5. TOWAGE 19-DUTIES OF TUG-MAKING UP Tow. It is the duty of the tug to see that the tow is properly made up, and that the lines are sufficient and securely fastened, whether she furnishes the lines to the tow or the tow to her. [Ed. Note. For other cases, see Towage, Cent. Dig. § 41.] 6. TOWAGE 19-INJURY TO BEACON BY TOW-LIABILITY OF TUG. A tug with a schooner in tow held liable for injury to a beacon, with which the tow came into collision, and which was outside the channel where the tow should have been kept; no contributory fault being found in the navigation of the schooner. [Ed. Note.-For other cases, see Towage, Cent. Dig. § 41.] In Admiralty. Suit by the United States against the schooner C. W. Mills (Mobile Towing & Wrecking Company, claimant), the tug Mary Wittich, and Thomas L. Cook, pilot. Decree for libelant against the tug Wittich. Decree affirmed, 241 Fed. 378, C. C. A. —. Alexander D. Pitts, U. S. Dist. Atty., of Selma, Ala., for the United States. G. L. Smith & Son, of Mobile, Ala., for The C. W. Mills. TOULMIN, District Judge. [1, 2] The relation between tug and tow, under ordinary circumstances, is that of independent contractor, not that of principal and agent. The tug is not the servant or employé of the tow, and the tow is not responsible for the acts of the tug. If the tow collide with some vessel on the voyage, it is not liable for the damage caused thereby, unless some negligence contributing to the collision be proved against the tow. The tow is not liable for the tug's acts, where the latter directs the navigation. The same rule applies where the tow collides with any object subject to admiralty jurisdiction, other than a vessel, such, for instance, as a beacon or channel light. Hughes, Admiralty, pp. 119, 121, 122. [3] If the tow is towing at the end of a hawser, the liability would be upon the tug if the tow steered properly, but would be upon the tow if the proximate cause of the collision was wild steering on its part. Hughes, Admiralty, 122. [4] The care required of a tug with tow is only ordinary care. But ordinary care required of those engaged in the profession of towing is a high degree of care, for they hold themselves out as experts. The measure of care required is similar to that required of pilots. They are, in fact, pilots. "As an expert, a tugboat man must know the channel and its usual currents and dangers, and the proper method of making up tows." Hughes, Admiralty, 123; The Dora Allison (D. C.) 213 Fed. 645. [5] It is the duty of the tug to see that the tow is properly made up, that the lines are sufficient and securely fastened, and whether she furnished the lines to the tow, or the tow to her. It is said that: "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 toFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes gether, and to keep them in their positions. If she failed in this duty she was guilty of a maritime fault." The Quickstep, 9 Wall. (76 U. S.) 665, 19 L. Ed. 767. * * "A tug with vessels in tow is bound to consult their safety as well as her own. She must see that what clears her of danger does not put them in peril. For many purposes they may be regarded as a part of herself. They have the benefit of her traction, and she the burden of their inertia." The Syracuse, 9 Wall. (76 U. S.) 672, 19 L. Ed. 783. [6] The tug was in fault because of the failure of the master to keep watch to see that the tow was following, so as to keep inside the channel, and within the line of the buoys which marked the channel. The N. & W. No. 2 (D. C.) 102 Fed. 921. It is the duty of a tug to take her tow by the usual channel course; the tug Wittich evidently had gone considerably to the eastward of the usual course, and so deviated from said course as to run her tow into collision with the beacon light and materially damage it. The respondent Wittich denies negligence, and claims that the Mills was towed in the customary manner and in or near the middle of the channel. The weight of the evidence shows the contrary, and shows that the beacon with which the tow collided was on the east side of the channel, where the water was only about 14 feet deep. The channel proper was 200 feet wide at the bottom and 28 feet deep. By observing and conforming to the customary course through the channel, it would, in my opinion, have been impossible for the tug to have gotten far enough to the east of the middle of the channel as to have brought her tow upon this beacon. There were no circumstances to require or justify a departure from the usual course. I do not find from the evidence any negligence or fault on the part of the schooner Mills, or