No contribution in general average can be had against a steam
tug for the casting off and abandonment, by her master, of her tow
of barges, with the intention and the effect of saving the tug.
Page 167 U. S. 600
The case is stated in the opinion.
MR. JUSTICE GRAY, delivered the opinion of the Court.
Two libels in admiralty in the District Court of the United
States for the Eastern District of Michigan against the propeller
J. P. Donaldson
by the owners of the barges
and George W. Wesley,
for the loss of
the barges, having been consolidated and dismissed in that court,
and its decree having been reversed by the circuit court upon the
ground that the libelants were entitled to recover against the
propeller for the loss of the barges as a general average
contribution, and a decree accordingly having been rendered for the
libelants, and the causes having been taken by appeal from the
circuit court to the circuit court of appeals, that court, desiring
the instruction of this Court as to the right of the owners of the
barges to recover against the propeller upon the principles of
general average contribution, certified to this Court the question
whether they could so recover upon the following facts:
"The J. P. Donaldson
was towing the said barges
and George W. Wesley
from Buffalo, New
York, to Bay City, Michigan, having no other connection with them
than that she was to tow them, and to receive for her services a
portion of freight which the said barges would earn on the trip
according to the custom and usage which prevails upon the Great
Lakes. By a violent storm, and, without negligence on the part of
the J. P. Donaldson,
she, with her tow, was driven on a
lee shore, and all were in imminent, if not certain, peril of being
blown ashore and lost. The J. P. Donaldson
Page 167 U. S. 601
against the storm to the last moment she could with safety to
herself, and then, in order to prevent her from going ashore and
being lost, her master, after first giving notice with her steam
whistle of his intention to do so, and without negligence on his
part, cut the towline connecting said barges to her, and the said
barges were driven on shore, and were wrecked and lost, and the
J. P. Donaldson,
by reason of being thus disincumbered of
her tow, was enabled to reach a port of safety."
By the order of that court, there were transmitted to this
Court, together with the above certificate, copies of the pleadings
and decrees, and of the opinions of the district and circuit
courts, reported in 19 F. 264 and 21 F. 671.
This case presents a novel question in the law of general
average, which, briefly stated, is whether a contribution in
general average can be had against a steam tug for the casting off
and abandonment, by her master, of her tow of barges with the
intention, and with the effect, of saving the tug.
The decision of this Court in the recent case of Ralli v.
Troop, 157 U. S. 386
the reasons upon which that decision was based, go far towards
determining this question.
In that case, upon full review of the authorities, it was held
that the right of contribution in general average, whether
considered as resting upon natural justice, or upon implied
contract, or upon a rule of the maritime law known to and binding
upon all owners of ships and cargoes, could only arise out of the
exercise of the power of the master, or of one occupying his place,
as the agent by necessity of the owners of ship and cargo, and
charged by law with the duty, in case of emergency, of sacrificing
part of the property for the safety of the rest. This Court there
"Whether the master is considered as acting under an implied
contract between the owners of the vessel and the shippers of the
cargo, or as the agent of all from the necessity of the case, or as
exercising a power and duty imposed upon him by the law as incident
to his office -- whatever may be considered the source of his
authority -- the power and the duty of determining what part of the
common adventure shall be sacrificed for the safety of
Page 167 U. S. 602
the rest, and when and how the sacrifice shall be made,
appertain to the master of the vessel, magister navis,
the person entrusted with the command and safety of the common
adventure and of all the interests comprised therein, for the
benefit of all concerned or to someone who, by the maritime law,
acts under him, or succeeds to his authority."
157 U.S. 157 U. S.
"There can be no general average unless there has been a
voluntary and successful sacrifice of part of the maritime
adventure, made for the benefit of the whole adventure, and for no
other purpose, and by order of the owners of all the interests
included in the common adventure or the authorized representative
of all of them. The safety of any property, on land or water, not
included in that adventure can neither be an object of the
sacrifice nor a subject of the contribution."
157 U.S. 157 U. S. 403
It was likewise shown that by the general law, unless modified by
local statute or custom, the right of contribution is limited to
the particular ship and cargo, and the sacrifice of one ship for
the safety of another does not give rise to any claim of general
average. 157 U.S. 157 U. S. 404
157 U. S. 406
157 U. S.
The question, then, is whether the steam tug and her tow of
barges were so connected by the contract of towage as to make the
tug and the tow, while navigated under and in accordance with that
contract, a single maritime adventure; to entrust the master of the
tug with the authority, in case of unforeseen emergency, of
sacrificing any of the barges, or the whole or part of the cargo of
any of them, for the safety of the rest of the barges and their
cargoes, or of the tug, or of her cargo, if any, and, if such
safety is thereby secured, to give the owners of the interest
sacrificed a right of contribution in general average against the
interests saved, or their owners.
While the tug is performing her contract of towing the barges,
they may indeed be regarded as part of herself in the sense that
her master is bound to use due care to provide for their safety as
well as her own, and to avoid collision, either of them or of
herself, with other vessels. The Syracuse,
9 Wall. 672, 76 U. S.
-676; The Civilta, 103 U.
, 103 U. S.
Page 167 U. S. 603
But the barges in tow are by no means put under the control of
the master of the tug to the same extent as the tug herself and the
cargo, if any, on board of her.
A general ship carrying goods for hire, whether employed in
internal, in coasting, or in foreign commerce, is a common carrier,
and the ship and her owners, in the absence of a valid agreement to
the contrary, are liable to the owners of the goods carried as
insurers against all losses excepting only such irresistible causes
as the act of God and public enemies. Liverpool Steam Co. v.
