on negligence or fault causing or contributing to the disaster. Such
negligence may be on the part of the ships actually in contact with each
other or of outside vessels and consists in the violation of the
statutory regulations for preventing collisions at sea or the failure to
exercise that skill, care, and nerve ordinarily displayed by the average
competent master. Collisions may occur without negligence, or by
inscrutable fault, and then there is no liability for the resulting
damage. Such are collisions solely due to the darkness of the night or
to storms. In the Morning Light, 2 Wall. 550, the collision occurred at
4 A. M., on an intensely dark night in a dense fog and rain. The court
(Clifford, J.) said:
Reported cases where it has been held that collisions occurring in
consequence of the darkness of the night and without fault on the part
of either party, are to be regarded as inevitable accidents are
numerous.
* * * * *
Where the loss is occasioned by a storm or any other _vis major_, the
rule as established in this court is, that each party must bear his own
loss, and the same rule prevails in most other jurisdictions....
Different definitions are given of what is called an inevitable
accident, on account of the different circumstances attending the
collision to which the rule is to be applied.
Such disasters sometimes occur when the respective vessels are each
seen by the other. Under those circumstances, it is correct to say that
inevitable accident, as applied to such a case, must be understood to
mean a collision which occurs when both parties have endeavored by
every means in their power, with due care and caution, and a proper
display of nautical skill, to prevent the occurrence of the accident.
When applied to a collision, occasioned by the darkness of the night,
perhaps a more general definition is allowable. Inevitable accident,
says Dr. Lushington, in the case of the Europa, 2 Eng. Law & E. 559,
must be considered as a relative term, and must be construed not
absolutely, but reasonably with regard to the circumstances of each
particular case. Viewed in that light, inevitable accident may be
regarded as an occurrence which the party charged with the collision
could not possibly prevent by the exercise of ordinary care, caution
and maritime skill.
=3. Tests of Negligence.=--The primary question is whether there has
been a violation of any of the regulations or rules of navigation.
Navigable waters constitute a common highway and the rights and duties
of vessels using them are quite similar, in legal principles, to those
of vehicles using streets, and roadways on the land. Hence the general
maritime law recognized the practice of keeping to the right, avoiding
others whose movements were hampered, and not running down another
because he was on the wrong side. Ultimately the general practice of
navigators was expressed in formal rules and finally all nations united
in promulgating them in the form of statutes which are now practically
uniform throughout the world. They are, in effect, a code of
international law for the purpose of avoiding collisions. Back of these
special rules are the general requirements of the maritime law in regard
to careful navigation; a lookout is essential although there is no
statute requiring one to be maintained.
It should be observed that vessels navigating in darkness, fog or storm
must take all precautions against collision which such a state of things
would suggest to a prudent navigator. A vessel failing to take such
precautions will be in fault in a collision. Failure to hear fog signals
is not negligence. The ordinary steering and sailing rules do not apply
in fog.
=4. The Regulations.=--The express rules for the navigation of vessels
of the United States consist of the following:
1. International Rules (Act of Aug. 19, 1890, as amended; U. S. Comp.
St. 1916).
2. Rules for Great Lakes and connecting waters (The "White Law"; Act of
February 8, 1895; U. S. Comp. St. 1916).
3. Rules for Harbors, Rivers and Inland Waters (Act of June 7, 1897;
U. S. Comp. St. 1916).
4. The Mississippi Valley Rules, § 4233, Revised Statutes.
5. Rules of Supervising Inspectors.
6. Local rules and municipal regulations.
These rules deal with the distinctive lights required for different
vessels, signals, speed, rules governing the management of sailing and
steam vessels under different conditions of weather and various relative
positions of vessels. While they have very often been the subject of
judicial interpretation in collision cases their application belongs to
the subject of navigation rather than to that of admiralty law in the
present work.
The statutory rules are of the highest importance and the mere fact of a
breach of any of these is _prima facie_ (but not conclusive) evidence of
negligence. The infringing vessel must satisfy the court that its
violation of law not only did not, but could not, contribute to the
collision.
As was said by Chief Justice Fuller in Belden _v._ Chase, 150 U. S. 674:
They are not mere prudential regulations, but binding enactments,
obligatory from the time that the necessity for precaution begins, and
continuing so long as the means and opportunity to avoid the danger
remains. Obviously they must be rigorously enforced in order to attain
the object for which they were framed, which could not be secured if
the masters of vessels were permitted to indulge their discretion in
respect of obeying or departing from them. Nevertheless, it is true
that there may be extreme cases where departure from their requirements
is rendered necessary to avoid impending peril, but only to the extent
that such danger demands.
* * * * *
Obedience to the rules is not a fault even if a different course would
have prevented the collision, and the necessity must be clear and the
emergency sudden and alarming before the act of disobedience can be
excused. Masters are bound to obey the rules and entitled to rely on
the assumption that they will be obeyed, and should not be encouraged
to treat the exceptions as subjects of solicitude rather than the rules.
It is true that where obedience to the rules will result in collision a
navigator is justified in disobeying the rule. It was held in the
Oregon, 158 U. S. 186, "that the judgment of a competent sailor _in
extremis_ cannot be impugned." Cases in which disregard of the rules has
been upheld as justifiable by the courts have generally been cases in
which the other vessel has already infringed a rule and a situation has
arisen in which obedience to the rule could only result in collision.
Such exceptions, however, as was said in the Albert Dumois, 177 U. S.
240, "are admitted with reluctance on the part of the courts, only when
the adherence to such rules must almost necessarily result in a
collision--such, for instance, as a manifestly wrong maneuver on the
part of an approaching vessel." In the John Buddle, 5 Notes of Cas. 387,
it was said:
All rules are framed for the benefit of ships navigating the seas, and
no doubt circumstances will arise in which it would be perfect folly to
attempt to carry them into execution, however so wisely framed. It is,
at the same time, of the greatest possible importance to adhere as
closely as possible to established rules and never to allow a deviation
from them unless the circumstances which are alleged to have rendered
such deviation necessary are most distinctly approved and established;
otherwise, vessels would always be in doubt and go wrong.
=5. Damage to Ship.=--The owner of a ship wrongfully injured by
collision is entitled to complete restitution. If the loss is total, he
recovers her value, with interest from the date of the loss. If the loss
is partial, he will recover the cost of full and complete repairs and if
such repairs make the vessel a better and stronger one than she was
before, he is entitled to that benefit; he will also recover demurrage
or compensation for the loss of use of his ship during the time occupied
by the repairs.
It frequently happens that the ship is not an absolute total loss, in
the sense of being completely destroyed or sunk beyond possibility of
recovery, but so injured that the cost of repair will exceed the value
at the time of collision; the owner may then treat her as a constructive
total loss and claim from the wrongdoer the same amount as if the
destruction had been complete. In other words, when the ship is so
injured that a prudent business man would not repair, the owner abandons
the wreck and claims a total loss. If he recovers, the title to the
wreck passes to the wrongdoer.[21]
Expenses incident to the collision are also included in the ship's
damage, such as the owner's disbursements in looking after his property;
the cost of protest and survey; the wages and board of the crew while
necessarily kept on board, the costs of superintending repairs and
securing a new rating.
Loss of freight is also an item of damage.
=6. Damage to Cargo.=--The cargo-owner is entitled to recover his
damages from the offending ship and the ordinary measure is the value of
the goods at the time and place of a total loss, with interest and
incidental expenses. The purpose of the rule is to place him, as nearly
as may be, in the same position as if the collision had not occurred.
