are clearly and directly in point. They were both decided after 1854, and they both decide, as I understand them, that where the procedure is under the 14 & 15 Vict. c. 99, the question still is whether under the circumstances a court of equity would grant discovery, and according to whether a court of equity would or would not grant discovery, a court of law will or will not order inspection under that section. The contention here on the part of the plaintiff is exactly the converse of that which the courts have held untenable in the series of cases cited by my brother Brett. In those it was sought to attach to the later procedure the limited consequences of the earlier statute; here it is sought to enlarge the limited consequences of the earlier statute by the large ones attached to a later procedure which has not been followed. Both contentions appear to me to be unsound, and I conceive myself to be acting in accordance with the principle of the decided cases in so holding. If then, which remains to be considered, a court of equity would not have granted discovery supposing the plaintiff to have filed a bill for it in this case, I think that my brother Bramwell had no power to make this order, and that it must be rescinded. Now it seems that such a bill would have been demurrable in equity, on the ground that the action was for libel, and that the remedy of the plaintiff was, or at least might have been, by indictment. As a general rule there is no doubt that a bill showing on the face of it that the discovery will subject the defendant to criminal proceedings can be demurred to, and it is clear that if the plaintiff here had actually indicted the defendant, a bill for discovery of the alleged libellous letter would have been dismissed. It is indeed laid down by Mr. Hare in his work on Discovery, p. 116, that "it is no objection to a bill for discovery, that the matter in question might have been the subject of an indictment or information," and this passage was cited with approbation by Mr. Justice Willes in Bartlett v. Lewis (ubi sup.). But Mr. Justice Story, noticing this proposition of Mr. Hare, lays it down with equal clearness that a court of equity will not grant discovery when in a civil action the facts disclosed might subject the party disclosing them to penal consequences: (Story on Equity Jurisprudence, s. 1494, and the note thereto). And he says that the case cited by Mr. Hare in support of his proposition, Shackell v. Macaulay, in the House of Lords (1 Bligh, N. S. 97), does not support the proposition for which it was cited by Mr. Hare. Nor does it. On the contrary, Sir John Leach in Thorpe v. Macaulay (5 Madd. 229), Lord Langdale in Glynn v. Houston (1 Keen, 329), and Lord Eldon in Cartwright v. Green (8 Vesey, 408), the case on which Mr. Kelly placed great reliance in arguing this rule, all lay down the law, as far as the personal discovery by the defendant himself is concerned, in terms which warrant Mr. Kelly's objection. In Shackell v. Macaulay, as in Thorpe v. Macaulay, a commission to examine witnesses had been asked for by the prayer of the bill, as well as personal discovery by the defendant, and in each of those cases Sir John Leach and Lord Eldon, and the House of Lords affirming him, held that a court of equity would assist the proof of the truth of a libel by a commission for the examination of witnesses, for which in those times it was usual to have recourse to a court of equity. The ob [C. P. servations of Lord Eldon and Sir John Leach which appear to be in favour of Mr. Hare's proposition will, if their judgments be looked at carefully, be found to have reference to that portion of the bills in those two suits respectively which asked for a commission, and as to which portions both those judges decided in favour of the plaintiff. There is, however, no case, as far as I have been able to ascertain, in which a defendant in equity has ever been himself compelled to answer as to matters which will expose him to an indictment for libel; and the cases I have cited are strong authorities to show that a court of equity would not compel him. I think, therefore, it must be taken, in spite of some expressions both of judges and text writers apparently to the contrary, that, if the power of Baron Bramwell was limited by the practice of the courts of equity, he could not compel the female defendant to discover this letter. I have already said that I think it was so limited, and I am therefore of opinion that this rule must be made absolute. I have also said that I am giving effect to a useless and technical objection; for, speaking for myself, I am clearly of opinion that, if the procedure of the 50th section of Common Law Procedure Act 1854 is now followed, the plaintiff ought to obtain inspection of that which I feel bound, in the present state of things, to say I think he cannot; and I entirely concur in what my brother Brett has written on that point. But where statutes seem clear I will not, unless I am bound by authority, confuse them by ingenious and subtle constructions. There are two statutes with different procedures and different results. Both are in force, and cases may arise under each. Each is to be construed with reference to, no doubt, but yet independently of, the other. This case appears to me to be a case under the first statute, and I am therefore of opinion that the learned Baron exceeded his power, and that his order must be rescinded. Rule