Phenix Ins. Co., 129 U. S. 397
129 U. S. 437
But a tug and her owners are subject to no such liability to the
owners of the vessels towed or of the cargoes on board of them. The
owners of those vessels or cargoes cannot maintain any action for
the loss of either against the tug or her owners without proving
negligence on her part. As was said by Mr. Justice Strong, and
repeated by the present CHIEF JUSTICE:
"An engagement to tow does not impose either an obligation to
insure or the liability of common carriers. The burden is always
upon him who alleges the breach of such a contract to show either
that there has been no attempt at performance or that there has
been negligence or unskillfulness to his injury in the performance.
Unlike the case of common carriers, damage sustained by the tow
does not ordinarily raise a presumption that the tug has been in
fault. The contract requires no more than that he who undertakes to
tow shall carry out his undertaking with that degree of caution and
skill which prudent navigators usually employ in similar
Wall. 406, 81 U. S. 414
The Burlington, 137 U. S. 386
137 U. S. 391
See also The L. P. Dayton, 120 U.
, 120 U. S.
The master of a vessel is appointed by her owners and is their
agent, and they are responsible for injuries caused to third
persons by his negligence in navigating the vessel. The master of
the tug is appointed by and is the agent of the owners of the tug.
He is not appointed by the owners of the vessels towed. And if, by
mismanagement of the tug without any negligence on the part of the
tow, the tow is brought into collision with another vessel, the
tug, and not
Page 167 U. S. 604
the tow, is responsible. The John
21 How. 184; The
24 How. 110. As was said by this Court in
"By employing a tug to transport their vessel from one point to
another, the owners of the tow do not necessarily constitute the
master and crew of the tug their agents in performing the service.
They neither appoint the master of the tug, nor ship the crew, nor
can they displace either the one or the other. Their contract for
the service, even though it was negotiated with the master, is in
legal contemplation made with the owners of the vessel, and the
master of the tug, notwithstanding the contract was negotiated with
him, continues to be the agent of the owners of his own vessel, and
they are responsible for his acts in her navigation."
24 How. 65 U. S.
In Transportation Line v. Hope, 95 U. S.
, in which the owner of a barge maintained an action
against the owner of a tug for negligence of the master of the tug
by which the barge was totally lost, this Court, while holding that
the tug "had the supreme control of the barge, so far as it was
necessary to enable it to fulfill its contract to tow the barge,"
recognized that the tug
"did not occupy the position of a common carrier, and did not
have that exclusive control of the barge which that relation would
imply. It did not employ or pay the master and the men in charge of
her, nor did it exercise that internal control of her cargo, its
storage, its protection, and the like, which belonged to a
95 U.S. 95 U. S.
It is solely for the purpose of performing the contract of
towage that the vessels towed are put under the control and
management of the master of the tug. In all other respects and for
all other purposes, they remain under the control of their
respective masters, and in case of unforeseen emergency, it is upon
the master of each that the duty rests of determining what shall be
done for the safety of his vessel and of her cargo. If the question
arises whether it is safer for one of the barges to continue in tow
or to cut loose and anchor, the decision of that question
ultimately belongs to her own master, and not to the master of the
tug. And if the question presented is either whether the barge
should be run
Page 167 U. S. 605
ashore for the purpose of saving her cargo or else whether a
part or the whole of the cargo of the barge should be sacrificed in
order to save the rest of her cargo, or the barge herself, the
decision of the question whether such stranding or jettison should
or should not be made is within the exclusive control of the master
of the particular barge, and in no degree under the control of the
master of the tug, and, in either case, any right of contribution
in general average cannot extend beyond that barge and her
The suggestion of the counsel for the libelants that the barges
had no means of self-propulsion and were powerless for any purpose
of navigation is unsupported by the statement of facts in the
certificate of the circuit court of appeals, and is inconsistent
with the allegations of the libelants themselves. Each of the
libels alleged that the barge was "in every respect well manned,
tackled, appareled, and appointed." One of the libels alleged that
the George W. Wesley
was a schooner barge, and on the
night before the loss, "carried her mainsail, foresail, and
staysail," and that early in the morning, "said sails were taken
in" because "the sails would not draw in the course that they were
then running." And the other libel alleged that on the day after
the loss, the master and crew of the Eldorado
board of her and proceeded to strip the wreck, "and save from it
all that could be saved of her sails, rigging, etc." And each
answer alleged that after the storm began, the master of the tug
signaled the barges "to make sail, and get their anchors
The master of the tug, having no authority to decide, as between
a barge and her cargo, what part shall be sacrificed for the safety
of the rest, and thereby to subject what is saved to contribute in
general average for what is lost, can surely have no greater
authority, by abandoning all the barges with their cargoes, to
subject the tug to a general average contribution.
The fact that the sum to be paid to the tug for towing each
barge was measured by a certain proportion of the freight to be
earned by that barge is immaterial. It did not create a partnership
between the owners of the tug and the owners of
Page 167 U. S. 606
the barges. Meehan v. Valentine, 145 U.
. Nor could it have the effect of combining the
tug and the barges into a single maritime adventure, within the
scope of the law of general average.
For the reasons above stated, this Court concurs in the opinion
expressed in this case by MR. JUSTICE BROWN, when district judge,
"the law of general average is confined to those cases wherein a
voluntary sacrifice is made of some portion of the ship or cargo
for the benefit of the residue, and that it has no application to a
contract of towage."
19 F. 272.
Question certified answered in the negative.
MR. JUSTICE BROWN took no part in this decision.