Where the loss is partial, as where the goods arrive in a damaged
condition, the measure is the difference between their actual value and
what they would have been worth in good condition; to this may be added,
in appropriate cases, the expenses of transhipment, reconditioning,
warehousing, survey and sale.
Where both vessels are in fault the owner of the cargo may sue either or
both, or as was said by Justice Clifford in the Atlas, 3 Otto 302:
Parties without fault such as shippers and consignees, bear no part of
the loss in collision suits, and are entitled to full compensation for
the damage which they suffer from the wrongdoers, and they may pursue
their remedy _in personam_, either at common law or in the admiralty,
against the wrongdoers or any one or more of them, whether they elect
to proceed at law or in the admiralty courts.
* * * * *
Innocence entitled the loser to full compensation from the wrongdoer,
and it is a good defense against all claims from those who have lost.
Individual fault renders the party liable to the innocent loser, and is
a complete answer to any claim made by the faulty party, except in case
where there is mutual fault, in which case the rule is that the
combined amount of the loss shall be equally apportioned between the
offending vessels.
In the foregoing case the owner of a cargo, lost in a collision in which
both vessels were held to be at fault, libeled one of them and decreed
his entire damage against the vessel which he sued. A vessel so
compelled to pay the whole damage to cargo, in a case of mutual fault,
is entitled to recover from the other vessel a contribution so as to
equalize the loss as between the two ships.
But this important qualification of the foregoing rule must be observed:
That a shipper of cargo who is prevented from recovering against the
vessel on which his cargo was shipped, as for instance by his contract
of affreightment, or by some rule of law, as, for example (in an
applicable case), the Harter Act, cannot hold the other vessel for the
entire damage but only for one-half thereof.
In the case of the Niagara, 77 Fed. 329, the steamer _Niagara_ was in
collision with the bark _Hales_, the Court held:
Both vessels being, therefore, in fault, the owners of the bark are
entitled to recover against the _Niagara_ one-half their damages for
the loss of the bark, to be applied so far as may be legally applicable
and necessary in payment of the value of one-half of the cargo claimed
under the other libel; and the _Niagara_ is liable for any deficiency
to make good the whole value of the cargo owners; as well as for
one-half the claims for personal effects.
* * * * *
If the Harter Act, however, were applicable, it would not affect the
liability of the _Niagara_ in the present case; but only the
application, as between the shipowner and the owners of the cargo, of
the sum the _Niagara_ must pay. The _Niagara_ suffered but little
damage; while the loss of the _Hales_, and of the cargo, are estimated
to have been respectively about $16,000 and $26,000. In applying the
Harter Act to cases of division of damages for mutual fault, I have
heretofore held (1) that it was not the intent of Congress to relieve
the carrier vessel at the expense of the other vessel in fault, by
increasing the latter's liability, but that the intent was that the
cargo should bear the consequences of the carrier's neglect in
navigation; (2) that the relief given by the Act to the carrier vessel
from responsibility for damage to her cargo, could not be nullified
indirectly by a charge against her in the shape of an offset in favor
of the other vessel in fault on account of that same cargo; (3) that
the extent of the latter vessel's previous liability on the particular
facts of each case was not to be diminished by the Harter Act from what
she would previously have been bound to pay, except as respects her own
cargo; and (4) that the result, therefore, must be that the cargo owner
of each ship must stand charged under the Harter Act with so much of
the cargo damage as the carrier ship is relieved from by that Act,
whenever and so far as that is necessary to avoid any increase in the
previous liability of the other ship. The Viola, 60 Fed. 296.
Upon any complication, the first inquiry is, to what amount was each
vessel, or her owner, liable under the previous law, upon the
particular facts of the case? Under the Harter Act, if it is
applicable, that liability cannot be exceeded, and it will remain the
same, if necessary to make good the damage to the cargo of the other
ship. In getting at the amount which either vessel is to pay under the
Harter Act, her own cargo is to be treated as nonexistent; because
where the Harter Act is operative the carrier vessel (A) is not liable
for that item of damage. But the other ship (B) is bound to pay that
item of cargo loss, as well as one-half the damage to the two ships, up
to the limit previously ascertained, as above stated, if the remaining
value of the ship (B) and her pending freight are sufficient for that
purpose. Where this value is not sufficient, and the damage to the
first vessel (A) is greater than the damage to the other ship (B), two
conflicting claims arise, one in favor of the ship (A), for the purpose
of equalizing the loss on the two vessels, and another claim for the
loss on A's cargo. As those claims arise at the same time, and are of
equal merit, the remaining value of the ship (B) and her pending
freight should be apportioned pro rata, according to the amount of the
two claims.
In the present case the _Hales'_ loss was about $16,000; that of her
cargo about $26,000. The loss on the _Niagara_ was slight, and of her
cargo, nothing. Before the Harter Act, the _Niagara_, upon the above
figures, would have been obliged to pay $8,000 for half the loss of the
_Hales_ (which would, however, have been applied upon the latter's
liability to her cargo); $13,000 for half the cargo loss, and $5,000 in
addition, on account of the total loss of the _Hales_, in order fully
to indemnify the cargo, making $26,000 in all (The Atlas, 93 U. S.
302). Under the Harter Act, the _Hales_ being relieved from any
liability to her cargo for this damage, her owners would retain the
$8,000 for their own use, instead of applying it on the cargo as
before; but the _Niagara's_ liability is not to be thereby increased or
diminished. This item of loss is transferred by the Harter Act to the
cargo. The _Niagara_ must pay, therefore, as before, $13,000, and the
$5,000 (that is, $18,000), on account of the cargo loss, and the
cargo-owner loses the $8,000, which his carrier under the Harter Act is
entitled to retain. It is immaterial, therefore, to the _Niagara_
whether the Harter Act is applicable or not. It affects only the
distribution of the $26,000.
=7. Damage to Crew and Passengers.=--Personal belongings of crew and
passengers may be lost or injured in the collision and the measure of
damages is the same as in the case of the cargo. If totally lost, the
value at the time of the collision governs not what the articles
originally cost when new. If only injured, then the difference between
sound and damaged condition controls. Interest follows as in other cases.
Personal injuries and loss of life are also included in collision
damage. The measure here is the same as in similar matters on land.
=8. Contribution.=--The 59th Rule in Admiralty provides that the
claimant of any vessel proceeded against, or any respondent proceeded
against _in personam_ may bring in a petition alleging fault in any
other vessel contributing to the collision, and praying that such other
vessel be made a party to the suit. The other parties to the suit are to
answer the petition and the vessel or party newly brought in shall
answer the libel. This brings in both vessels, provided the vessel so
brought in is within the jurisdiction of the court and can be reached by
its process, and makes it possible for the court to enforce appropriate
contribution of damage by the parties in fault.
Since we have already seen that, in a case in which both vessels are in
court in the first place, the court will decree contribution, there
remains only the case in which a claimant of lost cargo has brought suit
against one vessel or her owner, and the other vessel cannot be reached
by process of the court. Suppose that in such a case the cargo-owner
gets a decree against the vessel or party defendant and for his full
damage, can the vessel or the party thus mulcted maintain an independent
suit for contribution against the other offending ship? It can only be
said that on this point the authorities are in direct conflict; however,
in the modern case of Lehigh Valley R. R. Co. _v._ Cornell Steamboat
Co., 218 U. S. 264, it seems to be clearly inferable that in the opinion
of the Supreme Court of the United States such an action is maintainable.