absolute. Attorneys for the plaintiff: A. Hendriks. Attorneys for the defendants: Frederick Taylor, Old Burlington-street. Friday, Jan. 15. BALMAINE v. LICKFOLD. Costs-Recovery after amendment for non-joinder of defendants-C. L. P. Act 1852, s. 38-Payment between issue of original and amended writs-30 & 31 Vict. c. 142, s. 5. The plaintiff issued a writ in an action for 3271. against L., who afterwards, but before the service of the writ, paid to the plaintiff 3191. in respect of the claim. L. then pleaded the non-joinder of two other defendants, and the writ and declaration were amended under sect. 38, C. L. P. Act 1852, by the addition of the suggested names. The action proceeded against the three defendants, and was eventually referred. The arbitrator awarded that there was a balance of about 31. still due to the plaintiff from the defendants, having credited the latter with the 3191. paid by L., and which was pleaded as payment before action. He refused to certify for costs. Held, that the plaintiff had recovered in the action only the sum awarded, and that he was not entitled, as against L., to consider the 3191. paid after the issuing of the writ as recovered in the action, so as to entitle him to costs against L., but came within 30 & 31 Vict. cap. 142, s. 5. In this action the plaintiff originally sued out a writ, and declared against Lickfold only, upon a contract under which the plaintiff had supplied coals, in respect of non-payment for the same. After the issuing of the writ, but before its service, Lickfold sent a cheque for 3191. to the plaintiff's place of business, where it was received by him on 12th Feb., and accepted pro tanto in discharge of the debt. The writ, however, which had been issued on 11th Feb., was subsequently served on Lickfold, and the claim indorsed upon it was 3271. Lickfold pleaded in abatement the non-joinder as defendants of two others, Hall and Higley, whereupon on 24th March an amended writ was issued and amended declaration delivered under sect. 38 of the Common Law Procedure Act, 1852, wherein the other two defendants were charged as co-contractors with Lickfold. They pleaded, except as to 11. 68. 11d. paid into court, never indebted, and payment. At the trial at Maidstone, the cause was referred by Bramwell, B., to an arbitrator, who was empowered to determine what was to be done, and was to be able to amend and certify. He did amend the plea of payment by adding that the payment had been made after the writ had been issued against Lickfold, and before the amendment under the Common Law Procedure Act 1852, which was the commencement of the proceedings against the other defendants. Costs of the cause to be taxed, and costs of the reference and award to be taxed, and to abide the event of the award. The arbitrator found that the defendants did satisfy the plaintiff's claim by payment before action to the amount of 3191. 38. 8d., but that they had not done so as to the balance, which, after giving credit for the sum paid into court, was 31. 08. 4d. He therefore directed that the verdict entered for the plaintiff should stand, but that the amount should be reduced to 31. 08. 4d. He refused to certify, and the master under these circumstances refused to tax the plaintiff's costs against the defendants, considering that he was deprived of his costs by the County Court Act 1867 (30 & 31 Vict. c. 142, s. 5), having recovered a sum of less than 20l. in an action of contract. A rule was moved for and obtained by Bennett, calling upon the defendants to show cause why the plaintiff should not be allowed to tax his costs as against Lickfold, including the costs of the reference and award. J. Brown, Q.C. and Lucius Kelly, showed cause. -The plaintiff has no right to any costs, the arbitrator having found that there was only about 31. due from the defendants, and in the exercise of his discretion having refused to certify. The Common Law Procedure Act, 1852, sect. 38, proIvides that when a writ and declaration has been amended after a plea in abatement for non-joinder of defendants, the date of such amendment is to be considered as the commencement of the action. The County Court Act clearly disentitles the plaintiff to costs, for the sum of 3191. paid by Lickfold's cheque was in no sense recovered in the action. All that was recovered in the action was the amount paid into court, viz., 1l. 11s. 6d., plus the amount awarded, in all 4l. 11s. 10d. T. R. Bennett.-The plaintiff here comes under the provisions of the Statute of Gloucester, and has had a recovery in the action. He is there {C, P. fore entitled to his costs primâ facie as having been successful, and that right has not been taken away as regards Lickfold by the County Court Act. It is to be noticed that section 39 of the Common Law Procedure Act 1852 clearly contemplates there being a different judgment against the different defendants, that is, against the original defendants on the one hand, and those named in the plea of abatement on the other, against whom the action, after an amendment of the writ, proceeded: (See Cazeneau v. Morrice, 25 L. J. 126, Q. B.) It was there stated that the plaintiff could not have costs under the Statute of Gloucester, because he was entitled to no damages against two of the defendants, a verdict having been found against them on a joint liability with the original defendant, and the latter having paid the money into court. But it would seem from this