the doctrine of the rights of material men. The cases which hold that a stevedore has no lien upon a domestic vessel compare his work and character to that of a material man and follow those analogies. Most of these cases, when examined, will appear to be cases where the vessel actually was a foreign vessel, and where this qualification was put in by the judge, not as a decision, but as a cautious reservation which might protect him in future.

5

But the better opinion is that a stevedore is more like a sailor than a material man. The duties now performed by him under modern demands are the same as those that sailors used to perform. No one has ever supposed that a sailor had no lien on a vessel unless given by a state statute, and this distinction should not be drawn against a stevedore. Accordingly, in the SEGURANCA, Judge Brown reviews this question, holds that a stevedore is more like a sailor than he is like a material man, and decides that he ought to have a lien even in the home port, just as a sailor would have.

But, while the individual workman is like a sailor in his rights when he contracts directly with the ship, the above and other cases draw a distinction between his rights and those of a contracting stevedore who employs laborers and does not work himself. He is held to resemble a material man and his service is on that footing. Hence, in the absence of statute, he would not on this theory have a lien on a domestic vessel."

The question is not important since the act of June 23, 1910, abolishing the distinction between domestic and foreign. vessels as to the presumption of credit if his service is correctly classed as a necessary. If not a lien independent of the act, it would be by virtue, of it.

Main, 51 Fed. 954, 2 C. C. A. 569; Norwegian S. S. Co. v. Washington, 57 Fed. 224, 6 C. C. A. 313; Scotia (D. C.) 35 Fed. 916. 6 (D. C.) 58 Fed. 908.

Rupert City (D. C.) 213 Fed. 263; ante, p. 108.

8 36 Stat. 604 (U. S. Comp. St. §§ 7783-7787).

SAME-PRIVITY OF CONTRACT NECESSARY

TO LIEN

55. This being a lien arising from contract, only those are entitled to it who have a contract with the vessel.

It is not like a subcontractor's lien under a state mechanic's lien law. Hence, if a vessel employs a stevedore to load her, he would have a lien, but the workmen employed by him would not, for their contract would be with him, and not with the vessel. So if a vessel comes under a charter party, by which the charterer is to load her and pay a lump sum for her use, it is no interest of the vessel whether the charterer loads her or not. If he does not, he will have to pay the charter price for her use just the same, and no loss would be entailed upon the vessel, as she would get dead freight. In such case, the charterer would be an independent contractor, and, if he employs a stevedore, the latter would have no contract with the vessel itself, and would have to look to him. On principle, this doctrine is clear. The only confusion which has arisen under it at all is that frequently the charterer is not only charterer, but agent of the vessel, having authority from the vessel. If the stevedore deals with him in that capacity, and does not know the limitations of his power, or is not so put upon inquiry as to charge him with knowledge, it may sometimes be the case that the vessel will be bound, but the natural presumption would be the other way."

The relation between the stevedore and ship is but a branch of the general law of master and servant, and is foreign to the present subject. He is so far the agent of the ship as to bind the ship by his acts, even when the charter

That a contract with the vessel must be shown, see Hattie M. Bain (D. C.) 20 Fed. 389; Mark Lane (D. C.) 13 Fed. 800; Chicklade (D. C.) 120 Fed. 1003.

party expressly requires the ship to employ the charterer's stevedore, as is frequently the case.10

CANAL TOLLS

56. Tolls due by a vessel for use of a canal are a maritime contract, and can be enforced by a libel in rem in admiralty.

In the St. Joseph,1" a corporation was authorized by its charter to improve a navigable stream and charge for the use of the same, and the charter, which was a public one granted by act of the Legislature, made these tolls a lien in rem upon the vessel. The court held that the contract was maritime, and could be enforced in admiralty against the vessel.

In the Bob Connell,12 the court held that a service of this sort was maritime, likened it to the lien of a material man, and held that it could be enforced against a domestic vessel if there was a state statute, and not if there was no statute.

