passing vessel resulted from the failure of the tug to maintain the lights prescribed by statute.27

The tug by its irregularly placed lights misled a steamer coming towards it on a river, and, when a collision between her and the boat in tow was impending, did not back its engines, or make any effort to avert the disaster.28

A tug in charge of a licensed harbor pilot had left a bark in a part of the harbor where it was illegal for ships to anchor, the consequence being that another vessel was injured by colliding with the bark in a dense fog.29

The tug master failed to give the signal proper to be given when a vessel intended to cross to the side of a river opposite the one on which the rules of navigation required him normally to remain.30

but in making her landing the tug was not on any steady course at all.

Therefore, the situation was one of special circumstances under article 29 of the inland rules (Act June 7, 1897, chap. 4, § 1, 30 Stat. at L. 102, U. S. C. title 33, § 221), which requires both vessels to exercise precaution in such case.

In re

spect to the tug we think her manouver of crossing and recrossing the course of vessels bound up and down the river was such as to require her to keep a vigilant lookout for the purpose of warning such vessels of her movements."

27 The Alabama (1874) 1 Ben. 476, Fed. Cas. No. 122. The finding of fault was approved in (1874) 11 Blatchf. 482, Fed. Cas. No. 123. This judgment was reversed in (1876) 92 U. S. 695, 23 L. ed. 763; but the only question discussed was the apportionment of damages,

28 The Enterprise (1855) 3 Wall. Jr. 58, Fed. Cas. No. 4,500.

29 Compagnie de Navigation Française v. Burley (1910; D. C.) 183 Fed. 166, affirmed in (1912) 115 C. C. A. 199, 194 Fed. 335. The court said that, even if it were assumed that the tug was not in fault in anchoring the bark at the place in question, it was in fault in not removing her therefrom when the fog lifted for a while on the following day. It was held that the owners of the bark were entitled to recover from the owners of the tug the

The whistle of the tug was not blown when it started to haul into a river a boat which was struck by a float of a railroad company.31

The whistle of the tug was not blown while she was traversing a harbor in a fog.32

The tug master failed to answer the signals of the steamer which collided with the tow.33

The tug hauling the injured vessel, and the tug hauling the vessels by which the injury was inflicted, both failed to give proper signals.34

The tug master, while the boats in tow were being readjusted on one side of a promontory, after one of the lines had parted, failed to assign someone to the duty of listening for the obligatory bend signals which tugs approaching the other side of the promontory would give.35

amount of the damages recovered for the injury sustained by the vessel which collided with the bark.

30 The Brothers (1869) 2 Biss. 104, Fed. Cas. No. 1,969 (libel against tug and vessel with which tow collided).

31 McCahill v. Rugge (1909; Sup. Ct. App. T.) 120 N. Y. Supp. 90.

32 The Barendrecht (1922; D. C.) 286 Fed. 386. The ruling of the district judge in this case, with regard to the liability of the tugboat company to the tow, was not affected by the modifying judgment of the court of appeals in (1925; C. C. A. 2d) 9 F. (2d) 614.

See also The Raleigh (1890; D. C.) 41 Fed. 527, where the owner of a boat which had been sunk in the Hudson river by a steamer during a dense fog was held to be entitled to recover damages for personal injuries resulting from the accident. The ratio decidendi was nonperformance of the duty to see that all signals needful for the protection of the tow were given, and fault in respect of continuing the voyage unnecessarily in a dense fog.

33 The D. Newcomb (1883; D. C.) 16 Fed. 274.

34 The Zouave (1898; D. C.) 90 Fed. 440 (libel against both tugs was sustained).

35 The Catawissa (1914) 129 C. C. A. 352, 213 Fed. 14 (boat in moving flotilla collided with one in a stationary flotilla).

"136

$ 21. Negligence resulting in a collision of the tow with a bridge.

The right of action has been affirmed under the circumstances indicated by the following paragraphs:

A canal boat collided with a bridge pier owing to the incapacity of the 36 The New Philadelphia (Camden & A. R. & Transp. Co. v. Brady) (1869) 1 Black (U. S.) 62, 17 L. ed. 84, where the crew of the second ship put out a fender to mitigate the consequences of the impending collision.

