In admiralty, the evidence of all persons on board is admitted ex necessitate rei, unless the person is interested as part

of the freighting ship, in the other. If collision takes place between the side ship, thus firmly lashed, and another vessel, it is as directly attributable to the steamboat, and her officers and crew, as if the steamboat herself had come into collision with the other vessel. The towed ship is the passive instrument and means, by which the damage is done. But there is no difference, in this respect, between the condition of one of the side ships and a ship towed astern, except this; that on board the ship towed astern by means of a cable, something may and ought to be done by the master and crew, in steering, keeping watch, observing and obeying orders and signs, and if there be any want of care and skill in the performance of these duties, and damage ensue, then the case we have been considering does not exist; the damage is attributable to the master and crew of the towed ship, and they and their owners must sustain it." These cases are in direct variance with two decisions in the Circuit Court of the United States for the Eastern District of Pennsylvania. Smith v. The Creole, 2 Wallace, C. C. 485; and The Steam Tug Sampson, 3 Am. Law Register, 337. In both these cases the actions were in rem against the tugs, but the court held, that tugs were but servants of large vessels, and therefore were not responsible to third parties. In England the law is the same. In The Duke of Sussex, 1 W. Rob. 270, the action was in rem against the tug. It was set up in defence that at the time of the collision she was towing a vessel, and under the direction of a pilot on board such vessel. Dr. Lushington held, that if the orders of the pilot were obeyed, the owners of the vessel towed would not be responsible; but if not, they would be. And in The Gipsey King, 2 W. Rob. 537, where the action was brought against the vessel towed, he said: Now I have, upon former occasions, already expressed my opinion, that a vessel in charge of a licensed pilot, whilst in tow of a steam tug, is, under ordinary circumstances, to be considered as navigated by the pilot in charge. That if the course pursued by the steam tug is in conformity with his directions, and a collision takes place, the pilot is responsible, and not the owners of the vessel, or of the steam tug. If, on the contrary, the steamer disregarded the directions of the pilot, and the collision was occasioned by her misconduct, the owner of the ship would, in this case, be responsible, in this court, as for the acts of their servant; and they must seek their redress against the owners of the steam tug in some other form of action." See also, The Christina, 3 W. Rob. 27; The Kingston-By-Sea, 3 W. Rob. 152. In this case Dr. Lushington said, addressing the Trinity Masters: "It is well known, that, according to your rules, a steamer is always to be considered as having the wind free; and by the decisions in this court, a steamer towing another vessel is to be considered as in the service of the owners of the vessel she has in tow, and the owners of the vessel in tow are responsible for the acts of the steamer." It will thus be seen that by the Supreme Court of Massachusetts, and by Mr. Justice Sprague, the vessel is regarded as under the control of the tug, and the latter, therefore, is held liable, while, on the other hand, the tug is regarded as the servant of the vessel by the English Admiralty, and by the Circuit Court of the United States for the District of Pennsylvania.

It seems to be well settled that canal boats and barges in tow are considered as being under the control of the tug, and the latter, therefore, is liable. The John Counter, Vice Adm. Ct. Lower Canada, 18 Law Reporter, 553; The Express, 1 Blatchf. C. C. 365, overruling the same case in the District Court, Olcott, Adm. 258. See also, Steamboat New York v. Rea, 18 How. 223.

owner. And the admissions of the master are competent evidence against his owners; but admissions of the mate and crew are not, unless made at the time of the collision, so as to form part of the res gesta.2

It has been held that an action at common law for damages caused by a collision, will not affect the jurisdiction of the admiralty, and that the verdict of the jury upon the facts of the case will not be conclusive upon the judgment of the admiralty court.3 When a collision occurs on a river which serves as the boundary of two States, in order to determine in which State it took place, the middle of the river is considered as the boundary line.4

When a vessel is sunk by a collision, and subsequently raised by the owner of the colliding vessel and towed into port, the question has arisen whether the former owner is bound to take her, or whether he may recover damages as for a total loss. It has been held that the former owner is not obliged to take her back, after being raised, in an unrepaired state, but the point is still an open one whether she may be repaired and tendered back.5

1 The Catherine of Dover, 2 Hagg. Adm. 145, and cases cited in note, p. 149. 2 The Midlothian, 5 Eng. L. & Eq. 556. See also, The Enterprise, 2 Curtis, C. C. 317, 320. But such declarations or admissions will have but little weight in opposition to their deliberate testimony as to the facts. The Steamboat New Jersey, Olcott, Adm.

