control of the navigation of the ship is not vested in the pilot, but remains solely with the master of the ship, the pilot being merely the adviser of the master, the owner of the ship will not be freed from liability (c). Of course, whenever the employment of a pilot is not compulsory, the fact of a pilot being in charge of a vessel will not relieve the owners from liability, even in respect of loss or damage caused by the pilot's fault or incapacity (d). Again, where a collision is occasioned in consequence of a ship being deficiently equipped, or of her not answering her helm, or of the incompetency of her crew, the owners cannot plead compulsory pilotage (e). If a ship is compulsorily under the charge of a licensed pilot, and at the same time in the tow of a steam tug, the tug is bound to obey the orders of the pilot (ƒ). If the ship in tow be damaged through the conduct of the tug, the tug cannot in an action by the owners of the tow for damage, plead contributory negligence on the ground that the pilot could have avoided the accident (g). Should the tug act without the pilot's orders, and so bring about a collision, the owners of the ship in tow will be responsible for the damage (h). In cases where by the law of the country where the loss occurred, the compulsory employment of a pilot would not Co. v. Brit. & Col. Steam Navigation Co., L. R., 4 Ex. 238; see "Cases" (4) at end of this §. (c) The Guy Mannering, 7 P. D. 52, 132 (C. A.); 51 L. J., P. 17, 57; 30 W. R. 835; see "Cases" (3) at end of this §. (d) The Cachapool, 7 P. D. 217; 46 L. T. 171; but see General Steam Navigation Co. v. Brit. & Col. Steam Navigation Co., L. R., 4 Ex. 238; see "Cases" (2) at end of this §. (e) The Christiana, 7 Moo. P. C. 160; The Livia, 1 Asp. M. C. 204; The Caen, Swa. 9; see Cases" (4) at end of this §; The Argo, Swa. 462. (f) Bland v. Ross (The Julia), Lush. 224; 14 Moore, P. C. 210; Spaight v. Tedcastle, 6 App. Cas. 217; 44 L. T. 589; 29 W. R. 761; 4 Asp. M. C. 406. (g) Spaight v. Tedcastle, supra. (h) The Sinquasi, 5 P. D. 241; 50 L. J., P. 5; 43 L. T. 768. exempt the owner from liability, nevertheless he will not be liable in England (). CASES. 1. The captain's wife and father-in-law were, at his invitation, on board a vessel, which generally carried passengers, but which was not on a passage voyage at the time, without the privity of the owners. They had neither paid nor agreed to pay any fare, before a collision occurred. Held, that they were not " passengers within 17 & 18 Vict. c. 104, s. 388, so as to exonerate the owners from the damage caused by the fault of the pilot in charge of the vessel (j). 2. The defendant's ship, coming up the channel to London, took a pilot on board at Dungeness. Before reaching Gravesend, and whilst the ship was still in the pilot's charge, she came into collision with the plaintiff's vessel through the pilot's negligence. The port of London for pilotage purposes extends only to Gravesend. Held, that the defendants were not liable (k). 3. The s.s. M., in the Suez Canal, came into collision with the s.s. W. The collision was occasioned by the negligence of a pilot belonging to the Suez Canal Company, compulsorily taken on board the M. By the regulations for the navigation of the Suez Canal, the control of the ship is left with the master, the pilot merely advising him. Held, that the owner of the M. was liable for the damage resulting from the collision (?). 4. A French ship coming up the Thames, took on board a pilot, and also, as none of her crew understood English, a waterman to take the wheel. Instead of luffing as the pilot ordered, the waterman put her helm up, whereby a barge was run into. Held, that as the pilot was in no way answerable for the waterman's fault or incapacity, the French owners were liable for the damage done (m). 5. A Norwegian barque was in the Scheldt run into and damaged by the H., a British ship, through the fault of the pilot of the H. By the law of Belgium the employment of the pilot was compulsory, but the owner was not thereby freed from his liability. Held, that the owner of the H. was not liable in England, even though he were in Belgium (»). (i) The Halley, L. R., 2 P. C. 193; see "Cases" (5) at end of this §. (1) The Lion, L. R., 2 P. C. 525. (k) The Gen. Steam Nav. Co. v. Brit. & Col. Steam Nav. Co., L. R., 4 Ex. 238. (1) The Guy Mannering, supra. (m) The Caen, Swa. 9. (n) The Halley, L. R., 2 P. C. 193. § 103. Compulsory In certain ports powers have been conferred on the dock orders of dock and harbour masters to regulate the movements, mooring, and harbour masters. and berthing of vessels. In all cases when a collision is caused through a vessel carrying out the orders of such harbour or dock masters, her owners will be freed from liability, as in the case of compulsory pilotage (o). The vessel, however, must employ ordinary caution in carrying out the orders of the dock master, or she will be liable (p). CASES. 