The Julia (1898; D. C.) 91 Fed. 171. The court reasoned thus: "It is true that the river was unusually high, and that a brisk wind was blowing from the northwest, but these were conditions for the tug to deal with, not the canal boat. The master of the tug was required to know the capacity of his boat in the then-existing state of wind and water. If unable to handle six boats safely, he should have taken a less number. He knew or should have known whether it was prudent to venture out with six boats, and the Allen was justified in relying on his judgment. He knew the character of the wind, and that it was liable to increase and shift at that season of the year [November]. It would seem then, considering the fact that the Julia is one of the smallest and weakest of the river tugs, that it was negligent to attempt to take so large a fleet; and, in any event, there was a lack of prudence in making up the tow with two lumber boats, thus of

tug to control effectively, in the conditions of wind and water which prevailed at the time of the accident, a tow so large as that which included the boat.1

A vessel which was being towed from one point on a river to another collided with the abutment of a bridge, owing to the incapacity of the tug to resist the force of the ordinary current.2

A collision between the tow and the abutments of a bridge resulted from the fault of the tug master in attempting to pass it on a flood tide with two heavily loaded boats attached to the same side of the tug.3

The captain of a tug so negligently navigated her that on a clear day, and in good weather conditions, a barge lashed alongside her came into contact with an abutment of a bridge.3a

The tug, when hauling a tandem tow of two light barges under a bridge upon a flood tide, allowed the hawser barge to strike against one of the abutments and bound off, the consequences being that the rear barge

feet by 11 There was

fering a broadside of 200 feet to the wind. a sudden shifting of the wind, but nothing occurred which a prudent navigator might not have anticipated and avoided. . . It is safe to say that not a single well-considered case decides that such circumstances as are here proved bring the case within the rule of inevitable accident."

2 These circumstances were involved in one of the cases reported under the caption, Franklin Transp. Co. v. Great Lakes Towing Co. (1918) 160 C. C. A. 362, 248 Fed. 1019, affirming (1916; D. C.) 237 Fed. 432. For facts, see § 6, note 4, supra.

3 The J. H. Williams (1920; D. C.) 266 Fed. 560; The Julia (1898; D. C.) 91 Fed. 171 (see note 1, supra).

3a The Golden Age (1925; C. C. A. 2d) 6 F. (2d) 877. The court laid it down that, "with full knowledge of these waters, it was incumbent upon the tug to so navigate as to avoid contact with this abutment, or its extension below the water line." But actual knowledge is plainly a superfluous element in a case of this type, in which constructive knowledge of the subject-matter was imputable to the party alleged to be in fault.

also was brought into contact with the abutment, that the shock of this collision caused her lines to part, and that she went adrift and struck the abutment on the other side.3b

A collision between the tow and the draw bridge resulted from the attempt of the tug master to haul two 1,000-ton barges, on an ebb tide, with a wind blowing 20 miles an hour, through a draw 60 feet in width.3c

Two of the lighters in a flotilla on a river collided with a bridge abutment at the side of a span of 500 feet, the accident being occasioned partly by the failure of the tug master to supervise the tow with sufficient care to enable him to observe that one of the other lighters had been removed by another tug belonging to the same company, and partly by his failure to

3b The Harlem River (1925; C. C. A. 2d) 7 F. (2d) 119. In his opinion, which was adopted by the court of appeals, the district judge said: "In order to take two barges in a tandem tow safely under said bridge on a flood tide, it is necessary, because of the effect of the tide, to pass under the bridge in a particular manner, so that the first barge will not touch the abutment, because, if the first barge touches the abutment, it is impossible to prevent the second barge from striking. In the instant case the tug did not start through under the bridge in the manner necessary for a safe passage, and her master, who was experienced in such navigation, should not have attempted to go through in the manner he did, because he must have known that danger was imminent, and this constituted negligence."

3c The Patriotic (1926; C. C. A. 3d) 14 F. (2d) 897.