415.

3 The Ann & Mary, 2 W. Rob. 189, 190. See also, Souter v. Baymore, 7 Barr, 415, s. c. Knox v. The Ninetta, Crabbe, 534.

Myers v. Perry, 1 La. Ann. 372.

5 In The Columbus, 3 W. Rob. 158, the vessel was raised but not repaired, and notice given to the agent of the owner of the fact, with an intimation that the owner of the Columbus was ready to deliver up the same, and that he would not be responsible for any further damage or expense that might be incurred by her remaining unrepaired. Dr. Lushington said, that the principle of abandonment as applied to insurance cases, did not apply to cases of collision; that if a vessel is run into and partially damaged, the owner is bound to bring her into port if possible, but if she is sunk, it is not incumbent on the owner to go to any expense whatever for the purpose of raising her, and that if, when she was raised, he was obliged to receive her back, he was not bound to repair her, but might leave her lying in port. Under all the circumstances of the case, it was held that the libellant was entitled to recover the whole value of his vessel, and that the respondent was entitled to have the vessel. The court said the proper course for the parties to have pursued would have been "to have applied to the court, stating the circumstances in which the vessel was, and to have called upon the court to decree a sale of the vessel, and that the proceeds might be brought in to abide the result of the suit." Whether the owner of the colliding vessel could have repaired her and tendered her back, after she was raised, was not decided.

It is no defence to a suit for damages caused by a collision, that no loss would have been sustained if the injured vessel had been stronger.1

A question has arisen in regard to the right of a vessel to obstruct a navigable stream by means of a warp; and it has been held that a vessel has the right to use one, and to extend it across the entire channel, but on the approach of another vessel, it is the duty of the vessel using the warp to take notice of the approach of the other, and to lower the warp so as to give ample space in the ordinary travelled part of the channel for her to pass, and to give timely notice of the space so left, but it is not bound to slacken so as to leave the entire channel free, and the approaching vessel should take her course in the place pointed out, but she may go elsewhere under a bona fide belief that the water is deep enough, and if entangled in the warp may cut it, but the burden is on her to show in such a case that the proceeding was bona fide.2

In some of the States of this country, statutes have been passed regulating the manner in which steamboats should pass each other. In other States the usage of the river governs. The boat going with the current, generally is required to keep in the middle of the stream, while the ascending boat keeps close to either shore. Some courts, however, seem to pay but little regard to local usages.4

1 Inman v. Funk, 7 B. Mon. 538.

2 Potter v. Pettis, 2 R. I. 483.

3 Williamson v. Barrett, 13 How. 101; Goslee v. Shute, 18 How. 463; Jones v. Pitcher, 3 Stew. & P. 135; Myers v. Perry, 1 La. Ann. 372; Drew v. Steamboat Chesapeake, 2 Doug, Mich. 33; Steamboat Co. v. Whilldin, 4 Harring. Del. 228; Moore v. Moss, 14 Ill. 106; Rogers v. McCune, 19 Mo. 557; Sinnott v. Steamboat Dresden, 1 Newb. Adm. 474; Bates v. Steamboat Natchez, id. 489.

4 Wheeler v. The Eastern State, 2 Curtis, C. C. 141; The Clement, id. 363, 370.

SECTION VII.

OF THE CLAIM FOR DAMAGES FOR NON-DELIVERY OF THE GOODS OR

INJURY TO THEM.

