Lead Opinion
In this case the st.eamship Oceánica, laden with iron ore, and the barge Massasoit, laden with lumber, both bound for Tonawanda, N. Y., were lying at Presque Isle, about three miles above Marquette. The Oceánica was owned by the Tonawanda Iron & Steel Coiiipany and the Massasoit by John J. Boland and Charles Keenan. Mills, who was the Tonawanda Company’s vessel, manager, made a contract over the telephone with Boland, who wаs the managing owner of the Massasoit, that the Oceánica should tow the Massasoit from Marquette to Buffalo, the tow to assume all risks. We find this to be the contract, because Mills so testifies, and because the day after it was made he so stated in a letter to Boland, requesting a reply if there was any difference of understanding, and no reply was sent, and, finally, because Boland, though a witness at the trial, did not contradict Mills’ testimony as to the contract. The tug did not drop the tow at Buffalo, but continued on with her towards Tonawanda. On the way down the Niagara river the tug broke her propeller and cut her line to the tow, which was carried by the current against the intake pier and became a total loss.
We are confronted at the outset of the case with the preliminary question whether the agreement made released the tug and her owners from liability for the loss of the tow, even if it was due to the negligence of those in charge of the tug. In this state a common carrier may contract against his own negligence; but such a contract will not be construed to cover the carrier’s negligence, unless intention to do so is expressly stated. The reason is that, the stipulation having something besides negligence to apply to, viz., the carrier’s liability as insurer, it will not be supposed that the parties intended to cover the carrier’s liability for his own negligence, unless that is expressly, or by necessary inference, included. Canfield v. B. & O. R. R. Co.,
A tug is not, in relation to its tow, a common carrier, being only bound to the exercise of ordinary care. The Margaret,
“It is unnecessary to consider tlie evidence relating to tlie alleged contract of towage. Lecanse, if it be true, as tlie appellant says, that by special agreement tlie canal boat was being towed at lier own risk, nevertheless the steamer is liable, if through negligence of those in charge of her the canal boat has suffered loss. Although the policy of the law has not imposed -on the towing boat the obligation resting on a common carrier, it does require on tlie part of tlie persons engaged in her management tlie exercise of reasonable care, caution, and maritime skill, and if those are neglected, and disaster occurs, the towing boat must be visited with the consequences.”
The learned judge must have meant that an agreement by the tow to tow at her own risk should not be construed to cover the tug’s negligence. This was the view of Judge Nelson in the court below (The Syracuse,
“Ore ground of defense set up is that by the contract of towage It was agreed that the canal boat was to be towed by tlie steamer at her own risk. The answer to this is that this contract does not exempt tlie steamboat from liability for damages caused to the canal boat by the negligence of those in charge of the steamboat.”
The evidence in that case as to the agreement was that the exemption appeared on a printed receipt for towage, which was signed after the boat had been taken in tow and the tow had started and the towage had been paid. Obviously such a provision could not under those circumstances have been held a contract binding upon the tow. Still it must be admitted that the learned judge was speaking of a special agreement entered into between the tug and the tow that the latter should be towed at her own risk. The Syracuse has never been cited on this point in any subsequent case in the Supreme Court arising out of a towage contract; but it has been followed in the lower courts in the following cases: Deems v. Albany & Canal Line,
Such contracts in other relations than that of tug and tow hаve been held to cover negligence. The Fri,
Decree reversed, but, in view of the authorities to the contrary, without costs.
Rehearing
The libelants contend in the first place that, as the court has lound the towage' contract made between the owners оf the steamer Oceánica and the barge Massasoit to have been from Marquette to Buffalo, its terms cannot be held to apply to the subsequent towage from Búllalo to Tonawanda. Therefore it is argued that the agreement of the owner of the barge to assume all risks did not apply to the stranding of the barge in the Niagara river. We think this view erroneous. If the master of the Oceánica to oblige the master of the bаrge towed the barge beyond Buffalo against his owners’ orders, then neither the Oceánica nor her owners are liable because the owners of the barge knew that the contract was to tow simply to Buffalo. The R. F. Cahill,
In the next place the petitioners contend that, the ownership of the cargo being different from the ownership of the barge, the cargo owners have a right to recover, even if the barge owners have not. No difference between the rights of the cargo and of the barge were pointed out either in the pleadings, in the proofs, in the printed briefs, or on the oral argument. It is now, however, admitted by the claimants of the Oceánica that the cargo was owned by third parties, and the question, therefore, arises whether their rights against the Oceán-ica differ from the rights of the owners of the barge.
