NELSON. Circuit Justice.
One ground of defence set up is. that, by the contract of towage, it was agreed that the canal boat was to be towed by the steamer at her own risk. The answei to this is, that this contract does not exempt the steamboat from liability for damages caused to the canal boat by the negligence of those in charge of the steamboat.
On the question of negligence, the court oelow decided against the steamboat, in ac*594cordance, X think, with the weight of the evidence. The steamboat was making the circuit to get into the East river, the tide being ebb. The weight of the proof is, that chere was room sufficient, with the exercise of proper caution and care, to make the turn with safety, and avoid vessels at anchor. Besides, even conceding the crowded condition of the harbor, the steamboat should have followed the precaution of one which, with as large a tow. thirty-five boats, had gone down just ahead of her, and. to avoid danger, had passed around Governor’s Island, and come up into the East river through Buttermilk channel. Decree affirmed.
[On appeal to the supreme court, the judgment of the circuit court was affirmed. 12 Wall. (79 U. S.) 167.]