If there be a refusal to deliver the goods, or a delivery to a wrong person, or damage to, or loss of the cargo, for which the ship is responsible, the next question is, Who may make the claim for the goods, or their value, or for compensation for damage, and sustain an action grounded upon it? The consignor has shipped the goods, but has shipped them to the consignee; and which of these parties should make the claim? There has been some conflict, and may yet be some uncertainty in respect to this question; but we think the general principles applicable to this question ought to be sufficient to decide it.

Thus, if goods are shipped by the order of A, and an unindorsed bill of lading is sent to him, and he nevertheless gets possession of the goods by stating to the captain that he is the owner, the ship-owner is responsible to one to whom an indorsed bill of lading is sent. But it has been held that if the first party, who gets possession of the goods in this way, does not know that an indorsed bill is sent to anybody else, the holder of the indorsed bill has no remedy against him.2 In this case the holder of the goods had an equitable title to them, but if a party has received the goods who has no title to them, both he, and the master who delivered them, should be responsible to him who has the title. But if an indorsed bill be sent, and the goods obtained under it, the master is not bound to respond for the goods to one to whom another indorsed bill was subsequently sent; but, on the contrary, if this other gets possession of the goods, the first consignee may bring trover against him for them.3

If goods are sent to a consignee, with an indorsed bill of

1 Brandt v. Bowlby, 2 B. & Ad. 932.

2 Coxe v. Harden, 4 East, 211.

8 Walley v. Montgomery, 3 East, 585.

lading, the property to be the consignee's on delivery, no question can be made but that he may sue for damages if the goods are injured. But it has been said that if they are to remain the consignor's property, being sent to the consignee only for sale, or if the consignee is for any purpose only the agent for the consignor, then the action must be in the consignor's name. We doubt this, however; and prefer the cases in which it is held that the consignee may bring the action in his own name. In the first place he has a special property in them, for his commissions, charges of entry, etc., and is certainly entitled to their possession; and if he be a mercantile agent for any purpose, he would, in almost every case, have some degree of special property in them, of this kind.

There are supposable cases, perhaps, in which goods may be sent to one who is so nakedly an agent of the owner for merely receiving what is brought in the condition in which it comes, that he can bring no action whatever in his own name, either for the goods themselves, or for any injury done to them. Generally, however, we should say the rule of law was, that a consignee with an indorsed bill, or any commercial agent authorized to take and hold possession of the goods, and deal with them as factor or in any such way, might bring an action in his own name, either for the goods themselves if they were withheld, or for compensation if they were delivered in an injured condition.1

1 It is laid down in some cases that the party who employs the carrier, is the one to sue. Davis v. James, 5 Burr. 2680; Moore v. Wilson, 1 T. R. 659; Freeman v. Birch, 1 Nev. & M. 420, 3 Q. B. 492. Where the property is to vest in the vendee on delivery to the carrier, the vendee must sue, because the vendor in making the contract with the carrier acted merely as the agent of the vendec. Dawes v. Peck, 8 T. R. 330; Coats v. Chaplin, 3 Q. B. 483; Dunlop v. Lambert, 6 Clark & F. 600. In Van Casteel v. Booker, 2 Exch. 691, 708, Parke, B., said: "The contract for carriage, which the bill of lading is, is made expressly with the consignor, and he no doubt might sue upon it, though in making it, he was merely acting as agent of and for the consignee. But if he made it as agent for and on behalf of the consignee, the consignee, also, as being the real principal, might sue if there had been a breach of the contract to carry." The bill of lading in this case made the goods deliverable to the consignor. But the cases generally adopt the rule that the party having the right of property and the right of possession is the one to sue, whether consignor or consignee. Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210, 216; Potter v. Lansing, 1 Johns. 215; Dawes v. Peck, 8 T. R. 330; Dutton v. Solomonson, 3 B. & P. 582; Brown v. Hodgson, 2 Camp. 36; Fragano v. Long, 4 B. & C. 219; Ludlow v. Bowne, 1 Johns. 1; De Wolf v. N. Y. F. Ins. Co. 20 Johns. 214; Price v. Powell, 3 Comst. 322; Everett v.