The claimant of the Oceánica contends that the cargo owners must claim through, and are therefore bound by, the towage contract. New Jersey Steam Navigation Co. v. Merchants’ Bank,
But the libelants claim that, even if the owners оf the Oceánica in a suit in personam could not be held by the owners of the barge for the loss of the barge because of the contract, still that the vessel herself is liable to them in rem. The authorities cited only show that a vessel guilty, of a tort is personified in the admiralty, and may sometimes be held liable in rem when her owners arc not liable at all. For example, a vessel may be condemned as guilty of engaging in piracy, her оwners not being liable at all, because it was without their knowledge or
No doubt a suit in rem against a vessel for negligence is a suit ex delicto, even if there has been a contract between the parties. Suits arising out of negligence are ex delicto, even when charter parties or bills of lading regulate the rights of the parties. This fact, however, does not nullify the contract. In such suits against a vessel in rem the agreement is always pleaded and proved. The books are full of suits against vessels for damage to cargo or baggage, where the vessel was discharged because of exemptions contained in the agreement between the parties. If the claimant shows that by agreement he is legally exempted from liability, his vessel is exempted also. It would, indeed, be extraordinary if a libelant by proceeding in rem could recover against the owner’s property, when by virtue of the contract between the parties he could not recover against the owner in personam. The law is well expressed by Mr. Justice Brown in Bancroft v. Queen of the Pacific,
“It is expressly agreed that all claims against the P. G. S. S. Co., or any of the stockholders of said company, for damage to or loss of any of the within merchandise, mpst be presented to the company within 30 days from date hereof, and that after 30 days from date hereof no action, suit, or procеeding in any court of justice shall be brought against said P. O. S. S. Co., or any of the stockholders thereof, for any damage to or loss of said merchandise ; and the lapse of said 30 days shall be deemed a conclusive bar and release of all right to recover against said company, or any of the stockholders thereof, for any such damage or loss.”
The action was begun four years after the loss. The claimant excеpted to the libel because, among other things:
‘‘The causes of action have been waived and abandoned by virtue of a limitation clause of 30 days contained in the bill of lading or shipper’s receipt.”
This exception was overruled by the District Court (The Queen of the Pacific,
“The Court of Appeals in its opinion dwelt upon several propositions arising upon the pleаdings and evidence, but in the view we have taken of the case we shall find it necessary to discuss but one, which is, in substance, that the libelants did not, as required by the bill of lading, present to the company their claims for damage to the merchandise within 30 days from the date of the bills of lading, April 27 and 28, 1888. There is no pretense of*899 a '•oinplinnce with this condition. Two answers are made to this defense: First, that the limitation applies only to claims against the steamship company or any of the stockholders of said company, and. not to claims against the vessel; second, that the limitation is unreasonable.
“1. The first objection is quite too technical. It virtually assumes that Hiere were two contracts, one with the company and one with the ship, the vehicle of transportation owned and employed by the company, and that while the company as to all its other property is protected by the contract, as to this particular property, used in carrying it out, it is not so protected. But, if such be the case with respect to this particular stipulation, must it not also he so with respect to the other stipulations in the bill of lading, to which the company is a party, but not the ship? Thus, ‘the responsibility of said company shall cease immediately on the delivery of the said goods from the ship's tackles.’ Can it be possible that the responsibility of the ship shall not c-ease at the same time? ‘The company shall not be hold responsible for any damage or loss resulting from lire at sea or in port, accident to or from machinery, boilers or steam,’ etc. But shall the company be exempt and not the ship? ‘It is expressly understood that the said company shall not be liable or accountable for weight, leakage, breakage, shrinkage, rust, etc., * * * nor for loss of specie, bullion, etc., unless, shipped under its proper title or name, and extra freight paid thereon.’ But shall the ship be liable for all these excepted losses, notwithstanding (hat the company is exonerated? These questions can admit of but one answer. There was in truth but one contract, and that was between the libelants, upon the one part, and the company in its Individual capacity and as the representative of the ship, upon the other.
