On the other hand cases may arise in which the tow alone and not the tug is liable for injury to a third vessel or person. Thus in Albina Ferry Co. v. Imperial and S. G. Reed, 38 Fed. 614, the tug S. G. Reed had in tow the ship Imperial. The ferry boat Veto No. 2 was operated on a wire cable. The Imperial struck the cable, causing the ferry boat to sustain some damage. The tug was employed by the pilot of the Imperial for the purpose of towing the vessel and at the time of the collision was in the control and service of the ship. There was no evidence of any fault on the part of the tug or of any one employed on her. The Court said:
Under these circumstances the steamboat (i.e., tug) and the ship constitute but one vessel and that vessel was the ship. The tug was the mere servant of the tow, and both were under the control and direction of the pilot in charge of the latter. Admitting for a moment that a wrong has been committed, the owners of the Imperial, through their agent, the pilot in charge, are the wrongdoers, and their vessel is alone liable therefor. The owner of the Reed did not participate in the supposed wrong, neither by itself nor by its servants. As well say that the wrong of a person who recklessly rides another down in a public thoroughfare is the wrong of the liveryman from whom he hired the horse.
It is not denied that there may be and have been cases in which both tug and tow are liable for the damage sustained by a collision. But in such case both participate in the management of the vessel, and the negligence of misconduct causing the same.
A case in which both tug and tow were held liable is that of the Civilta and the steam tug Restless, 13 Otto 699. In this case the tow had on board a pilot and the tug was subject to his orders. The libellant's schooner was struck by the hawser, then by the tow. The court said that the tow and tug were, in law, one vessel, and the question was, which one? It was held:
The tug furnished the motive power for herself and the ship. Both vessels were under the general orders of the pilot on the ship, but it is expressly found as a fact that the tug actually received no orders from him. Being on the ship, which was two hundred seventy feet astern of the tug, it is not to be presumed that he was to do more than direct the general course to be taken by the ship in getting to her place of destination. The details of the immediate navigation of the tug, with reference to approaching vessels, must necessarily have been left to a great extent to those on board of her. She was where she would ordinarily see an object ahead before those on the ship could, and having all the motive power of the combined vessels under her own control, she was in a situation to act promptly and do what was required under the circumstances.
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We do not entertain a doubt that, situated as the tug was, in the night, so far away from the ship, it was her duty to do what was required by the law of a vessel under steam, to keep herself and the ship out of the way of an approaching vessel, particularly if the pilot of the ship did not assume actual control for the time being of the navigation of the two vessels.
Such being the case, we think it clear both vessels were in fault.
A decree was accordingly given against both the ship and the tug and the damage apportioned one-half to each with the provision that if either of the vessels should prove insufficient to pay its share the residue might be collected from the other.