As these decisions treat it in the nature of a necessary, it follows that there is no difference between domestic and foreign vessels, but there would be a lien upon both under the act of June 23, 1910.13

10 T. A. Goddard (D. C.) 12 Fed. 174; Brooks v. Hilton-Dodge Lumber Co., 229 Fed. 708, 144 C. C. A. 118.

13 36 Stat. 604 (U. S. Comp. St. §§ 7783–7787).

TOWAGE "SERVICE" DEFINED

57. Towage is a service rendered in the propulsion of uninjured vessels under ordinary circumstances of navigation, irrespective of any unusual peril.

This has become a topic of steadily increasing importance. The saving of time and diminution of risk accomplished by the use of tugboats has caused every harbor to be thronged with them, from the wheezing little high-pressure boat that pulls watermelon sloops and oyster pungies, to the magnificent ocean-going triple expansion tugs, equipped with machinery, bitts, and hawsers strong enough to tow a fleet. Their services are not limited to towing sail vessels, but in contracted harbors the long, narrow modern steamers, in turning or docking, do not disdain their aid.

It is often hard to draw the line between a towage and a salvage service. When a tug is taken by a sound vessel, as a mere means of saving time or from considerations of convenience, the service would be classed as towage, while if the vessel is disabled and in need of assistance, to escape actual or possible risk the service is a salvage service, of a high or low merit according to circumstances.14

Indeed, a service may start as towage and end as salvage. For instance, a tug starts to tow a vessel from one point to another under contract for a certain sum. The towage contract is presumed to cover only the ordinary incidents of the voyage. If a tempest arises of sufficient severity to greatly endanger or to disable the tow, the towage contract is abrogated by the vis major, and the tug may claim

14 Reward, 1 W. Rob. 174; Princess Alice, 3 W. Rob. 138; Emily B. Souder, 15 Blatch. 185; Fed. Cas. No. 4,458; J. C. Pfluger (D. C.) 109 Fed. 93; Lowther Castle (D. C.) 195 Fed. 604. Though the vessel may be partially disabled, the service would still be towage, if she was in no risk. Robert S. Besnard (D. C.) 144 Fed. 992; Joseph F. Clinton, 250 Fed. 977, 163 C. C. A. 227.

salvage, provided she has not been negligent in unnecessarily exposing her tow, or bringing about the dangerous situation. 15

SAME-RESPONSIBILITY AS BETWEEN TUG AND TOW

58. The tow is not liable for the tug's acts where the latter directs the navigation.

59. It is liable for its own negligence, and may be for the tug's, where it directs the navigation.

The relation between tug and tow, under the American decisions, under ordinary circumstances, is that of independent contractor, not that of principal and agent. The tug is not the servant or employé of the tow, and therefore the tow is not responsible for the acts of the tug. Hence, if the tow collide with some vessel during the voyage, it is not liable for the damage caused thereby, unless some negligence contributing to the collision is proved against the tow. The law is summarized in STURGIS v. BOYER," where the court says: "Looking at all the facts and circumstances of the case, we think the libelants are clearly entitled to a decree in their favor; and the only remaining question of any importance is whether the ship and the steam tug are both liable for the consequences of the collision, or, if not, which of the two ought to be held responsible for the damage sustained by the libelants. Cases arise, undoubtedly, when both the tow and the tug are jointly lia

15 H. B. Foster, Fed. Cas. No. 6,290; Minnehaha, Lush. 335; Madras, [1898] P. 90; Harvest Home, [1904] P. 409; Id., [1905] P. 177. $$ 58-59. 16 24 How. 110, 16 L. Ed. 591. See, also, Clarita, 23 Wall. 1, 23 L. Ed. 146; Eugene F. Moran v. New York Cent. & H. R. R. Co., 212 U. S. 466, 29 Sup. Ct. 339, 53 L. Ed. 600; C. W. Mills (D. C.) 241 Fed. 204; Id., 241 Fed. 378, 154 C. C. A. 651; Cromwell (D. C.) 247 Fed. 207; Id. (C. C. A.) 259 Fed. 166; Violetta (D. C.) 141 Fed. 690; Id., 153 Fed. 1023, 82 C. C. A. 678.