What has been said with respect to damage suffered by owners of lost
cargo, applies equally to damages for personal injuries sustained as the
result of a collision.
=9. Division of Damages.=--Where both, or several, ships are in fault,
the maritime law apportions the damage between them. When one of two
vessels has suffered more than the other the decree is against the one
least injured for one-half of the difference in their respective losses.
In the North Star, 106 U. S. 17, where both vessels were adjudged in
fault for a collision and one, the _Ellis Warley_, became a total loss,
the owners of the _Warley_ advanced the ingenious argument that,
inasmuch as their vessel had been entirely lost, they were entitled to
limit their liability and, by so doing, recover one-half their entire
damage from the _North Star_, without any deduction for the damage
suffered by her, notwithstanding the rule of division of damage in such
cases. It will be noticed that the vessel claiming the right to limit
liability, being the greater sufferer, would, in no event, have been
required to pay anything to the other, and that the _North Star_, which
had to do the paying, did not claim any right to limit liability. In
rejecting this argument and holding that the time to apply the
limitation-of-liability rule was after the amount of the liability had
been ascertained, when the party decreed to pay might claim the benefit
of the rule if entitled to it, the Court entered upon an instructive
review of the entire history of the division of damage, and found that
the theory is not that the owner of the one vessel is liable to the
owner of the other for one-half of the damage sustained by the latter,
and _vice versa_, that the owners of the latter are liable to those of
the former for one-half of the damage sustained by her; but that the
joint damage is equally divided between the parties; that it is a case
of average and is to be computed by subtracting the lesser loss from the
greater, dividing the difference by two and directing the vessel
sustaining the smaller loss to pay the other the amount so found.
Where both vessels are in fault and only one is injured, the uninjured
vessel must pay to the other one-half of the amount of her damage
without deduction.
The cargo, being innocent, may sue both vessels or either, but if the
result is that one is so compelled to pay more than its proper
proportion of the total, a suit for contribution under the conditions
set forth in the preceding section will lie in order to accomplish an
ultimate equality. The admiralty does not recognize the common-law rule
that contributory negligence prevents recovery and the same division or
apportionment of damage is applied to cases of personal injury in
collision as otherwise.
=10. Lien.=--The party injured by collision acquires a maritime lien of
high rank upon the guilty vessel which attaches at the moment the damage
is done and inheres, as a property right, until it is satisfied, bonded,
or extinguished by an admiralty sale, or abandoned by his own laches, or
delay in enforcement. It attaches to the hull of the ship and also to
her engines, boilers, boats, apparel and freight pending but not to her
cargo and, equally, whether the offending ship was in actual contact
with the other or whether she caused the collision between other ships
by her own negligent navigation, as by suction or displacement waves.
The lien will follow the ship into the hands of an innocent purchaser
for value unless proceedings to enforce it have been unreasonably
delayed or other circumstances render its enforcement inequitable. It
has priority over almost all other maritime liens, only subsequent
salvage and wages being ordinarily preferred.
Since the enactment of the act of March 30, 1920, a lien arises out of
the loss of life in a collision, as in the case of personal injuries.
=11. Limitation of Liability.=--Where the owner of the offending vessel
is not personally at fault for the disaster, his liability is limited to
the value of his ship and freight pending, as of immediately after the
disaster. If the ship is lost, his liability disappears with her. He is
not, under American law, obliged to account for the insurance because
that is not a part of the ship but the result of an independent,
collateral contract.
=12. Remedies.=--The most usual remedy employed in cases of collision is
that afforded by the Limited Liability Law.[22] This gives the shipowner
the right to call all damage claimants into one court and dispose of
everything in a single proceeding, thus eliminating a multiplicity of
suits in different jurisdictions. The question of fault may be litigated
in this proceeding and it may be commenced either before or after the
commencement of other actions. Injured parties, if they choose, may sue
at common law as in other cases of negligence. The more effective
remedies, however, are in admiralty. They may there proceed directly
against the ship, or the ship and master together, or against the master
or the owner alone, personally. The master of the injured ship may bring
the suit in his own name on behalf of all concerned, including the
cargo. Underwriters who have paid for losses caused by collision become
subrogated to the rights of their assured and may sue accordingly.
=13. Evidence.=--The party alleging negligence must bear the burden of
proof in establishing it. He must show fault on the part of the other
vessel as well as due care on his own. By act of Congress, approved
September 4, 1890 (26 St. at L. 425), the so-called "Stand-by" act,
failure of a vessel to stay by another vessel with which she has been in
collision until there is no further need of assistance, raises the
presumption that she is in fault for the collision. This presumption,
however, is not conclusive, but may be rebutted by testimony. Cases of
this kind appear to be inconsistent with the doctrine laid down in some
of the earlier decisions and represent a modern tendency to extend the
maritime jurisdiction. Sometimes the conceded facts establish a
presumption of fault, as where a collision occurs with a ship properly
at anchor or between steam and sail. This will usually appear on the
pleadings. The facts at issue are shown by the testimony of those who
saw or participated in the disaster. These generally come from the
officers and crews of the vessels involved and every man ought to be
accounted for. Extreme contradictions are to be expected in the evidence
as there is a natural tendency on the part of sailors and passengers to
be so loyal to their own ship as to impute every fault to the one which
runs into her. The courts seldom attempt to reconcile conflicting
testimony but frequently decide on the conceded facts and probabilities.
The evidence of disinterested parties is of much weight.
REFERENCES FOR GENERAL READING
_Law of Marine Collisions_, H. R. Spencer. Chicago, 1895; Callaghan & Co.
_Collisions at Sea_, R. G. Marsden. London, 1904; Stevens and Sons, Ltd.
_Damages in Maritime Collisions_, E. S. Roscoe. London, 1909;
Butterworth & Co.
_Admiralty Law_, 8 Columbia Law Review (March, 1908).
Scotia, 14 Wall. 170.
Belgenland, 114 U. S. 355.
[20] In Seabrook _v._ Raft, 40 Fed. 596, where there was a collision
between a raft and a dredge, moored by six anchors, the jurisdiction was
sustained.
[21] In modern practice, insurance is nearly always carried upon a
vessel and cargo. The modern authorities on the subject of constructive
or total loss and abandonment, as well as the items of damage
recoverable on account of vessel and cargo are, in nearly every
instance, cases arising out of policies of marine insurance. This
subject is treated at large in another volume of this series.
[22] See Chapter VIII, _supra_.
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."
* * * * *
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.
* * * * *
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.
* * * * *
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.
* * * * *
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.
* * * * *
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.
* * * * *
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.
* * * * *
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.
* * * * *
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_.
CHAPTER XIII
SALVAGE AND GENERAL AVERAGE
=1. Definitions.=--Salvage may be defined as a legal liability which is
created by the rescue of maritime property from perils of the sea. It
may be quite independent of contract or agreement and these do not
affect its nature. The word also designates the reward or compensation
for the rescue and, sometimes, the property which is saved. Its
essentials are maritime property in peril and a voluntary successful
effort to save it. From the standpoint of the owner of the property, it
is the price of safety.