1. The master of a vessel moored in Falmouth harbour to the eastern pier was desired by the dock master to remove her to the western pier and to strike his top-gallant masts, &c. The master refused to do so and left his vessel with only three men on board. By virtue of the powers conferred on him by the Harbour Regulations, the dock master then removed her to the western pier. During a gale the vessel broke from her moorings and damaged the wharf. Held, that the vessel was liable for the damage (q). 2. The C., when entering dock, fell against two barges and drove them against a vessel (the V.) lying alongside a wharf. A skiff was between the V. and the wharf, but not visible from the C. Through the C. falling against the barges the V. was driven towards the wharf and crushed the skiff against the wharf. At the time of the collision the C. was coming into dock under the direction of the dock master. Held, that the collision might have been avoided if the master of the C. had taken proper precautions, and that therefore the C. must be condemned for the damage (r). (0) The Economy, 1 Prit. Ad. Dig. 177; The Jacob, ib. 178; The Excelsior, L. R., 2 A. & E. 268; see Cases" (1) at end of this §. 66 (p) The Cynthia, 2 P. D. 52; see "Cases" (2) at end of this §; The Belgic, 2 P. D. 57, n. (a) The Excelsior, L. R., 2 A. & E. 268. (r) The Cynthia, 2 P. D. 52. CHAPTER XVI. TOWAGE. § 104. law. In all cases, with one exception, where a ship is in tow Tug and tow, one ship in of another, the towing and towed ships will be considered in law as one and the same ship, the tug being deemed the servant of the tow. The exception referred to arises in the case of a ship rendering salvage services to another by taking her in tow. Therefore, though a ship in tow will generally be liable for a collision brought about solely by the negligence of the tug (e. g. by her omitting to carry a light), she will not be if she is being towed as a salvage service (a). But the tug only will, in such a case, be liable. At the same time it is the duty of a third ship to use extra care and caution in approaching a ship in tow on account of her comparatively unmanageable condition (¿). CASES. 1. A brigantine with a pilot cutter towing astern came into collision with another brigantine in the Bristol Channel after dark. The regulations for preventing collisions at sea had been infringed by the cutter, but not by the brigantine, nevertheless the brigantine towing the cutter was pronounced to blame (c). 2. The steamship A. found the S., a screw steamship, totally disabled, and took her in tow. During the towage the A. came (a) The Giraffe, 1 Pr. Ad. Dig. 153; The Mary Hounsell, 4 P. D. 204; see "Cases" (1) at end of this ; The American and The Syria, L. R., 6 P. C. 127; The Warrior, L. R., 3 A. & E. 553; and see § 106, p. 179. (b) The American and The Syria, 204. N. N Duties of tug. into collision with a sailing ship close hauled on the starboard tack and sank her. But previously to her sinking the S. ranged up alongside of her, coming in contact with her. Held, that the governing as well as motive power being wholly with the A., the S. was not liable for the collision, for she could not be deemed in intendment of law one vessel with the A., or liable for her negligence (d). $105. In every contract of towage, it will be implied that the tug shall obey implicitly the orders given by the vessel she is engaged to tow, so as to avoid any double command or divided responsibility (e). It follows that where a steam tug is engaged to tow a vessel in charge of a pilot the tug must obey the pilot's orders, otherwise she will be liable for any damage ensuing, and contributory negligence on the part of the pilot will be no defence (f). The pilot must on the other hand give the tug proper directions, and superintend her navigation (9). The tug is, however, bound to use due skill and caution in performance of her duty. Should the orders she receives from the tow be clearly wrong, she is bound to warn the tow of the consequences, even though the orders be given by a pilot (1). If to save herself from a collision a tug is forced to cast off her tow, it will be incumbent on her again to pick up the tow as soon as practicable (i). In a contract of towage there is no implied warranty of fitness of the tug. Therefore the mere fact of her engines (d) The American and The Syria, (e) The Christina, 3 W. Rob. 27; (g) The Energy, L. R., 3 A. & E. 48; see "Case" at end of this §; Spaight v. Tedcastle, 6 App. Cas. 217; 44 L. T. 589; 4 Asp. M. C. 406; see Chap. XV. § 98, p. 167. (h) The Duke of Manchester, 5 Not. of Cas. 470, 476; The Robert Dixon, 5 P. D. 54 (C. A.); 42 L. T., N. S. 344. (i) The Annapolis, Lush. 355. |