that, having obtained a judgment, if it had entitled him to any damages against any of the defendants, it would also have entitled him to costs against such. That being so, a reference to section 38, Common Law Procedure Act 1852, will show that the date of the amendment is to be considered as the commencement of the action only as between the person or persons named in the plea of abatement and the plaintiff; so that the section does not affect the original defendant at all, and the plaintiff is therefore right in saying here that the commencement of the action against Lickfold was at the date of the original writ; and if so, he has recovered against Lickfold a sufficient sum to take him out of sect. 5 of 30 & 31 Vict. c. 142. The plea of payment was amended by the arbitrator, so that he must have held that the payment by Lickfold was not before action, as, but for the amendment, it would appear upon the pleadings to have been. The 68th section of the Common Law Procedure Act 1852 provides that a defence arising after the commencement of any action shall be pleaded according to the fact; and if it be not specified, it is deemed to be a plea of matter arising before action. I say, therefore, that as regards Lickfold this was a payment after action, and the plaintiff has recovered the amount in the action sufficient to entitle him to his costs, and the question of discretion as to certifying does not arise. The plaintiff could not have sued in the County Court, and he cannot be deprived of his right to recover and his right to the costs of the recovery, by a part payment after action. Lord COLERIDGE, C. J.-I am of opinion that this rule must be discharged. The action was originally brought by the plaintiff against one of the present defendants, G. Lickfold, for 3271. for coals supplied. It appears that on issuing the writ a cheque for 3197., sent on the same day by G. Lickfold, was accepted by the plaintiff pro tanto in payment. As soon as the writ was served, the defendant pleaded in abatement, suggesting the non-joinder of the two other defendants. That plea was accepted, and the writ amended and served against the three. The case came on for trial, and was referred to an arbitrator. awarded that, the plea of payment by the three defendants having been amended, the defendants had satisfied the plaintiff's claim as to 3197., but not as to 31. Os. 4d. But, thinking it to be inequitable that he should have gone on for this miserable sum, he refused to certify; and now Mr. Bennett says that the plaintiff ought, nevertheless, to have his costs. But the award says that the three de He fendants paid the sum of 3197.; and if that be so, the whole amount of 3231. 118. 10d. was not recovered in this action. The plea which merely alleged payment was amended by the arbitrator in accordance with the facts, and that having been done, the payment which was so pleaded by the amended plea was a payment by the three defendants before action. Upon this amended plea the arbitrator has found the issue in favour of the defendants; and, therefore, all that was recovered in the action was this sum of about 47., made up of the payment into court, and the balance of the claim awarded as remaining unpaid; so that the County Court Act of 1867 directly applies, and the arbitrator not having certified for his costs, the plaintiff is not entitled to them, because of the express provision in section 5 of that Act. It becomes unnecessary to discuss the question further as to the date of the commencement of the original action against Lickfold, because on the face of the award the action appears to be against the three defendants, and all that in that action the arbitrator awarded as recoverable was the sum I have mentioned. KEATING, J.-I am of the same opinion. The only action in which a judgment has been recovered is the one against all these three defendants, and the statute says that where in an action founded on contract the plaintiff shall recover a sum not exceeding 201., he shall not be entitled to any costs of suit nnless the judge certify. That seems to me to be this case, the award heing in favour of the plaintiff for a very small sum indeed. Whether Mr. Bennett could have successfully contended that the plaintiff was entitled as against Lickfold to the costs, perhaps amounting to 58., incurred previous to the amendment, we do not consider, for the rule was not moved for or granted upon that point, but only upon the point which we have decided against the plaintiff, viz., whether in the action he recovered an amount sufficient to take him out of the operation of the 5th section of the County Court Act 1867. GROVE, J.-In this case the plaintiff has obtained judgment against the defendants; but, apart from any consideration as to any previous rights he may have had, the arbitrator has found that in this action he ought only to have sued for about 31. That is the sum awarded by him accordingly, and no certificate for costs was granted. He has exercised his discretion upon the matter, for clearly the plaintiff could have no right to costs upon such a finding. DENMAN, J.-I am of the same opinion. I think that the case of Cazeneau v. Morrice (ubi sup.) is wholly inapplicable to the present case. Here the sole question that can be raised before us is, how much did the plaintiff recover by the award? In my judgment it was 31. 08. 