of coming to anchor. So when a vessel is taking her berth, the time and manner of dropping the anchor are exclusively within the province of the pilot. And the manner of catting it, preparatory to bringing up for the purpose of taking a berth, is within the province of the pilot.3 In California, it has been held that it is the duty of the captain or of the harbor-master to select a proper berth, and not the pilot's. But it is there provided by statute that the pilot shall moor the ship safely where the master of the vessel, or the harbor-master, directs.5 The pilot is solely responsible for the measures adopted in getting the ship under way. Where a collision was caused by a vessel dragging her anchor, it was held to be the fault of the pilot alone that another anchor was not let go." It is the duty of the master to see that a good lookout is kept, although there is a pilot on board. If the master and crew have contributed to the accident by not keeping a sufficient lookout, so as to give the pilot the earliest possible information of an approaching vessel, although the pilot is also to blame, the owners of the vessel are not exempt from liability. If two vessels are entangled together, and they can be separated by cutting away part of the rigging, it is the duty of the master to give orders about it.10 So it has been held to be the duty of the master to have the top-gallant and main royal yards sent down, when this is necessary.11 whether the ship was to anchor or to proceed, was a matter which we think belonged exclusively to the pilot to decide." See also The Maria, 1 W. Rob. 95. 1 1 The George, 2 W. Rob. 386, 4 Notes of Cases, 161, 9 Jurist, 670; The Massachusetts, 1 W. Rob. 371. The Agricola, 2 W. Rob. 10. The Gipsey King, 2 W. Rob. 537. Compiled Laws of Cal., c. 8, § 34. The Northampton, 1 Spinks, Adm. 152. 8 The Diana, 1 W. Rob. 131, affirmed, Stuart v. Isemonger, 4 Moore, P. C. 11. The court said: "Although the directions of the pilot may be imperative upon them" (the master and crew), "as to the course the vessel is to pursue,[the management of the ship is still under the control of the master." S. P. Netherlands S. B. Co. v. Styles, Privy Council, 40 Eng. L. & Eq. 19. The Velasquez, 4 Moore, P. C. 426; The Iona, id. 336. 10 The Massachusetts, 1 W. Rob. 371. "The Christiana, 7 Notes of Cases, 2, affirmed, Hammond v. Rogers, 7 Moore, P. C. 160. When the pilot is remiss in his duty, it is difficult to determine with precision to what extent the master is bound to interfere. In one case, Dr. Lushington said: "It would be a most dangerous doctrine to hold, except under most extraordinary circumstances, that the master could be justified in interfering with the pilot in his proper vocation. If the two authorities could so clash, the danger would be materially augmented, and the interests of the owners, which are now protected both by the general principles of law, and specific enactments, from liability for the acts of the pilot, would be most severely prejudiced."1 But, "it is the duty of the master to observe the conduct of the pilot, and in the case of palpable incompetency, whether arising from intoxication, or ignorance, or any other cause, to interpose his authority for the preservation of the property of his employers."2 If the pilot goes below for a few minutes, leaving the second mate in command, with general directions how to steer, and a collision occurs partly through the fault of this officer, the ship is responsible.3 In one case it was held that if there was a hail from the lookout to alter the helm, and the pilot altered it without exercising his own judgment, the owners of the vessel would be liable. Speaking of interference on the part of the master or crew, Dr. Lushington said: "I should never go the length of saying that the mere suggesting to the pilot on the part of the master to take in this sail, or otherwise to keep as near the South Sand light, and vice versa, or to bring the ship up, was interfering, in the legal acceptation of the term, with the duties terference is of a different description. case the boatswain had called out to the of the pilot; illegal inIf, for example, in this men below to starboard 1 The Maria, 1 W. Rob. 95, 110. See also The Peerless, Lush. Adm. 32; The Admiral Boxer, Swabey, Adm. 196. In Netherlands Steamboat Co. v. Styles, 40 Eng. L. & Eq. 19, a case where, in consequence of a defective lookout, a barge was sunk by a swell caused by the steamer, the court said that if the lookout had informed the pilot of the barge, and he had insisted on going on, the owners would have been discharged. See also Pollok v. McAlpin, supra, p. 111, n. 4; The Christina, 3 W. Rob. 27, affirmed, Petley v. Catto, 6 Moore, P. C. 371. The Duke of Manchester, 2 W. Rob. 470, 480, affirmed on appeal, Shersby v. Hibbert, 6 Moore, P. C. 90. See also The Christiana, 7 Notes of Cases, 2; Hammond v. Rogers, 7 Moore, P. C. 160; The Joseph Harvey, 1 Rob. Adm. 306, 311. the helm, or if the master called out to port the helm, it would be interference, but it would not be interference to consult the pilot, or to suggest to him that the measures pursued were not proper, or that other measures would in all probability be attended with greater success." 