This is an appeal from a final decree dismissing appellant’s libel in personam against Inland Waterways Corporatiоn, owner of the Towboat Cairo, to recover for loss of appellant’s Steel Tank Barge Bisso No. 9 while in tow of the Cairo, by the latter’s negligence.
On December 1, 1943, National Oil Transport Corporation, charterer of ap-pedant’s barge, entered into a contract with appellee for towage of a number of National’s barges, including thе Bisso No. 9, on the Mississippi River. This contract provided:
“The movement contemplated will be done at the sole risk of thе ‘craft to be towed’ and its cargo, and neither the boats and/or any other equipment used in said service nor the owner, charterer or hirer thereof shall be liable for any loss or damage to the ‘craft to be towed’ or its cargo nor for any damage done by the ‘craft to be towed’ however occurring.
“The masters and crews and employees оf all boats and/or other equipment assisting the ‘craft to be towed’, shall, in the performance of said service, beсome and be the servants of the ‘craft to be towed’, regardless of whether the ‘craft to be towed’ assists in the service in any way and irrespective of whether they be aboard the ‘craft to be towed’ or in command thereof.”
In May, 1944, aрpellee’s Towboat Cairo took in tow eight unmanned barges belonging to various persons, and proceeded uр the Mississippi River from New Orleans. The Bisso No. 9 was one of these barges. None of the barges had any motive power оr steering mechanism.
Because of high water and dangerous conditions prevailing in the Mississippi River above Vicksburg, the Cairо’s tow was up near that point, and moved alternately in groups of four barges, of “doubles tripped”.
While attempting to negotiate the center span of the Greenville Highway Bridge, the Cairo negligently brought her tow of four barges into collision with a bridge pier; and appellant’s barge was lost in the collision as a direct result of the Cairo’s negligence.
The District Cоurt, making full find-ings of fact and conclusions of law, and filing an opinion, 1 held that the collision was attributable to the negligence of the Cairo; that the “release towage agree-ment” in question did not relieve the Cairo from liability for negligence; but that the “pilotage clause” was broad enough to make the Cairo’s crew appellant’s servants and to free appellee from responsibility for their negligence. The libel was accordingly dismissed,
' Appellant raises no question оf fact, It rests its case on the facts found by the district judge and his conclusion that the first clause, “sole risk and release clаuse”, of the towage contract was, under The Syracuse,
Appellee, opposing this view, urges upon us that, fаr from its being clear, as appellant argues, that a pilotage clause finds justification only where the tow is *403 manned аnd under its own power, the situation of a tug with a dumb tow makes it more necessary for it to relieve itself of what may approach an insurer’s liability.
As to the “sole risk” or “release” clause, which the court below held invalid, appellee insists that this сlause also was valid and effective. Arguing that the cases cited by the district judge in support of his view that the clause was invаlid, are not authority for the holding, appellee, citing The Oceanica, 2 Cir.,
In strong support of these views, the brief
amici curiae,
basing its arguments on the settled law that a tug is not a common carrier when it engages in tow-age, The Margaret,
Urging> therefore, that there should be> and ig> no difficulty in the way of partiеs agreeing as they please in cases gueb ag ^bjS) and t;lrat if the parties to a eontract unequivocally shift the liability for logg or damage to the tow from ^be owner 0f ^he tug to the owner of the toW; there can be no reagon for holding bbe gbjft js invalid, they insist that it would be difficult> if not impossible, gnd apter language for doing so than that employed here. So insisting, they urge upon us that> whüe tbe digtrict judge was right in exonerating the tug under the «pilotage» clause> he erred in folding that the release towage agrеement did not releage the tug from negli_ gence
We find ourselves in general agreement with the approach of аppellee and amici curiae to the questions presented and the positions taken by them below and here, that not merely one, as found by the district judge, but both of the clauses relied on are valid and effective to release the appellee from liability, and that on both grounds the decree should be affirmed.
Notes
. Bisso v. Inland Waterways Corp., D.C.,
. Noonan v. Bradley,
. Stevens v. The White City,