4d., and we have nothing to do with any previous payments not made in the action dealt with by the award. That being so, the arbitrator refused to certify at the time, and we should be wrong to do so now. Rule discharged with costs. Attorney for the plaintiff, Wright, Victoria street. Attorney for the defendants, R. Hewlett, Essexstreet. [ADM. COURT OF ADMIRALTY. Reported by J. P. ASPINALL, Esq., Barrister-at-Law. Monday, Nov. 30, 1874. THE LEMINGTON. Collision-Ship wholly under control of charterers A ship chartered by her owners so that the whole -Proceeding in rem-Liability of the res. control and management of ship and crew is vested in the charterers, still remains liable in a proceeding in rem for damage done to another ship by the negligence of her crew, although they are the charterer's servants. THIS was a cause of collision instituted on behalf of the owners of the steamship Conservator against the steam wherry Lemington, and her owner intervening. The petition, so far as is material, was as follows: 1. At a little after 4 a.m., on the 23rd July 1874, the screw steamship Conservator, of 580 tons' register, was lying in the locks of the Tyne Dock, moored fore and aft to the quay. 2. At such time the above-named vessel Lemington drove against, and with her stern struck the Conservator on her starboard side, between the bridge and the fore rigging, and did her considerable damage. 3. The said collision was occasioned by the Lemington having been insufficiently and insecurely moored or fastened, and otherwise by the neglect of those in charge of her, to take proper measures for keeping her clear of the Conservator. The answer filed by the defendants alleged that the Lemington was a screw wherry of about forty tons, and was manned by a crew of two hands, one Joseph Forster being master, and one Edward Forster engineer; that the collision was occasioned by neglect of the dock master of the Tyne Dock in casting off the Lemington's mooring ropes and opening the sluices of the dock, and that the dock master was in charge under the Harbour, Docks, and Piers Clauses Act 1847, and so far as the Lemington was concerned, the collision was an inevitable accident; the second and sixth articles of the answer were as follows: 2. At the time of the said collision, and for some time previously, the Lemington was and had been let by the defendants to, and hired from the defendants, by the said Joseph Forster, for the purpose of carrying cargo on the river Tyne, under an agreement by which the said Joseph Forster agreed to and did pay to the defendants one-fifth part of the gross earnings of the said wherry, and all disbursements and expenses incurred and connected with the management, working, employment, and navigation of the said wherry were agreed to be and were paid by the said Joseph Forster, and the said Joseph Forster had absolute control over the management, working, employment, and voyages of the said wherry, and over the navigation of the said wherry during the said voyages; and the wherry was not in any way under the control of the defendants during the said letting and hiring, and the said Joseph Forster, in the said management, working, employment, and navigation acted on his own behalf as principal, and not in any way as agent or servant of the defendants in that behalf. 6. The Lemington was not under the management or control of the defendants, so as to render them liable for any loss or damage sustained by the plaintiffs in the said collision. The plaintiffs now moved the court to reject the second and sixth articles of the answer, upon the ground that they disclosed no ground of defence to the action, and were irrelevant. E. C. Clarkson, in support of the motion.-Assuming the facts stated in the second article of the answer to be true, the Lemington was in effect chartered to Joseph Forster so as to be actually demised to him for the time being. The question then arises, does a ship so chartered continue to be responsible for damage done negligently whilst she is in the possession of the charterer. I admit that the owners would not be personally responsible, but I submit that the demise of the ship does not take away the responsibility of the res. A maritime lien attaches to a ship for damage done through the negligence of those who are in charge of the ship, unless they are acting unlawfully or out of the scope of their authority. This lien cannot be displaced by means of chartering the ship, otherwise every owner would entirely avoid liability by demising his vessel to another person. Although this question has never been decided formally, Dr. Lushington has clearly intimated his opinion on it in The Ticonderoga (Swab. 215); that case was a cause of damage instituted against a vessel which was chartered to the French Government during the Crimean war, and by the terms of the charterparty she was bound to employ a particular tug for towage purposes, and the tug, whilst towing her, negligently brought her into collision with the plaintiff's vessel, and the owners of the Ticonderoga sought to contest the liability of their ship, upon the ground that the negligence was not that of those on board the Ticonderoga, but of the steamer attached to her, which was not in any sense her servant; Dr. Lushington there said: "Supposing a vessel is chartered so that the owners have divested themselves, for a pecuniary consideration, of all power, right, and authority over the vessel for a given time, and have left to the charterers the appointment of the master and