Page:Federal Reporter, 1st Series, Volume 6.djvu/323

 THE ABTUBO. ���311 ���The R. B Forbes, Id. 328; The Rescue, 2 Sprague, 16; The Carolus, 2 Curtis, C. G. 69, �The duty of the tug not to injure the tow does not arise out of the towage contract, but is imposed by law. Phila. e Reading R. Co. v. Berh/, 14 How. 468; The Clarita d: Clara, 23 Wall. 1; The Quickstep, 9 Wall. 665; The Deer, 4 Ben. 352. �/. C. Dodge and W. W. Dodge, for the claimants, appel- lants. �The modern rule of the admiralt3', in cases of damage by a vessel in tow, is that the vessel whose master is actually guilty of negligence shall respond. The John Frazier, 21 How. 184; Sturges t. Boyer, 24 How. 122; The Maria Mar- tin, 12 Wall. 31; The Mabey e Cooper, 14 Wall. 204; Sproul V. Hemingway, 14 Pick. 1. They also referred to some of the cases eited by the libellants. �By the usage of the port the Nabby C. was under the ab- solute control of the master of the J. C. Cottingham, and his tug alone is responsible for his negligence. �Vessels coming to a port are bound by and presumed to know its usages. The libellants, therefore, knew that tbeir implied contract, if they had one, with the Nabby -C., was merely that she should assist and act under the orders of the other tug. Goodenow v. Tyler, 7 Mass. 36, 46; Dwight v. Whitney, 15 Pick. 179, 183; Benson v. Schneider, 7 Taunt. 272; Cuthbert v. Cumming, 10 Exch. 809; affirmed, 11 Exch. 405. �LowELL, 0. J. The careful collection of authorities by counsel will save me the necessity of citing them. They do not decide the precise question of this case. Two tugs, belong- ing to different owners, are sent to tow a vessel under a gen- eral order for towage given by her master through other per- sons. If the owners of the tug first spoken to undertook to do the work, or cause it to be done, they may be regarded as the sole contractors, bound by their undertaking to see that it is properly done, and they would be personally liable for any negligence, defect in machinery, disobedience of orders, or whatever else, on the part of either vessel, may have caused ��� �