the pilot in charge of her, contributing to the collision. But the weight of the evidence satisfies me that, from want of care, ignorance of the channel, negligence, or lack of maritime skill in the navigation of the tug and tow, on the part of those in charge of the tug, makes the tug Mary Wittich responsible for the collision and answerable for the damage resulting therefrom. Decree for the libelant for $415.90, with costs. THE CASCADE. (District Court, E. D. New York. November 3, 1916.) INJUNCTION 26(6)—PROCEEDINGS FOR LIMITATION OF LIABILITY-RESTRAINING ORDERS. An insurance carrier for an employer under the New York Workmen's Compensation Law (Consol. Laws, c. 67) is primarily and not secondarily liable for any award made against the employer by the State Industrial Commission, and is not entitled, in proceedings by the employer for limitation of liability as a vessel owner, to an order restraining the Commission from maintaining an action against it on its policy to recover on such an award. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 35.] For other cases see same topic & KDY-NUMBER in all Key-Numbered Digests & Indexes In Admiralty. Petition of the Merritt & Chapman Derrick & Wrecking Company, owner of the wrecking pump boat Cascade, for limitation of liability. On application of the New Amsterdam Casualty Company for restraining order. Denied. Carter & Carter, of New York City (Peter S. Carter, of New York City, of counsel), for petitioner. Robert W. Bonynge, of New York City, for respondent. VEEDER, District Judge. This is an application by the New Amsterdam Casualty Company for an order restraining the State Industrial Commission of the state of New York from instituting or prosecuting suits against it, as insurance carrier for petitioner, in respect of any claim for damage sustained by any person in the accident referred to in the petition for limitation of liability filed in this court on February 25, 1916, and in particular restraining the State Industrial Commission of the state of New York and its attorney from the further prosecution of the suit commenced by the said State Industrial Commission against the New Amsterdam Casualty Company, as insurance carrier for the petitioner herein, and now pending in the Supreme Court, County of New York, in the name of the people of the state of New York, plaintiff, against New Amsterdam Casualty Company, defendant, for failure to pay compensation due under an award made by the State Industrial Commission. It appears that on December 23, 1915, one Harry Hanson, a submarine diver employed by the petitioner, lost his life while engaged with the petitioner's wrecking pump boat Cascade in raising a mud scow which had sunk in the East River off the foot of Fifty-Seventh street, Brooklyn. On January 18, 1916, Hanson's widow applied to the State Industrial Commission for an award of compensation pursuant to the Workmen's Compensation Law (Consol. Laws N. Y. ch. 67). After a hearing the Commission made an award of $5,882.68 on February 2d, notice of which was given three days later to the petitioner, as employer, and to the New Amsterdam Casualty Company, its insurance carrier, under the Compensation Law. Thereupon, on February 25th, the petitioner filed a petition in this court for limitation of its liability to the value of the pumping boat, pursuant to Rev. St. U. S. §§ 4283-4285 (Comp. St. 1913, §§ 8021-8023); and on the same day an order of this court appointed a commissioner to receive proof of claims, directed the issue of monition, appointed a commissioner to appraise the value of the Cascade, and enjoined suits against the petitioner in the following terms: "Ordered, that until the final judgment of this court shall be rendered herein, or further order herein, all person or persons and the State Industrial Commission of the state of New York are hereby restrained and enjoined from instituting or prosecuting any suit or suits against the peti tioner in respect of any claim or claims for damage, loss, or injury alleged to have been suffered by him or them, growing out of the disaster or accident referred to in said petition." The monition was served on the Commission February 25th. An amended order of this court, dated March 3d, directed that "this order and the monition herein be served upon the New Amsterdam Casualty Company, insurance carriers for said petitioner, and that a copy of the order of February 25, 1916, be also served upon them, including them by such service in the stay therein contained." That is to say, the Casualty Company was thereby expressly— "restrained and enjoined from instituting or