19 F. Cas. 1344 | U.S. Circuit Court for the District of Southern New York | 1853
Under the contract in this case, the tug is responsible only for the exercise of ordinary skill and diligence in her navigation — such care and diligence as a prudent man would exercise, under like circumstances, in regard to his own affairs. In other words, the tug is liable for negligence, by which I mean the absence of ordinary and reasonable care and attention in her navigation. It is urged by the claimants, that, under this contract, she can be made liable only in case of gross negligence. It is somewhat difficult, however, to understand exactly what is meant by this expression in the law, unless, as has been said by an eminent English judge, in a recent case, it means little, if anything, more than negligence with an epithet. The absence of ordinary care and attention may be, under certain circumstances, gross negligence. But, in determining the rights of the parties to this suit, I do not enter into the supposed distinction between the different degrees of negligence, as the contract in this case does not, in my judgment, contain a stipulation for negligence at all. Whether any such contract can be upheld upon any sound principle of law, will be determined when the question arises. It does not arise here. Some express and positive stipulation to that effect will be required, before it can be presented for consideration. An agreement to be towed “at the risk of the master and owners” of the tow, does not exempt the tug from proper and reasonable care and skill in her navigation.
The tug had a barge lashed to her larboard side, and the canal-boat in question was lashed outside of the barge. As the vessels entered the tide in the East river, which was strongly ebb, the tow was submerged and sank. The preponderance of the evidence is, that the speed of the tug was slackened and she had nearly lost her headway, before she .entered the tide, and that the accident was attributable to the tow’s being heavily laden, and having been in a leaky condition from the time that she was taken in tow in the Raritan river. Some evidence has been given to show that the tug was in fault in not entering the tide head on, instead of entering it, as she did, somewhat obliquely, as she rounded into it. The master of the tug states that, when he entered the tide, it was a little on his larboard bow; that he has tried various ways at different times; and that he thinks that the safest course. There are different opinions on the subject. All the- evidence impeaching the conduct of the tug, is, however, slight and unsatisfactory. The burthen of establishing the want of ordinary skill and diligence on the part of the tug at the time of the disaster rests on the libellant, and, as the preponderance of the evidence is the other way, the decree of the court below must be affirmed.