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,11 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, 1910.18

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

§ 56. 11 Fed. Cas. No. 12,230.

12 (C. C.) 1 Fed. 218.

23 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.1

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.1 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,10 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.

ble 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 owner 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 intrusted 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 damages through the fault of those in charge of the vessel, 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 unsea

worthy 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. Vessels engaged in commerce are held liable for damage occasioned by collision, on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill, on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel. Whenever, therefore, a culpable fault is committed, whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner himself. No such consequences follow, however, when the person committing the fault does not, in fact, or by implication of law, stand in the relation of agent to the owners. 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 the one or the other. Their contract for the service, even though it was negotiated with the master, is in legal contemplation made with