The ingredients of a salvage service are, first, enterprise in the
salvors in going out in tempestuous weather to assist a vessel in
distress, risking their own lives to save their fellow-creatures, and
to rescue the property of their fellow-subjects; secondly, the degree
of danger and distress from which the property is rescued--whether it
were in imminent peril, and almost certain to be lost if not at the
time rescued and preserved; thirdly, the degree of labor and skill
which the salvors incur and display, and the time occupied. Lastly, the
value. Where all these circumstances concur, a large and liberal reward
ought to be given; but where none, or scarcely any take place, the
compensation can hardly be denominated a salvage compensation: it is
little more than a remuneration _pro opere et labore_ (The Clifton, 3
Hagg. Adm. 14, 48 [_quoted_ with approval in Cope _v._ Drydock Co., 119
U. S. 625]).
General Average is also the price of safety under different
circumstances. It is the contribution required of the parties interested
in a maritime venture to compensate the sacrifice of a part for the
safety of the rest. The typical instance is the jettison of cargo in
order that the ship may be saved; the loss is equalized by a general
average.
=2. What May Be Salved.=--The subject of salvage can only be vessels and
property that is or has been on board a vessel. In Chapter I § 4, there
is some discussion of what constitutes a ship within the meaning of the
law. In Cope _v._ Drydock Co., 119 U. S. 625, salvage was claimed
rescuing a floating drydock, which had been in collision with a
steamship and was on the point of sinking. The Court held that the
service performed was not salvage because the drydock was not a vessel
and not a salvable thing. Justice Bradley said that a dock, though
floating, was not used for the purpose of navigation and that "no
structure that is not a ship or vessel is a subject of salvage," adding:
A ship or vessel, used for navigation and commerce, though lying at a
wharf, and temporarily made fast thereto, as well as her furniture and
cargo, are maritime subjects, and are capable of receiving salvage
service.
* * * * *
If we search through all the books, from the Rules of Oléron to the
present time, we shall find that salvage is only spoken of in relation
to ships and vessels and their cargoes, or those things which have been
committed to, or lost in, the sea or its branches, or other public
navigable waters, and have been found and rescued.
* * * * *
There has been some conflict of decision with respect to claims for
salvage service in rescuing goods lost at sea and found floating on the
surface or cast upon the shore. When they have belonged to a ship or
vessel as part of its furniture or cargo they clearly come under the
head of wreck, flotsam, jetsam, ligan, or derelict, and salvage may be
claimed upon them. But when they have no connection with a ship or
vessel some authorities are against the claim, and others are in favor
of it.
It was held by the Supreme Court of the United States (The Jefferson,
215 U. S. 130) that where a vessel, laid up in drydock in a shipyard for
repairs, was saved from destruction by a fire, which was raging in the
shipyard, by tug boats in the stream which played streams of water from
the stream upon the endangered vessel, it was a case of salvage. The
Court after remarking that a maritime lien for repairs existed against a
vessel in drydock, said:
There is no distinction between the continued control of admiralty over
a vessel when she is in a drydock for the purpose of being repaired,
and the subjection of the vessel when in a drydock for repairs to the
jurisdiction of a court of admiralty for the purpose of passing upon
claims for salvage services, by which it is asserted the vessel, while
in the dock, was saved from destruction.
=3. Salvor's Lien.=--Whoever performs a salvage service acquires a
maritime lien of the highest rank upon the property saved for this
compensation. This lien is quite independent of possession and will be
enforced by a court of admiralty by a proceeding _in rem_, i.e., against
the ship. Ordinarily it is the salvor's duty promptly to place the
property in possession of the court by libeling it for salvage at his
first opportunity for such an award as the court shall deem just. This
will usually be his only remedy, in the absence of an express contract.
There is no personal liability against the owner of the property saved
unless he requested performance of the service or received the property
with knowledge of the claim.
=4. Amount of Reward.=--The amount of salvage is usually regulated by
the value of the property saved and the value of that engaged in the
operation; the degree of risk or peril and the time and expense of the
salvors. The expenses of volunteer salvors cannot be recovered as such,
though the court may take them into consideration in fixing the amount
of the award.[24] Success is essential. There can be no salvage award
for the most meritorious efforts if unsuccessful. It is the policy of
the admiralty to stimulate efforts for the rescue of property in
distress by liberal rewards and also to discourage exorbitant demands
and inequitable behavior by correspondingly reducing them. In the case
of the Sandringham, 10 Fed. 556, the court listed the factors involved
in determining the amount to be awarded as salvage as follows:
(1) The degree of danger from which the lives or property are rescued.
(2) The value of the property saved.
(3) The risk incurred by the salvors.
(4) The value of the property employed by the salvors in the wrecking
enterprise, and the danger to which it was exposed.
(5) The skill shown in rendering the service.
(6) The time and labor occupied.
(7) The degree of success achieved, and the proportions of value lost
and saved.
Work of this nature is often performed by contract, by vessels and
corporations equipped and organized for the purpose. This fact does not
militate against their claims as salvors in proper cases but the courts
will not hesitate to modify the contract if they consider it unjust. The
case of the Leamington, 86 Fed. 675, contains a note giving many
instances of amounts awarded under various circumstances.[25]
As a general thing salvage is not allowed in an amount exceeding 50 per
cent of the value of the thing salved, although there are cases where as
high as 75 per cent has been allowed. There was an old rule, "50 per
cent for a derelict." This rule has been departed from in many cases.
The amount to be awarded lies largely in the sound discretion of the
trial court which takes into consideration all of the elements of labor,
risk, value, time, expense, and any other features that may enter into
the case. It is practically impossible to lay down rules for determining
the amount to be awarded. The books, however, say that the award should
not be so great that the salvage service becomes of no use to the owner
of the thing salved. For example if the charges and expenses of the
owner come to 50 per cent of the value of the thing salved, an award of
50 per cent will not be made to the salvors, no matter how perilous,
arduous and meritorious their work may have been to the owners.
Sometimes the award when computed on percentage of the value of the
salved property is very small, in some cases only about 4 per cent.
These are cases where the service performed was not extensive or highly
meritorious and the salvage property was of large value, so that the
amount of money received by the salvors was considerable, though the
percentage was small. The amount awarded to salvors is not always
calculated on the basis of a percentage or proportion of the value
salved; in many cases the trial court fixes a flat figure which it
thinks the service worth.
=5. Who May Be Salvors.=--Generally, any one not under obligation to
render the service, may rank as a salvor, and, conversely, those obliged
to work, cannot claim any reward. Sailors on the ship in peril cannot be
salvors until released from their engagement or an abandonment of the
ship. A passenger cannot earn salvage by mere labor on a vessel in
peril, for this is his duty, yet for extraordinary services he may have
a salvage award. Such was the case of the _Great Eastern_ when she had
been disabled by a gale and was lying helpless in the trough of the sea.
Among the passengers was a civil engineer who ingeniously devised and
after twenty-four hours' labor carried out a plan for steering her so
that she was able to make port. The court awarded him about $15,000. So,
in the _Fair American_, captured by a French privateer and in charge of
a prize-crew, her cook succeeded in recapturing and bringing her into
port by exertions outside his line of duty, and ranked as a salvor
accordingly.
A pilot acting within the line of his duty, however he may entitle
himself to extraordinary pilotage compensation as distinct from ordinary
pilotage for ordinary services, cannot be entitled to claim salvage, but
a pilot is not disabled from becoming a salvor if he performs salvage
services outside the scope of his duties. He stands in the same relation
to the property as any other salvor (Hobart _et al._ _v._ Drogan, 10
Peters 108).