crew, and suppose in that case the vessel had done damage and was proceeded against in this court-I will admit, for the purpose of argument, that the charterers and not the owners would be responsible elsewhere, although I give no opinion upon that point-but still I should say here to the parties who had received the damage, that they had by the maritime law of nations, a remedy against the ship itself;" and it was held that the Ticonderoga was liable for the acts of the tug. Again, in The Ruby Queen (Lush. 266), a yacht, doing damage through the negligence of the servants of a yachting agent in whose hands she had been placed for sale, was held liable in rem. Owners cannot divest their ships of liability by any voluntary acts of their own, and the possession of charterers is the possession of the owners for the purposes of liability for acts of negligence occurring in the ordinary course of the ship's employment. When a maritime lien once attaches to a ship, it cannot be got rid of by change of ownership; consequently, when the owners resume possession of their ship out of the hands of the charterers-as they had done for the purposes of this case by appearing as owners absolutely-they take it back subject to the lien which attaches to it. The charterers are nothing else but pro hâc vice owners, and their acts as owners bind the ship. The charterers must be in the position either of agents for the owners or of absolute owners for the time being, and in either case their acts will render the ship responsible. James P. Aspinall, for the defendants, in support of the answer.-It being admitted that the defendants would not be liable in an action in personam for the damage sustained by the plaintiffs, the only question is, whether their ship is liable in a proceeding in rem in respect of that damage. To give a right of proceeding in rem against the ship, as [ADM. apart from the right of proceeding in personam against the owners, the plaintiffs must have a maritime lien upon the ship for the damage done; otherwise the proceedings in rem would be a mere process of the court to enforce a personal liability which does not exist. It was decided in The Bold Buccleugh (7 Moore P. C. C. 267), that a ship damaging another in collision is subject in respect of that damage to a maritime lien, which travels with the thing into whosesoever possession it may come, but that decision only applies to cases where the lien has attached. In this case, I submit, that no lien has attached upon this ship. No lien attaches upon a vessel for damage done, unless that damage is done by the default of the persons who are at the time of the damage the owners or their servants, and so done that the owners would be personally responsible for what is done. A lien which has attached to a vessel before it comes into the possession of owners, no doubt continues whilst in their possession; but if damage be done whilst they are owners, their ship is only responsible if they themselves would be responsible in an action in personam. In The Druid (1 W. Rob. 392, 398), Dr. Lushington says: "Now in some cases it is obvious that a ship may be liable where the owners would not be personally responsible, as, for instance, in cases of lien upon a ship for seamen's wages or bottomry bonds, when the lien has been acquired before the existing owners made their purchase. Against such liabilities the purchasers must protect themselves by caution or by contract at the time of sale, as against the enforcement of the outstanding lien in a proceeding against the ship, in this court they would have no legal defence upon the plea that the existence of the lien was unknown to them at the time the purchase was effected. Again, it might possibly be that an innocent purchaser may be liable to have his ship arrested and sold for the payment of damages in a case where the former owners would have been responsible, and the damage was occasioned before the purchase was made; but upon this point I give no opinion whatever. In the case above mentioned, it is to be remembered that the liability must be assumed to have attached upon the ship prior to the time when the ownership rested in the existing owners. In all the causes of action which may arise from circumstances occurring during the ownership of the persons whose ship is proceeded against, I apprehend that no suit could ever be maintained against a ship where the owners were not themselves personally liable, or where their personal liability had not been given up, as in bottomry bonds, by taking a lien on the vessel. The liabilty of the ship, and the responsibility of the owners in such cases, are convertible terms. The ship is not liable if the owners are not responsible; and vice versa, no responsibility can attach upon the owners if the ship is exempt, and not liable to be proceeded against." The collision here complained of occurred during the ownership of the defendants, and it is conceded that they are not personally liable; hence it follows from The Druid that their ship is not liable. It is true that in the case of The Druid the master was acting illegally, as well as out of the scope of his authority; but in The Orient (3 Mar. Law Cas. O. S. 321) it was held that an agent for the completion and sale of a ship, who, acting out of the scope of his authority, had placed the ship into a certain position to assert his own right to foreshore, and had so damaged another vessel, was not the