“There is no doubt of the general proposition that restrictions upon the liability of a common carrier, inserted by him in the bill of lading for his own benefit and in language chosen by himself, must be narrowly construed. Still they ought not to be wholly frittered away by an adherence to the letrer of the contract, in obvious disregard of its intent and spirit. It is too clear for argument that it was the intention of the company to require notice to he given of all claims for losses or damage to merchandise intrusted to its care, and as such damage could only come to it while the merchandise was upon one of its steamers, or in the process of reception or delivery, and as the owner would have his option to sue either in rom or in personam, it could never have been contemplated that in the one case he should be obliged to give notice and not in the other. In either event, the money to pay for such damage must come from the treasury of the company, and we ought not to give such an effect to the stipulation as would enable the owner of the merchandise to avoid its operation by simply changing his form of action, it would be almost as unreasonable to give it this construction as to hold that it should apply if the action were in contract, but should not apply if it were in tort. The ‘claim’ is in either case against the company, though the suit may bo against its property.”
The Circuit Court of Appeals for the Third Circuit had, before this decision was handed down,.said of a similar clause in a bill of lading:
“It is further contended by the libelant that the stipulation as to notice contained in the St. Hubert’s bill of lading is not a defense to an action in rem, because the provision was only Cor the protection of the shipowners, and did not apply to the ship. We do not think there is either reason or authority for so narrow and harsh a construction of this stipulation as to notice. There may be cases in which it is necessary to discriminate between the liability of the shipowner and that of the ship; but this is not one of them. It is an exemption stipulated for in the bill of lading of the ship for injury to goods done on the ship, notice of claim for which, is required to be given before removal front the custody of Hie ship. The shipowner can hardly be said to have secured himself against liability for want of notice of claim, if such exemption is not available whom Ms property is seized and subjected to payment of that very liability, its said by Judge McPherson in the case of The Westminster (1).' C.)102 Fed. 808 , where a similar clause was under*900 consideration: ‘This, I think, cannot рroperly be construed so as to. exempt the shipowner i£ he should he sued personally in a formal proceeding that may end in seizing his property by one kind of writ, and to deny him exemption if he should be sued in another form of proceeding that seizes his property in the beginning by a different kind of writ. * * * Ultimately his property is to be reached in order -to satisfy the libelant’s claim; and, if he is “liable” when his property is exposed to the danger of a final writ of execution in a personal action, I can see no ground for holding that he is any the less liable when his property is seized in limine by a proceeding in rem. It is familiar law that exemptions are to be strictly construed, against the carrier; but even in an exemption a strained construction should not prevail over the plain meaning of words.’ ” The St. Hubert,107 Fed. 727 , 781, 46 C. C. A.. 603, 607.
We do appreciate keenly that the decision of the majоrity of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions. The question should, and we hope will, be set at rest in this case by the Supreme Court.
Dissenting Opinion
(dissenting). Starting with the proposition, regarding which there can be no doubt, that the Massasoit, a helpless barge, was towed by the Oceánica upon the pier of the Buffalo Waterworks and impaled there until the barge and her cargo became a total loss, it would seem to be the duty of the court not to permit any harsh or novel inte’rpretation of the law to stand between her and redress. As the tug is only liable for her own negligence, the opinion of the court proceeds upon the theory that if the tow assumes all risks nothing can be contemplated except the assumption of the risk attributable to such negligence. Grant that this is so, it by no means follows that the tow is remediless if injured by the fault of the tug.
In 1870 the Supreme Court decided in the case of The Syracuse,
“The agreement of the canal boat to be towed at her own risk did not ■exempt the tug from liability for damages occasioned by her own negligence.”
■ The wisdom of the rule cannot, be doubted. It ought to be against public policy to permit a vessel to contract against her own fault. To allow her to do so begets recklessness, carelessness and neglect. The same reasons for prohibiting such a contract in the case of common ■carriers apply, though not, perhaps, to the same extent, in the case of a towage contract. In both cases the design is to prevent those who have the absolute control of another’s property from extorting an agreement that they may neglect all reasonable precautions to preserve it. I сan see no reason for abrogating the rule and every reason why it should be continued.
If, however, the facts found by the court be correct, it is difficult to perceive how the question arises at all in the case at bar. The court finds that the contract was:
“That tbe Oceánica should tow the Massasoit from Marquette to Buffalo, the tow to assume all risks.”
When the tow reached Buffalo it is obvious that the contract was .comрleted and the agreement to assume all risks which was a part of the contract, ended when the contract ended. The accident happened after the vessels had left Buffalo and were on their way to Tonawanda down the Niagara river. How an agreement to assume all risks on voyage from Marquette to Buffalo can be made applicable to a voyage from Buffalo to Tonawanda I am unable to understand.
• •. I think the decree was right and should be affirmed.