The Allegheny (1918) 164 C. C. A. 118, 252 Fed. 6. The court argued thus: "Under such facts-a broad, open roadway; the lashings of the tow secure; the wind and water conditions favorable-it is clear that the passage through the span [of 500 feet] of the bridge in safety was one that should have been made, and the sinking of the two lighters, without any concurring fault on their part, against the pier, was so incompatible with the safe passage to be expected under such conditions that the burden rested upon the tug to exculpate herself

allow for the set of the current towards one of the banks of the river.1 The latter element was one of those upon which fault was predicated in the cases cited below.5

A tug, after having whistled for the opening of a railway bridge about 500 feet beyond a highway bridge which she was approaching, entered the space between the two bridges without ascertaining whether the railway bridge was open, and was unable to stop the schooner in tow soon enough to prevent her from colliding with the piles at one side of the bridge.

The tug, when about to pass a drawbridge, approached it too closely before giving the signals, the response to which would indicate whether the draw would be open when the tug reached it.7

This

from presumed fault. collision could not have occurred without the fault of someone, and, the lighters being without fault, it follows the fault is presumptively that of the tug, which was in exclusive control, unless she has shown the collision was the result of inevitable accident, or was caused by some agency other than the tug or tow." It was held that, having regard to the duty incumbent on the tug master in respect of the supervision of the tow, the presumption of fault was not rebutted by showing that the safety of the tow had been endangered by the removal of one of the lighters.

5 The Lady Pike (Germania Ins. Co. v. The Lady Pike) (1874) 21 Wall. (U. S.) 1, 22 L. ed. 499, reversing (1869) 2 Biss. 141, Fed. Cas. No. 7,985 (note 19, infra); The Allegheny (Fed.) note, 4 supra.

The C. F. Roe (1901; D. C.) 108 Fed. 285.

7 In The Christiania Baird (1910) 104 C. C. A. 22, 180 Fed. 705, affirming (1909; D. C.) 169 Fed. 217, the tug had not slowed down till she was about 600 feet from the bridge. She had then drifted with the tide, and when she was about 200 feet from the bridge, the draw was opened. One of the tows, a barge lashed alongside, struck the trestle portion of the bridge, the result being that the lines connecting it with the tug parted, and it swung around into the draw. The other tow, a schooner, the hawser

A tug when 1,500 feet from a drawbridge received the signal denoting that it was not ready for opening, but continued to approach it in such a manner that she was unable to avoid a collision with it.7a

The liability of a tug was held to be inferable from evidence to the effect that, after having passed through the draw of one railroad bridge, she gave two signals indicative of her desire to pass through another railroad bridge; that, though she received no reply to

having been previously cast off, then ran into the barge, and, swinging around with the tide, collided with the trestle. The trial judge found that the draw was open in time, and that the tow would have passed through safely, but for the fact that the tug had kept too far to the eastward, as the result of overestimating the set of the tide. The court said: "We think she was more at fault for not signaling sooner and stopping. If negligent in both or either of these respects, it is no defense to her that the bridge tender was also at fault." The court refused to accept the contention that a rule may be laid down that tugs which get no reply from a bridge tender, to a signal, have a right to proceed on their own assumption that the draw will be open.

7a Donovan v. New York C. R. Co. (1926; D. C.) 16 F. (2d) 611. The court said: "The tug in going ahead after it received a proper signal warning it that the bridge was not opening took the risk of the consequences which ensued. It was not misled by the absence of signals. There is nothing in the statute or regulations which justifies a vessel, which has received a warning to the contrary, to proceed upon the assurance that the bridge will open at once in response to a signal, without reference to the safety of approaching trains and other surrounding circumstances."

To The Radnor (1926; C. C. A. 4th) 14 F. (2d) 263. The court said: "There was nothing in the waters, surroundings, or the condition of the weather, wind, or tide that made it an especially hazardous undertaking to take this tow, in the broad daytime, down the river and through the draws constructed for the purpose, with comparative safety. Of course, promptness and good seamanship were re

either signal, she continued to drift down the river with the wind and tide to a point about 165 feet from the bridge; that she then sounded danger signals to which no response was made; and that a collision between the barge under towage and the bridge quickly ensued.b

The tug master proceeded to pass a bridge on the erroneous assumption that a signal given by the bridge tender was applicable to his own tow.s