agent of the owners for that purpose, and did not by his act render the vessel liable; in that case there was no illegality; simply an authorised act of an agent, and yet the ship was not responsible, and clearly upon the ground that there was no personal responsibility on the part of the owners. The cases cited by the plaintiff cannot be taken as overruling the considered judgment in The Druid and the judgment in The Orient. Moreover, they are distinguishable upon two grounds: First, that they are really not decisions upon the point now under discussion; secondly, because they relate to cases in which the person doing the damage was an agent of the shipowner, whilst in the present case there was no such agency. The Ticonderoga (Swabey, 217) is not a decision in point; what was said in that case, as to ships in the hands of charterers, was entirely an obiter dictum, and had nothing to do with the decision which proceeded upon the ground that the shipowner, by entering into the charter-party, had undertaken voluntarily to employ as his servant, and to assist him in performing his contract, a tug named by the French Government, and that the ship was responsible for the negligence of that tug. But I submit that even that ground of decision is erroneous; the mere voluntary entering into an agreement, which obliges a shipowner to obey the orders of another person, will not render him responsible for the acts of that other person; the owner's ship chartered to the British Government as a transport, and bound to obey the orders of the officer in command of a transport fleet, is not responsible for damage done through obeying the orders of that officer: (Hodgkinson v. Fernie, 2 C. B., N. S., 415.) The Ticonderoga does not apply in any way to the present case,save in so far as it expresses an unnecessary opinion, and that opinion is in direct contradiction to the considered judgment in The Druid (ubi sup.) The Ruby Queen (Lush. 266) is wrong upon the same grounds, and, moreover, the question of liability in rem was not raised upon the pleadings, and only arose incidentally, and the court declined to entertain it at the hearing upon that ground. The charterers are not in any sense the agents of the shipowners, but they rather hold the position of independent contractors who undertake the whole management and working of the ship, free from the control of the owners; for such contractors the shipowners cannot be held responsible, even through their ship. In the case of towage contracts the general rule in this country is that the tow is responsible for the negligence of the tug, but that proceeds upon the ground that the tug remains during the performance of the service under the control of the master or pilot of the tug, and is obliged to obey his orders. But in a case where a tug is voluntarily employed by shipowners to tow their vessel under such cir cumstances that the tug has the absolute control over the navigation of both tug and tow, and in fact acted as both tug and pilot, I submit that the tow would not be liable for the negligence of the tug. In The American and The Syria (31 L. T. Rep. N. S. 42; 2 Asp. Mar. Law Cas. 350) it was held that a disabled steamship, towed by another in such a manner that the "governing power was wholly in the towing ship, was not liable for the negligence of the towing ship, and several American cases holding this doctrine were approved. In The Owners of the brig James Gray v. The Owners [ADM. of the ship John Fraser and the steamer General Clinch (21 Howard U. S. Sup. Ct. Rep. 184) it appeared that the brig was at anchor in harbour, and the ship coming into harbour in tow of the steam tug ran into her, and it was found that the collision was occasioned by the sole default of the steamer, and that the steamer was not under the control of the ship; the proceedings were in rem against the ship and steam tug. It is there said by the court: It is true that the John Fraser was the res, or thing which struck the James Gray, and did the damage. But the mere fact that one vessel strikes and damages another does not of itself make her liable for the injury; the collision must in some degree be occasioned by her fault. . . . And as this collision was forced upon the James Fraser by the controlling power and mismanagement of the steam tug, and not by any fault or negligence on her part, she ought not to be answerable for the consequences." In Sturgis v. Boyer (24 Howard, 110, 121), which was also a proceeding in rem, it appeared that a ship was negligently towed into a lighter by a tug, which had the sole control over her for the purpose of removing her from one part of a harbour to another, the crew of the ship not being on board; it is there said: "Cases arise, undoubtedly, where both the tow and 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 where 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 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 cas e supposed do not sustain towards those intrusted with the navigation of the vessel the relation of principal. But whenever the tug, under the charge of her own master and crew, and in the ordinary course of such 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 masters or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. . . . Vessels engaged in commerce are held liable for damage occasioned by collision, on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and, consequently, are held re |