=6. Distinction Between Towage and Salvage.=--Cases have frequently
arisen in which a vessel that has towed another into a place of safety
has claimed salvage for so doing. Whether or not the service rendered
amounts to salvage and entitles the towing vessel to a salvage reward,
or is mere towage to be recompensed as such, is sometimes difficult to
determine. There is no fixed guide. In the J. C. Pfluger, 109 Fed. 93,
the Court said:
If the vessel towed was by this means aided in escaping from a present
or prospective danger, the service will be regarded as one of salvage,
and the towage as merely an incident. If, upon the other hand, the
vessel thus assisted was not encompassed by any immediate or probable
future peril, such service will be treated as one of towage merely, and
compensated as such. It was said by Dr. Lushington (The Charlotte, 3 W.
Rob. Adm. 68) that, in order to constitute a salvage service, it is
"not necessary that the distress should be actual or immediate, or the
danger imminent and absolute; it is sufficient if, at the time the
assistance is rendered, the ship has encountered any damage or
misfortune which might possibly expose her to destruction if the
service were not rendered." In McConochie _v._ Kerr (D. C. 9 Fed. 50),
Judge Brown, in pointing out the distinction between a salvage and
towage service, said:
"A salvage service is a service which is voluntarily rendered to a
vessel needing assistance, and is designed to relieve her from some
distress or danger, either present or to be reasonably apprehended. A
towage service is one which is rendered for the mere purpose of
expediting her voyage, without reference to any circumstances of
danger."
In the case of the Emily B. Souder, 15 Blatch. 185, Fed. Cas. No.
4,458, Chief Justice Waite stated the law upon this point as follows:
"It is well settled that, if there is not actual or probable danger,
and the employment is simply for the purpose of expediting the voyage,
such service is towage and not salvage."
Under the plain and well-settled rule declared in the foregoing cases,
whether a particular service was one of salvage or towage is always a
question of fact to be ascertained from a consideration of the
circumstances under which the court shall find the service was
rendered; and, unless the evidence shows that the vessel towed was
thereby assisted in getting safely away from some actual or apprehended
peril, the case is not one in which salvage has been earned.
In the Reward, 1 W. Rob. 174, a distinguished English judge
laid it down that,
Mere towage service is confined to vessels that have received no injury
or damage; and mere towage reward is payable in those cases only where
the vessel receiving the service is in the same condition she would
ordinarily be in without having encountered any damage or accident.
=7. Distribution of Salvage Award.=--The rule of the admiralty is that
all who materially contribute to the rescue are entitled to share in the
award. Thus the master and crew of the salving vessel are entitled to
participate with the owner, according to their individual exertions and
success. The owner should not appropriate the whole unless the crew were
especially employed for the work. The court will frequently divide the
amount between the owner and the crew and apportion the share of the
latter in proportion to their wages. The principal element in
determining the owner's share is the value of the ship and the risk to
which it was exposed. Under special circumstances the cargo-owner may
also participate.
Where the salving vessel is a steamer the owners' share of the salvage
is larger and that of the crew proportionately smaller than if she were
a sailing vessel or other craft because of the superior efficiency of a
steamer in salvage work. Credit and compensation for the superior
character of the salving vessel must go to her owners. In Transportation
Co. _v._ Pearsall, 90 Fed. 435, there is a discussion of salvage
distribution. In that case three tugs, all belonging to the same owner,
had salved a steamer which had gone ashore. The owner of the tugs
affected a settlement with the owners of the steamer and received
$13,000 in full of all demands. A libel _in personam_ against the master
and owner of the tugs was brought by the engineer and fireman of the
third, each claiming a share of the $13,000. The court decided that the
owner of the tugs was entitled to two-thirds of the salvage award, and
ordered the remaining one-third to be distributed among the masters and
crews of the tugs proportionately, awarding the engineer $500 and the
other libellants $200 apiece, these awards being in proportion to their
wages. The court remarked that under the rule once prevailing in
admiralty the owners of the salving vessel could not receive more than
one-third of the award unless there were unusual circumstances of peril
to the salving vessel, that that rule had been modified in the direction
of greater liberality to steamships, citing cases in which the share of
the salving vessel had been fixed at three-fourths and even four-fifths.
The Court said:
An examination of the cases will show that there is no fixed rule with
regard to the proportion in the salvage award allotted to the owners of
the salving vessel. Most frequently salvage services are rendered upon
a voyage, in the absence of the owners, and when the salving vessel is
under the charge of, and is controlled by, the master and crew. As
salvage is awarded for the encouragement of promptness, energy,
efficiency, and heroic endeavor in saving life and property in peril,
the claims of the master and crew who exhibited these qualities must
meet the most favorable consideration. At the same time an allowance is
made for the owners whose property has been imperiled. But when the
owners direct the service, or when the peril encountered is chiefly
that of the salving vessel, with no proportionate peril to the crew, an
award to the owners is more liberal.
It was also said that the making of distribution in proportion to the
wages is a "just and uniform rule in all ordinary cases."
Where salvage is performed by successive sets of salvors,--for instance,
if one set of salvors gets a ship off a reef, and a second set takes her
into port--the award is apportioned between the two sets, special
consideration being shown to the first set of salvors because they made
the work of the second possible.
=8. Distribution of Liability for Payment.=--The vessel, cargo, and
freight money saved are to contribute to the payment of the salvage
award according to their relative values at the port of rescue. As
between the ship and cargo, each is liable for its own proportion alone.
The salvor cannot recover the entire salvage from either, but only the
proportion for which respondent is liable. As was said by Justice Story
in Stratton _v._ Jarvis, 8 Peters 4:
It is true that the salvage service was in one sense entire; but it
certainly cannot be deemed entire for the purpose of founding a right
against all the claimants jointly, so as to make them all jointly
responsible for the whole salvage. On the contrary, each claimant is
responsible only for the salvage properly due and chargeable on the
gross proceeds or sales of his own property _pro rata_. It would
otherwise follow that the property of one claimant might be made
chargeable with the payment of the whole salvage, which would be
against the clearest principles of law on this subject.
Where a ship is saved and unable to continue her voyage and carry out
her contracts of affreightment, the freight is one of the things of
value saved, but in determining the value of the freight saved for the
purpose of assessing a salvage award against it, "the freight to be
considered is only such proportion of the freight earned by the entire
voyage as the distance at which the salvage service was rendered from
the port of departure bears to the whole voyage." The Sandringham, 10
Fed. 556.
=9. Statutory Regulations.=--By the Act of August 1, 1912, (7 U. S. Comp
St. §§ 7990-7994) it is provided that the right to remuneration for
salvage services shall not be affected by the fact that the same person
owns both vessels; that the master must render assistance to every
person found at sea who is in danger of being lost, so far as he can do
so without serious danger to his own vessel, under penalty of not
exceeding one thousand dollars or imprisonment not exceeding two years,
or both; that salvors of human life are entitled to share in the award;
that salvage suits must be brought within two years; and that nothing in
the Act shall apply to ships of war or Government ships on public duty.