prosecuting any suit or suits against the petitioner in respect of any claim or claims for damage, loss or injury growing out of the disaster or accident referred to in said petition." The Commissioner proceeded to appraise the value of the Cascade, and on March 27th filed his report fixing her value at $2,500, and on May 3d this report was confirmed. Meanwhile, no part of the award made by the Industrial Commission on February 2d having been paid, the Commission on March 29th commuted its award to a lump sum and directed that suit be brought against the Casualty Company, which was done May 6th. A prior application for the same relief was denied June 6, 1916, because it was made, not by the Casualty Company, but by the attorney for the petitioner in the limitation of liability proceeding, and the petitioner's interest in the application did not appear. The latter consideration is decisive of the present application. The Casualty Company's claim for relief is based upon the assertion that it is secondarily liable for any award made against the petitioner. But according to the express terms of its insurance policy, as well as of the New York Workmen's Compensation Law, under which it was issued, the Casualty Company is primarily liable upon its direct obligation. Indeed, its counsel admitted at the hearing that under no circumstances could the Casualty Company have recourse to the Merritt & Chapman Derrick & Wrecking Company for any payment made under the policy. The Casualty Company, under its policy, undertook to pay the compensation that might be awarded against the employer. The State Industrial Commission has brought suit on that policy, in accordance with its right under the Workmen's Compensation Law. If the Casualty Company has any defense, it may be urged in that suit. The application is denied. I am authorized to state that Judge CHATFIELD concurs in this disposition of the application. (Circuit Court of Appeals, Ninth Circuit. March 5, 1917.) No. 2769. 1. ADMIRALTY —1—JURISDICTION-EFFECT OF LOCAL STATUTES. Neither local statutes, decisions, nor other local laws can abrogate or limit the maritime law applicable to an admiralty case properly before an admiralty court. [Ed. Note. For other cases, see Admiralty, Cent. Dig. §§ 1-17.] 2. ADMIRALTY 19-SUIT FOR DAMAGES LIABILITY OF PORT OF PORTLANDSTATUTORY LIMITATION. The provision of the Oregon law governing the port of Portland limiting its liability to $10,000 for damages caused by fault of its tugs or negligence of its pilots, L. O. L. § 6108, is not effective to limit the liability of the corporation in a suit for collision in a court of admiralty. [Ed. Note. For other cases, see Admiralty, Cent. Dig. §§ 233, 234.] 3. COLLISION LAND. 115-NEGLIGENCE OF PILOT-LIABILITY OF PORT OF PORT The port of Portland, a municipal corporation created by the laws of Oregon and authorized to furnish tugs and pilots for vessels between Portland and the sea, L. O. L. § 6106, is liable under the maritime law for a collision resulting from the negligence of a pilot so furnished to a vessel on her request. [Ed. Note.-For other cases, see Collision, Cent. Dig. §§ 244-247.] 4. COLLISION 95(4)—STEAM VESSELS CROSSING-VIOLATION OF RULES. A collision in the harbor of Astoria in the early morning between a steamship outbound in charge of a pilot and a bark in tow of a tug passing up the river held due solely to the fault of the steamship for violation of the starboard hand crossing rule, by attempting to crossahead of the tug, which was on her starboard hand approaching obliquely, and for failure to signal when she reversed her engines, after her crossing signal had been assented to. [Ed. Note.-For other cases, see Collision, Cent. Dig. §§ 200-202.] 5. COLLISION 21-EVIDENCE OF FAULT-VIOLATION OF RULES. Where a vessel has committed a positive breach of a statutory duty, she must show, not only that her fault probably did not contribute to a collision, but that it could not have done so. [Ed. Note. For other cases, see Collision, Cent. Dig. § 18.] Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. Suit in admiralty for collision by Wilhelm Wilhelmsen, owner of the steamship Thode Fagelund, against the bark Thielbek, Knohr & Burchard, Nfl., claimant, and the Port of Portland; also suit by Knohr & Burchard, Nfl., owner of the Thielbek, against the Thode Fagelund and the Port of Portland. Decrees against the Fagelund and the Port of Portland, from which they appeal. Modified and affirmed. For opinion below, see 218 Fed. 251. See, also, 211 Fed. 685. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 241 F.-14 *Rehearing denied May 14, 1917. |