1 SECTION II. HOW FAR OWNERS ARE RESPONSIBLE FOR THE TORTS OF PILOTS. The pilot is the servant of the owner. And if the owner is not obliged to take a pilot, the law only securing to him and appointing a sufficient pilot if he wishes one, it follows that the owner is responsible for injuries resulting from the default of the pilot.2 In England, it is provided by statute that no owner or master of any ship or vessel shall be answerable for any loss or damage which shall happen to any person or persons, by reason of any neglect, default, incompetency, or incapacity of a licensed pilot in charge of the vessel in pursuance of the provisions of the act.3 1 The Lochlibo, 3 W. Rob. 329, 1 Eng. L. & Eq. 651, 656. The Attorney-General v. Case, 3 Price, 302; The Neptune, 1 Dods. 467; The Transit, cited 1 W. Rob. 50; The Eden, 2 W. Rob. 442; Yates v. Brown, 8 Pick. 23; Bussy v. Donaldson, 4 Dall. 206; Williamson v. Price, 16 Mart. La. 399; Pilot Boat Washington v. The Saluda, U. S. D. C. So. Car., April, 1831; The Bark Lotty, Olcott, Adm. 329; Smith v. The Creole, 2 Wallace, C. C. 485; The Carolus, 2 Curtis, C. C. 69. In this case the vessel was going out of the harbor with a pilot on board who was employed by the owner of the vessel, and the vessel was held liable. Mr. Justice Curtis said: "If the pilot in charge of this ship had not been selected and employed by the owner, but had been received by the master in obedience to a requisition of law, enforced by a penalty, then, under the authority of Carruthers v. Sydebotham, 4 M. & S. 77; The Maria, 1 W. Rob. 95; and The Agricola, 2 id. 10, the owners would seem not to be liable for the misconduct or mismanagement of the pilot. But in this instance the pilot has testified that he was employed by the owner of the ship; and no such case is made by the answer as would compel an owner to receive a pilot on board under the statute laws of Massachusetts." 36 Geo. IV. c. 125, § 55. In England, it is well settled that if the pilot is alone in fault the owners are not liable. Bennet v. Moita, 7 Taunt. 258; Ritchie v. Bowsfield, id. 309; M'Intosh v. Slade, 6 B. & C. 657; The Christiana, 2 Hagg. Adm. 183; The Protector, 1 W. Rob. 45; The Maria, id. 95; The Duke of Sussex, id. 270; The Vernon, id. 316; The Agricola, 2 W. Rob. 10; The Fama, id. 184; The George, id. 386, 9 Jurist, 670, 4 Notes of Cases, 161; The Batavier, id. 407; The Atlas, id. 502; The Gipsey King, id. 357; The Temora, Lush. Adm. 17. It was formerly held, under this statute, that if there was a pilot on board, and there was a neglect in the navigation of the vessel, it was prima facie attributable to him. But the rule is now well established, that as the owners claim an exemption from a general liability by reason of a special legislative enactment, the burden is on them to show, in order to bring themselves within the provisions of the enactment, that the pilot was alone in fault. The eighty-ninth section of this statute provides that the act shall not. extend to ports in relation to which special provisions have been made in any particular act or acts of parliament. It would clearly seem that by this section the general act does not apply to the ports of Liverpool and Newcastle, and it has been so held. The 1 Bennet v. Moita, 7 Taunt. 258; The Christiana, 2 Hagg. Adm. 183; The Vernon, 1 W. Rob. 316. The Protector, 1 W. Rob. 45; The Diana, 1 W. Rob. 131, affirmed Stuart v. Isemonger, 4 Moore, P. C. 11; The Ripon, 6 Notes of Cases, 245; The Christiana, 7 Notes of Cases, 2, affirmed Hammond v. Rogers, 7 Moore, P. C. 160; The Carrier Dove, Brow. & L. Adm. 113. See also The Massachusetts, 1 W. Rob. 371; Rodrigues v. Melhuish, 10 Exch. 110, 28 Eng. L. & Eq. 474; The Mobile, Swabey, Adm. 69, 127; Netherlands S. B. Co. v. Styles, Privy Council, 40 Eng. L. & Eq. 19. In The Batavier, 2 W. Rob. 467, the pilot had been in the constant employ of the owners for fifteen years, but as he was alone in fault the owners were held not liable. In The Christiana, supra, the pilot had done his duty by bringing the vessel to the Downs, where she anchored, but as he could not leave on account of bad weather the owners were held entitled to the legal protection which his