=10. Instances of Salvage Services.=--Where a fishing schooner on the
Atlantic picked up a floating body on which was a wallet containing a
considerable sum of money and promptly delivered the treasure to the
court, they were awarded one-half the amount, to be apportioned
one-third to the owners of the fishing vessel, one-third to the master
and one-third to the crew; the master's share was made somewhat larger
because he had resisted the proposal of some of the crew to merely
divide the coin and say nothing. The balance was turned over to the
public administrator of Massachusetts to hold for the benefit of the
unknown heirs, and, if they failed to appear, for further disposition
according to law (Gardner _v._ Gold coins, 111 Fed. 552). The Egyptian
obelisk, now in London and known as "Cleopatra's Needle," became the
subject of salvage services in the Bay of Biscay, during its voyage from
Alexandria and the award was two thousand pounds (see Dixon _v._
Whitworth, 4 Asp. M. L. C. 138, 327). In the Jefferson, 215 U. S. 130,
the vessel was in a drydock and threatened by a conflagration on
adjoining property; tugs stood by and played streams from their hose
upon her until the danger was past. The court overruled the argument
that the service could not be salvage because the vessel was not afloat
and directed an award. Where, however, a steamer had been swept high and
dry on the shore about a hundred feet above high-water mark and lay
there five years, the court declined to consider as salvage the plan and
work of floating her by dredging out a basin and canal for her
flotation; she had ceased to be engaged in commerce and navigation and
the contract was not maritime (Skinner, 248 Fed. 818). The doctrine of
this case will probably not be extended beyond its own facts. In the
Burlington, 73 Fed. 258, where the ship had been stranded to put out a
fire and lay as a menace to navigation while the owner and underwriters
were in dispute as to his right to abandon, and the salvor brought her
safely into port, he was awarded the entire value as salvage; while in
Murphy _v._ Dunham, 38 Fed. 503, where the salvor proceeded on the
erroneous idea that the cargo-owner's title is extinguished when his
property sinks, and salved it for his own use, he was only allowed his
expenses and narrowly escaped being assessed for the full value. The
Albany, 44 Fed. 431, is another instance of the persistence of the old
notion that title is acquired by finding property lost at sea; the ship
had stranded and the master was jettisoning a valuable cargo of package
freight; the countryside swarmed with wagons and lighters to appropriate
what could be obtained. The Court held the parties as for embezzlement
and said there was a medieval flavor about their conduct which recalled
to a student of maritime law the customs of the ancient Gauls, who not
only appropriated the cargoes of vessels wrecked on their coasts but
sold their crews into slavery or sacrificed them to their gods. The
Court quoted the following succinct statement of the nature of salvage
from Mr. Justice Story:
In cases of salvage, the party founds himself upon a meritorious
service, and upon an implied understanding that he brings before the
court, for its final award, all the property saved, with entire good
faith, and he asks a compensation for the restitution of it uninjured
and unembezzled by him. The merit is not in saving the property alone,
but it is in saving and restoring it to the owners. However meritorious
the act of saving may have been, if the property is subsequently lost,
and never reaches the owner, no compensation can be claimed or decreed.
=11. Distinction Between General and Particular Average.=--The former is
a partial loss, voluntarily incurred for common safety, and recompensed
by all benefited thereby; the latter is a partial loss involuntarily
caused, which must be borne by the party on whom it falls. One of the
most approved definitions of general average is,--"All loss which arises
in consequence of extraordinary sacrifices made, or expenses, incurred,
for the preservation of the ship and cargo, comes within general
average, and must be borne proportionately by all who are interested."
In the case of Barnard _v._ Adams, 10 How. (U. S.) 270, the ingredients
of general salvage were thus stated:
In order to constitute a case for general average, three things must
concur:
1st. A common danger; a danger in which the ship, cargo and crew all
participate; a danger imminent and apparently "inevitable," except by
voluntarily incurring the loss of a portion of the whole to save the
remainder.
2nd. There must be a voluntary jettison, _jactus_, or casting away, of
some portion of the joint concern for the purpose of avoiding this
imminent peril, _periculi imminentis evitandi causa_, or, in other
words, a transfer of the peril from the whole to a particular portion
of the whole.
3rd. This attempt to avoid the imminent common peril must be successful.
=12. Essential Elements.=--The rule expresses the plainest principles of
common justice but is confined to maritime law and within somewhat
precise limitations. The sacrifice for which contribution is sought must
be directed by the master of the ship or by his authority;[26] it must
be voluntary and for the safety of the entire venture;[27] it must be
necessary and successful;[28] and neither the party whose fault
occasioned the loss nor any outside of the interests represented in the
ship and cargo can have contribution.[29] Thus the scuttling of a ship
by order of port authorities to extinguish a fire in the hold is not
general average, although it would have been if done by order of the
master. If the vessel is stranded by force of wind or current, there is
no general average loss, while if the master deliberately puts her
ashore, choosing the locality to escape a greater danger, it will be
considered a case for general average by American law. Where the master
threw overboard a quantity of coin, not to save the ship and cargo, but
to prevent the money falling into enemy hands, it was not general
average although it would have been if his purpose had been to lighten
the ship in order to escape. Where the sacrifice is not necessary, in a
pecuniary sense, for the common safety, it is not allowed, as where a
vessel met a foundering emigrant ship and threw overboard part of its
cargo in order to take the passengers on board; this was not a general
average loss entitling the owner of the cargo to contribution. When the
sacrifice is unsuccessful there is no general average, as where the
master of a ship which was dragging her anchors cut away the masts to
prevent the drifting, but she finally went ashore; and where the cause
of the sacrifice is a fault of the ship or defect in the cargo,
contribution is denied; so also when a tug cuts the towline of her
barges in a storm to save herself from going ashore with them and
thereby saves herself.
=13. Instances of General Average.=--The classic example[30] is throwing
overboard (or, as it was called, jettisoning) a part of the cargo in
order to escape a storm. Thus if there is a ship worth $20,000, freight
list, $10,000, and cargo $70,000, of which X owns $30,000, Y $20,000,
and Z $20,000, and $10,000 of X's goods were jettisoned, each interest,
including X, will bear 10 per cent of the sacrifice; the ship pays X
$2,000; the freight list pays him $1,000; and Y and Z pay him $2,000
each; he receives $7,000 and stands $3,000 and so the sacrifice is
equally borne by all. Cargo may be burnt as fuel, or lost by a sale or
pledge to raise money to continue the voyage; a mast may be cut away to
lighten the ship or the engines injured by overwork to escape disaster
or expenses incurred by deviating to a port of refuge for repairs; cargo
may be warehoused or transshipped; salvage expenses may be incurred in
saving the venture from a stranding or sinking after a collision; and
all the various and multiform forms of loss sustained and expenses
incurred for common safety, within the definition, are made good by the
contribution of all.
Ordinarily a jettison of cargo carried on deck does not give rise to
general average, although deck cargo is not exempt from contributing its
share of the average for other cargo jettisoned for its safety. But deck
cargo will be entitled to participate in general average where the goods
are of such character as it is customary in the trade to carry on deck;
also where the other cargo-owners have expressly consented that it be
carried on deck; also usually in coasting and river voyages. The cases
excluding deck cargo from average have generally arisen out of sailing
vessels and it may be that the rule should be confined to sailing
vessels.
=14. The Adjustment.=--This ascertains the amount of the claim and the
respective shares of contribution. It is the duty of the master and
shipowner to see that timely steps are taken for this purpose.
After a voluntary sacrifice of part of the adventure, and a consequent
escape of the rest from imminent peril, the owner of the ship, or in
his absence, the master as his agent, has the duty of having an
adjustment made of the general average, and has a maritime lien on the
interests saved, and remaining in his possession, for the amount due in
contribution to the owner of the ship; and the owner of goods
sacrificed has a corresponding lien on what is saved, for the amount
due him (Ralli _v._ Troop, 157 U. S. 386).
