3. Compensation.—
The rate of compensation is determined by express contract, or in the absence of such contract by the customary rates prevailing in the port or locality, and in the absence of contract or custom by the fair value of the service rendered. Unless the service performed amounts to a case of salvage the compensation will not be determined by the rules governing salvage. Towage services are presumptively a maritime lien on the tow, and where the owners of the tow contend that the service was performed upon their personal credit, instead of upon that of the vessel, they must affirmatively establish that fact (Erastina, 50 Fed. 126). The lien for towage and pilotage is in general superior to all liens except those for salvage and seamen's wages and "preferred mortgages" given on American ships pursuant to the Merchant Marine Act of 1920 (see Appendix). Thus the Court in the Mystic, 30 Fed. 73, said:
I am of the opinion that this claim of towage is and should be considered a maritime lien upon the schooner. It is a conceded fact in this case (and if it were not, probably the court would take notice of the usual course of maritime business in this port) that all vessels entering and leaving the port of Chicago are required by the ordinances of this city to do so in the tow of a tug; and the usual course of business is for the tug to take vessels in tow at some point outside of the entrance to the harbor, and tow them to the dock to which they are consigned. This class of service takes the place of the labor of the crew, and I can see no reason why it is not to be treated as next in rank, if not in the same order of priority, as seamen's wages. It is probably, however, more analogous in the nature of the service to pilotage, as the use of the tug dispenses with the necessity of a pilot to bring the vessel into the harbor and take her to her dock; and by such analogy ought undoubtedly to be subordinate to the seamen's wages. The court must take notice of the fact, that by the introduction of steam even sailing vessels have become largely dependent upon tugs and towing vessels to take them into and out of harbors; and this is specially necessary in a harbor like that of this city where there are long devious channels which can only be threaded by the aid of a tug, or the almost impracticable means of warping.