presence gave them. See also Lacy v. Ingram, 6 M. & W. 302. The 87th section of the 6 Geo. IV. c. 125, provided that nothing in the act contained should extend to, affect, or impair the jurisdiction of the High Court of Admiralty. Sir John Nicholl construed this to mean that the act only applied to the common-law courts, and that the vessel was still liable in rem although there was a pilot on board. The Girolamo, 3 Hagg. Adm. 169. See also The Baron Holberg, 3 Hagg. Adm. 244; The Gladiator, id. 340; The Eolides, id. 367; Smith v. The Creole, 2 Wallace, C. C. 485, 518. But it is now well settled in England that the clause above cited means that the Court of Admiralty shall retain its jurisdiction to administer the law as altered by the act, and, therefore, the vessel is not liable if the pilot is alone in fault. The Protector, 1 W. Rob. 45, 52, and cases supra. * Attorney-General v. Case, 3 Price, 302. The King's Bench, in Carruthers v. Sydebotham, 4 M. & S. 77, were of a different opinion. The Supreme Court of the United States, in a case of collision happening in the port of Liverpool between two American vessels, seemed to consider it settled by the English admiralty cases that the owners were not liable if there was a pilot on board. Smith v. Condry, 17 Pet. 20, 1 How. 28. It is to be observed, however, that the cases Liverpool and Newcastle acts contain no clause similar to that in the general statute of 6 Geo. IV., but provide, merely, that a master shall take a pilot on board or shall pay pilotage. This is similar to our own statutes, and the question arises whether the pilot can be said to be taken on board by such compulsion that the owner is not liable for his acts. In England, the weight of authority is clearly in favor of exonerating the owner.1 cited are The Maria, 1 W. Rob. 95; The Protector, id. 45; The Diana, id. 131. The last two cases were decided under the general act, and are, therefore, not authorities to the point that the 55th section applies to the Liverpool act. In The Maria, supra, which was a case under the Newcastle act, which is similar to the Liverpool, Dr. Lushington said he doubted very much whether he could apply the 55th section of the general act to the case of a Newcastle pilot. He expresses the same doubt also in the subsequent case of The Agricola, 2 W. Rob. 10. 1 The Court of King's Bench, in Carruthers v. Sydebotham, 4 M. & S. 77, and the Court of Exchequer, in Attorney-General v. Case, 3 Price, 302, have arrived at opposite conclusions in regard to the construction of the Liverpool act. In the former case it was held that the taking a pilot on board was compulsory, and the owners, therefore, were not liable. In the latter case a different opinion was expressed, but the facts of the case did not call for it. The vessel was lying at anchor in the river Mersey. By the 31st and 34th sections of the Liverpool act, it is provided, that any vessel, whilst lying at anchor, may require a pilot to remain on board, upon payment of five shillings a day for his services. The pilot was retained on board, and the owners were held liable. This case therefore, is not an authority against the construction of the act, as laid down in Carruthers v. Sydebotham. See also Rodrigues v. Melhuish, 10 Exch. 110, 28 Eng. L. & Eq. 474; The Maria, Law Rep. 1 Adm. 258. It was held, in The Montreal, 24 Eng. L. & Eq. 580, where a pilot had been taken on board under the Liverpool act to pilot the vessel to the Queen's Docks at Liverpool, and had subsequently anchored in the river Mersey, and came into collision the next day while proceeding up the river, that the vessel was not liable, the pilot being alone to blame. And in The Maria, 1 W. Rob. 95, and The Agricola, 2 W. Rob. 10, cases under the Newcastle act, it was held, that if the master was obliged to take a pilot on board or to pay full pilotage, such a taking was by compulsion and the owners were not liable. In both these cases the vessels were homeward bound. In The Annapolis, Lush. Adm. 312, Dr. Lushington said: "But whether the Merchants' Shipping Act applies to this case or not, I am of opinion that the owners of the Annapolis are exempt from responsibility by reason that the employment of the pilot was compulsory: the pilot was not their servant or agent; they could not avoid intrusting him with the management of the vessel. In the case of The Maria, I have stated at some length my reasons for coming to this conclusion. I believe that the doctrine I then maintained, and now adhere to, is consonant with justice, supported by authority, and is in strict accordance with the principle adopted by the Legislature in the Merchants' Shipping Act." In this case a vessel bound for Liverpool took |