The work is usually done by an adjuster and often requires a high degree
of professional skill. He determines what losses are to be adjusted,
what goods contribute, how the values of the receiving and contributory
interest are estimated, and when and where the adjustment should be
made. He must necessarily bring to this work a special acquaintance with
maritime law and the current decisions of the courts on the subject as
well as a practical acquaintance with the values involved and the
methods of business which they represent. He is, however, merely an
expert without any judicial authority and his work is subject to review
by the parties in interest. In practice, the shipowner places in his
hands the documents from which the necessary facts can be ascertained;
the protest of the master and mariners showing the circumstances under
which the sacrifice was made and the manifest of the cargo to show the
goods involved will be essential; in addition there may be the report of
surveyors as to the condition and value of the ship and other property
involved and such other evidence as the adjuster requires to have before
him, the valuations of hull, cargo, freight and all other items involved
in the contribution, excepting the wages of the master and crew, their
personal effects and the apparel, jewelry and baggage of the passengers.
[24] Teutonia _v._ Erlanger, 248 U. S. 521.
[25] See § 10, this title, _infra_.
[26] The reason is that the master "derives his authority from the
implied consent of all concerned in the common adventure" (The Hornet,
17 How. 100). "The character of agent respecting the cargo is thrown
upon the master by the policy of the law, acting on the necessity of the
circumstances in which he is placed" (The Gratitudine, 3 C. Rob.
Adm. 240).
[27] "Where the sacrifice, while for the general benefit of the whole
adventure, was also for the particular benefit of the cargo, it was not
a subject of general average" (The Mary, 1 Sprague 19).
[28] Expenses voluntarily and successfully incurred, or the necessary
consequences of resolution voluntarily and successfully taken, by a
person in charge of a sea adventure, for the safety of life, ship and
cargo, under the pressure of a danger of total loss or destruction
imminent and common to them, give, the ship being saved, a claim to
general average contribution (Abbott on Shipping, 537, note).
[29] Thus where a tug abandoned her tow in order to save the tug; the
owners of the tow were not entitled to general average contribution
because it was not a part of the ship or cargo.
[30] Probably the earliest recorded case is that mentioned in Jonah 1,
where cargo was jettisoned to lighten a ship in peril on a voyage from
Joppa to Tarshish. The elements of general average were present, though
it does not appear that an adjustment was made.
CHAPTER XIV
CRIMES COMMITTED AT SEA
=1. Definition.=--A crime consists in the violation of a public law
either forbidding or commanding an act to be done. One act may
constitute several crimes against different jurisdictions, as against a
State and the United States and a foreign country. Crimes are classified
as treason, felonies and misdemeanors. Treason against the United States
consists only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. Felonies are crimes punishable by
death or imprisonment in a state prison; all other crimes are
misdemeanors.
Crimes committed at sea are those accomplished upon the high seas or
within the jurisdiction of the admiralty, which extends over all
navigable waters. Such crimes are punishable by the United States so far
as Congress legislates on the subject and otherwise by the particular
sovereignty within whose jurisdiction the offense is committed.
=2. Admiralty Criminal Jurisdiction.=--The constitutional grant embraces
criminal as well as civil cases and no crime can escape punishment
because committed on shipboard or on the high seas. The provisions of
the Constitution in regard to the trial of crimes under the laws of the
United States require the proceedings to be according to the practice of
the common law, so that they are before a jury as in ordinary cases and
the ordinary rules of criminal law are applied. These crimes are covered
by the Criminal Code (10 U. S. Comp St. 1916, 10419-10444; 10445-10462;
10463-10483). There may also be other crimes according to the law of the
place where the vessel may be or according to the laws of the State or
country from which she hails. Merchant vessels are regarded for many
purposes as floating portions of the country to which they belong and of
the particular State of their home port. An American merchant vessel on
the high seas will therefore continue under the appropriate laws both of
the United States and of her own particular State, and while in foreign
ports she will also be subject to local law. She will never be outside
the scope of some law and although several jurisdictions may overlap,
crimes committed on board will not escape punishment.
=3. Place of Trial.=--Whenever an offense is committed on board of an
American vessel, it is the duty of the master and crew to detain the
offender and surrender him to the proper authorities for trial as soon
as may be. If the offense is within the limits of a particular State,
the trial must be in a Federal court therein; if committed on the high
seas, then in a like court of the district wherein the offender is
apprehended or into which he is first brought; if within a port of a
foreign country, the local laws may prevail. The jurisdiction of every
independent nation over the merchant vessels of other nations within its
boundaries is absolute and exclusive and arrests may be made thereon and
offenders removed for trial according to the laws of the locality. The
right of local authorities to search a vessel in their ports for a
person charged with crime is established unless modified by treaty. The
master is bound to submit to the jurisdiction within which his vessel
lies. In practice a distinction is made between offenses affecting the
peace and dignity of the foreign country and those only involving the
internal order and discipline of the ship. A certain comity preserves
the latter from outside interference and local authorities will usually
decline to act in such cases or interfere with the general authority of
the master. It is frequently provided by treaty that disputes between
the masters, officers and crews may be adjudicated by their consuls,
provided that they do not disturb the peace or tranquillity of the port.
=4. Offenses Not Consummated on Shipboard.=--Where the crime is
committed on the high seas although not on shipboard, the admiralty
jurisdiction as administered by the Federal courts will still be
enforced. The case of Holmes, 1 Wall. Jr. 1; 26 Fed. Cas. No. 15,383, is
an unusual example. The American ship, _William Brown_, loaded with
passengers and cargo, struck an iceberg in the North Atlantic and had to
be abandoned. Nine of the crew and thirty-two passengers got into the
longboat; Holmes was one of the crew and took charge of her in an
attempt to reach Newfoundland, then about three hundred miles away. The
longboat proved leaky and was so seriously overloaded by those on board
as to fill with water in the sea which began to rise. In the face of
urgent necessity and under Holmes' general directions, sufficient of the
passengers were thrown overboard to enable the boat to float until
picked up by a passing ship. Holmes was convicted of manslaughter in the
Eastern District of Pennsylvania.
=5. Penalties and Forfeitures.=--The ship herself may be a
quasi-criminal under maritime law. All commercial nations find it
necessary for the enforcement of their laws and regulations in regard to
commerce by sea, to impose penalties upon the vessel by or through which
violations occur. So a vessel which has engaged in any piratical
aggression may be condemned and sold for the use of the United States.
Violation of a blockade or carriage of contraband of war renders the
ship liable to seizure and sale by the Government. A ship licensed for
the coasting trade may be forfeited if she engages in any other, and
many penalties may be inflicted upon the vessel for acts of which the
owner is entirely innocent. Similarly a false oath made in order to
obtain the registry of a vessel, or any other fraud for the purpose of
obtaining registry, enrollment or licenses will result in her
forfeiture, and so will a sale to an alien without complying with the
provisions of the statutes (Chapter 11, § 10, _supra_). Forfeiture of a
vessel will also result from an attempt to change her name, otherwise
than by the method provided by law (Chapter 11, § 9, _supra_), or to
deceive the public as to her true name and character by any contrivance,
device or advertisement of law where the owner or the master is privy to
the offense, as for example the importation of diseased cattle. The
doctrine of the personality of the ship again appears in the criminal
law of the admiralty which treats her like an individual for purposes of
regulation and punishment. The principle was laid down by Justice Story
in the brig Malek Adhel, 2 How. (U. S.) 210:
It is not an uncommon course in the admiralty, acting under the law of
nations, to treat the vessel in which or by which, or by the master or
crew thereof, a wrong or offense has been done as the offender, without
any regard whatsoever to the personal misconduct or responsibility of
the owner thereof.