The mast of a vessel collided on a quired to avoid unnecessary risks incident to the undertaking. Immediately upon the tug's failure to receive a reply of two whistles to its three whistles requesting passage through the draw, it was admonished that it was proceeding, with the draw closed, into a position of imminent danger; and when apparently a second request of three whistles was promptly sounded, with no response, the situation became more acute, as the tow was again warned that the draw was closed, and that no permission to pass had been secured. The danger from such situation was accentuated, and became more serious each moment, as the time was comparatively short within which the collision must occur, unless the tug and tow discontinued their progress down the river. To have waited under these circumstances until within a barge length of the bridge, with the draw closed, without giving danger signals earlier, or at least stopping, reversing, and putting its engines full speed astern, was manifest negligence. Anything done at that time was too late to prevent the accident. The bridge tender could not then have done anything, assuming the danger signals to have been heard, to change the conditions that would not probably have increased the hazards generally, and of course to stop, reverse, and back the tug's engines at that time was too late to materially affect the tow's headway in time to avoid the collision. . . . The two bridges were a third of a mile apart, and there was no sufficient excuse for the tug's navigating to within a barge length of the lower bridge without knowing whether the draw was to be opened or not, nor should it have omitted taking timely precautions to keep its tow under control." 8 In The Brimstone (1925; D. C.) 3

clear night with an incompletely raised leaf of a bascule bridge, towards which the tug master continued to haul her, after he had received a signal that it was ready to be opened immediately, although he knew from previous experience that it was not functioning properly, and the position of the lights upon it showed him, while there was still time to stop the vessel, that the leaf was not fully open.9

The tug master, after having been notified, in answer to his signal given about a quarter of a mile from a bridge, that it must be kept closed for an approaching train, continued to move the tow towards the bridge, and, F. (2d) 1011, a motor launch, having a barge lashed alongside it, when about 500 feet from the bridge in question, gave the proper signals, but received no response, and, when about 150 feet from the bridge, repeated them. Before the second signals were given, a tug without a tow had overtaken the launch, and, after having blown three blasts and heard two in response, had passed through the draw. The launch then proceeded, the result being that its mast was broken by striking the draw, and fell on the barge. For the damage thus inflicted the launch was held liable, on the ground that its master was not warranted in assuming that the two blasts heard after those blown by the tug were in response to his second signals, and were to be understood as signals for both vessels to pass through. He should have made sure that the draw was open for him as well as for the tug.

9 The No. 9 (1919; D. C.) 258 Fed. 693. The court observed that prudent navigation and reasonable care required the tug master "to anticipate the probable failure of the draw to open, or its failure to open sufficiently for the passage of the tug and tow, and to take such timely measures of precaution as would enable him to protect his tow, should either of those events occur. Could the danger have been avoided by timely measures of precaution? This is hardly open to question. The lights of the bridge, indicating the position of the draw, were visible to those in charge of the tug, when she was at least 1,500

when he found that it was not going to be opened, allowed the tow to sag against the center pier, the result being that the headline parted, and it became necessary to cut the stern one, in order to obviate a more serious disaster.10

The mainmast of a vessel struck against the incompletely raised lift of a drawbridge, owing to the concurrent negligence of the tug master in failing to observe the mast, and of the bridge tender in failing to open the bridge on receiving the customary signal.11

A collision of the tow with the pier of a drawbridge was caused by a culpable miscalculation on the part of feet away, and thereafter remained in full view. There was then, and for some time thereafter, ample opportunity for those in charge of the tug to take the protective measure shown by the evidence to have been frequently taken by tugs with a tow in approaching this bridge, namely, to turn around. Neither this nor any other sufficient precaution was taken. The tug elected to proceed, and did proceed with her tow into a position of danger before the bridge lights showed a sufficient clearance through the draw. for the tow."

10 The Archie Crossman (1922; D. C.) 282 Fed. 321. For damage caused to the cabin of the barge by a projection on the bridge pier, the tug was held liable on grounds thus stated: "In the absence of any testimony showing that the weakness in fastening the barge to the tug was the fault of the barge in any way, the tug must be held responsible, both for the lines used and for the sufficiency of the fastening, when it became apparent that contact with the bridge was necessary. The tug was bound to choose between holding back at such a point that the barge could be kept from contact with the bridge, or taking care of the barge when using the center pier of the bridge as a buffer or temporary landing place, while waiting for the bridge to open."

11 Great Lakes Towing Co. v. Masaba S. S. Co. (1916) 150 C. C. A. 459, 237 Fed. 577. The opinion is devoted almost entirely to a consideration of the bridge owner's liability.