* * * * *
The acts of the master and crew, in cases of this sort, bind the
interest of the owner of the ship, whether he be innocent or guilty;
and he impliedly submits to whatever the law denounces as a forfeiture
attached to the ship by reason of their unlawful or wanton wrongs.
Thus if a vessel fails to carry the wireless equipment prescribed by law
a fine is imposed upon the master and is a lien upon the ship
enforceable by law in admiralty. The statute governing the equipment of
vessels with radio telegraph apparatus is given under § 11 _infra_.
Innocent cargo is not involved in the forfeiture of a guilty vessel, and
where the owner and master of a vessel is innocent she will not usually
be forfeitable by reason of the guilt of the cargo.
The sending, or attempting to send to sea, of a vessel so unseaworthy as
to be likely to endanger life, is a misdemeanor for which the person
guilty is to be punished by fine or imprisonment, or both (Act of
December 21, 1898, § 11), unless he is able to prove either that he used
all reasonable means to insure her being sent to sea in a seaworthy
state, or that her going to sea in an unseaworthy state was under
circumstances reasonable and justifiable.
=6. Federal Criminal Code.=--This was promulgated by the Act of March 4,
1909, and will be found in 10 Comp. St. 1916, commencing at page 12491.
Maritime offenses are grouped in Chapter 11, "Offenses within the
admiralty and maritime and the territorial jurisdiction of the United
States," and Chapter 12, "Piracy and other offenses upon the Seas."
Unlike the legislatures of the several States, which have an inherent
power to define and punish any act as a crime, subject to constitutional
limitations, Congress is confined to the powers enumerated in the
Federal Constitution. In regard to offenses at sea, its power is derived
from § 8 of Article 1, "To define and punish Piracies and Felonies
committed on the high seas, and Offenses against the Law of Nations,"
and from Article III which provides that the judicial power shall be
versed "in such inferior courts as the Congress may from time to time
ordain and establish" and shall extend "to all cases of admiralty and
maritime jurisdiction." Chapter 11 provides for the punishment of
murder, manslaughter, felonious and simple assaults, attempts to commit
murder or manslaughter, rape, seduction, loss of life by misconduct of
officers of vessels, maiming, robbery, maritime arson, larceny and
receiving stolen goods, when committed upon the high seas, or any other
waters within the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular State, or within
such admiralty jurisdiction on board of any vessel belonging in whole or
in part to the United States, or any citizen thereof, or corporation
created under its laws or those of any of its States, Territories or
Districts; also, when committed upon any American vessel on a voyage on
the Great Lakes, or upon any island, rock or key, containing deposits of
guano and appertaining to the United States.
Chapter 12 provides for the punishment of piracy; maltreatment of crews;
incitement of revolt or mutiny; seamen laying violent hands on
commanders; abandonment of mariners in foreign ports; conspiracy to cast
away vessels; plundering vessels in distress; holding false lights;
attacking vessels with intent to plunder; breaking and entering vessels;
destruction of vessels at sea; robbery on shore by pirates; arming
vessel to cruise against citizens; piracy under color of foreign
commission; piracy by aliens; voluntary surrender to pirates; plotting
or corresponding with pirates and selling arms or intoxicants to any
aborigines in Pacific Islands. The punishments provided for the offenses
in these two chapters are generally severe but in harmony with what
experience has shown to be appropriate for the crimes dealt with.
Besides these provisions, the Code, in Chapter 10, deals with the slave
trade and peonage; in Chapter 2, with offenses against neutrality; and
in Chapter 9, with offenses against foreign and interstate commerce,
such as carrying explosives on passenger vessels.
Title LIII Merchant Seaman (7 Comp St. §§ 8380-8391) contains various
provisions in respect of offenses and punishments of seamen; desertion;
willful disobedience; assaults on officers; damaging the vessel;
embezzlement of stores or cargo; smuggling; drunkenness; carrying
sheath-knives; unlawful boarding; soliciting seamen as lodgers; and
corporal punishment are there dealt with.
=7. Concurrent Jurisdictions.=--There is no doubt that Congress has the
power to make all crimes committed within the admiralty jurisdiction
punishable in the federal courts but it has not done so and is not
likely ever to so enact. Neither is it likely ever to assert an
exclusive jurisdiction over all or any such crimes except as may be in
violation of a purely federal enactment. Where this exclusive
jurisdiction has not been asserted, either in terms or by necessary
implication, state laws are not superseded by federal, and the same act
may be punished as an offense against the United States and also as an
offense against the State; it may thus be within the jurisdiction of
both federal and state courts or the one may have jurisdiction of it
under one aspect and the other under a different phase. The rule of
comity is the same as in civil cases; where there is concurrent
jurisdiction, the court which first obtains it, will continue to act to
the exclusion of the other. Where the defendant obtains an acquittal in
one court of concurrent jurisdiction, the judgment is a bar to a
subsequent trial in the other, since he is not subject, for the same
offense, to be twice put in jeopardy of life or limb.
=8. Limitations of Prosecutions.=--The right of the government to
prosecute for a crime is not barred by any lapse of time unless its
statutes so expressly provide. In the federal courts, there must be an
indictment within three years after the offense was committed, in most
instances; for the slave trade, the term is five years; but these terms
do not run while the offender is a fugitive from justice.
=9. Piracy.=--While the majority of offenses under maritime law only
differ from like offenses on land in respect of locality, piracy is
confined to the water. Pirates are enemies of all mankind and the
offense is against the universal laws of society. There is a piracy,
therefore, by the law of nations and those guilty of it are subject to
pursuit, seizure and punishment by the vessels of every nation. There is
also a statutory piracy which is punishable only within the limits of
the jurisdiction which defines it. The pirate by the law of nations is
an outlaw whom any nation may capture and punish. He is one who, without
legal authority from any state, attacks a ship with the intention to
appropriate what belongs to it; in other words, his offense is that of
depredation on the high seas without authority from any sovereign state.
All private, unauthorized maritime warfare is piratical because it is
incompatible with the peace and order of the high seas. It is not
necessary that the motive be plunder or that the depredations be
directed against the vessels of all nations indiscriminately; it is only
essential that the spoliation, or intended spoliation be felonious, that
is, done willfully and without legal authority or lawful excuse. In
cases of this piracy by international law, it is of no importance, for
purposes of jurisdiction, where or against whom, the offense is
committed; such pirates may be tried and punished and the ship captured
and condemned wherever found. Apart from international law, any
government may declare offenses on its own vessels to be piracy and such
offenses will be exclusively punishable by it like other crimes. St.
Clair _v._ U. S., 154 U. S. 134, may be examined in regard to an
instance of statutory piracy; while the Ambrose Light, 25 Fed. 408, is a
very learned and authoritative opinion on the modern views of piracy
under international law.
=10. Barratry.=--This expression frequently appears in maritime law and
includes any act done by the master or crew, with criminal intent, in
violation of their duty to the shipowner and without his connivance. It
is a general term applicable to many criminal acts and therefore not
properly classifiable as a crime by itself. The most flagrant form is
where the ship is burned, scuttled or stranded by the master or crew. In
Marine Insurance it includes every wrongful act willfully committed by
the master or crew to the prejudice of the owner, or, as the case may
be, the charterer.