Brady Co. v. Jefferson Son

Gilpin, Chief Justice, delivered the opinion of the court: It is to be observed at the outset that this is not a case between the steam-tug “Swallow” and the colliding barge towed by her. The question presented by this controversy, and which we are called upon to decide, arises between the owners of the tug Swallow, then having four barges in tow, and a third party, namely, the owner of a cargo of corn on board of the sloop Helen, then being towed by the plaintiffs by mule power, which was sunk in the Chesapeake and Delaware canal and damaged by reason of a collision between one of the barges then in tow and the Helen. The question of contributory negligence on the part of the Helen was properly and distinctly submitted to the jury on the trial below, and they by their verdict found in effect that the Helen was without fault as touching the collision. And thus we are confronted with the question as to who should be held to be legally responsible for the sinking and damage of the cargo of corn—the owners of the tug or the owner of the colliding barge. There certainly was fault somewhere, for which somebody is answerable. Upon whom then does the fault and reponsibility rest? The plaintiffs in error contend that they were without fault; and that the injury sustained by the defendant in error is solely attributable to the fault of the colliding barge; that the plaintiffs in error, as well in fact as in law, stood in the relation of mere agents of the barge, and are not responsible in that character for the injury. In other words, they say they were not guilty of any negligence—that the tug was the *78 agent and the barge the principal in the transaction • and that the injury was caused by the negligence of the latter, for which they are in no way responsible. Such I understand to be the position of the counsel for the plaintiffs in error. If they are right in their view of the case then it would seem to follow as a logical result that the defendant in error is without remedy as against the owners of the tug. The proper solution of these questions must finally dispose of this case. It becomes necessary, therefore, for us to ascertain and determine according to the rules and principles of law applicable to the case which of these parties is to be considered the principal and responsible party in this transaction. It appears by the record before us that the plaintiff in error had the exclusive right and privilege of towing all vessels on the canal both by steam-tugs and by horses or mules, except such as were propelled by steam or were provided with horses or mules of their own to tow them. With these exceptions they enjoyed by contract with the canal company the exclusive right and privilege of towing all vessels in and through the canal. It follows, therefore, that such as had not the means of propelling their own vessels were of necessity compelled to employ the plaintiffs in error for this purpose. The barges in question were utterly destitute of all means of propulsion. The tug at the time of collision had the four barges in tow, each belonging to different persons, and each having a separate and independent commander on board, and those barges attached to each other and to the tug, but each having an independent commander, were being carried through the canal. Now, under these circumstances, with what show of reason, in view of the facts, can it be contended’ that the several barges stood in the relation of principals to the tug, and that the latter was subordinated to and hence subject to the direction and control of the several commanders of the different barges? In this view of the case there would be four separate and independent commanders differing perhaps in théir opinions and in their directions to the tug. Is it to be supposed .for a moment that’ the business of towing could be safely carried on under such circumstances? It seems to me that the exigencies of the business *79 and its safe prosecution require that the authority to direct and control should be a unit and should reside with the steam-tug. The four barges were attached together and to the tug by hawsers or lines—the first by two lines about twenty feet astern of the tug, the second by one line to the first barge ten or twelve feet astern of her, and the third and fourth barges attached in like manner and distances from each other. As heretofore remarked, the barges had no motive power of their own. Whatever motion they had was imparted to them by the tug. The barges and tug attached together, as above described, were substantially and in effect one combined moving mass whose momentum was the result of the tug’s motive power acting on both the tug and the barges. It would seem to be manifest, therefore, that the navigation of the barges was dependent upon and controlled by the navigation of the tug. The business of towing vessels by steam power, although of comparative modern date, has grown to be an important and extensive branch of business in most of the harbors, rivers, and canals of the country. The power of the tug over the course and navigation of the tow is practically paramount and controlling, and hence it follows that a corresponding responsibility should attach to her for any injury which may have happened to innocent third parties from collision with the tow in her charge. And especially must this be so where the tug herself is in fault in not using proper timely 'precaution in guarding the tow against the danger of injury to third parties being committed by her. As the business of towing by steam power has in fact become a specialty, the words “ordinary diligence, care, and skill” do not sufficiently indicate and define the measure of duty required of the commander of a steam-tug engaged in this business. It is something more than ordinary. A person who is called upon without any special qualifications to perform a particular service is expected to apply only such care and diligence as is usually bestowed by persons of ordinary common sense. But a specialist engaged in his specialty is bound to exercise special care and diligence. The distinction is not merely nominal, it is real, and challenges the approval of reason and common sense. The law recognizes it as a just and proper distinction. *80 The duty which the commander of a steam-tug engaged in the business of towing assumes to perform, requires of him by reason of its being his specialty a higher degree of caution, diligence and skill; not merely the diligence of an ordinary person or non-specialist, but the diligence and skill of a good business man in his particular specialty. And the skill and diligence required must be commensurate with the duty to be performed, and the. measure of the care and timely precaution to be exercised must rise in proportion to the dangers of the service. The founders of the ancient common law never so much as dreamed that steam would ever be applied as a motive power in the propulsion of vessels, and, of course, they could not have anticipated its use in the business of towing. But it is justly claimed as indicating the practical wisdom and advantages of the common law, as illustrated by the current of judicial decisions from the time of Lord Mansfield up to the present day, that it adapts itself to the manifold and varying necessities of commerce as they from time to time arise in the progressive development of the business of the country. And considering this to be so it seems to me that it would be a reproach to our system of jurisprudence, if an adequate remedy could not be found in a case like this where no remedy can be had in admiralty in consequence of the injury having occurred in the waters of a canal. The question to be determined should always be who was in fault in the particular case. Considering, as I do, that the barges and their crews were for the time being subordinated to and under the direction and control of the tug and her commander, I am of opinion that there exists no error in the charge of the court below. But even apart from the doctrine of respondent superior, I am of opinion that the tug was in fault, or, in other words, was guilty of negligence. The commander of the tug was bound to-know and to guard against the dangers of the navigation. It was incumbent upon him, as matter of duty, - to know there were bridges ■ to pass through, that vessels were almost constantly passing each other in their transit through the canal, that the natural and uniform effect of the tug moving through the water at her usual rate of speed would be to lift and draw a vessel from the side of the *81 canal into the wake of the tug; and therefore he was bound by timely forecast and precaution to guard against such a result, especially in a case like this, where he had a string of four barges in tow behind him, occupying a space of several hundred feet in the rear of the tug. He, of course, knew of the curve in the canal on the westerly side of the bridge, and that the tug was liable to be suddenly approached by vessels from that direction; and it was his duty to keep a sharp lookout for them, and to sufficiently slacken the speed of the tug, or, if need be, to stop her altogether, in order to avoid the danger of collision. If he had done either the one or the other when he first saw the Helen approaching, the collision would in all human probability have been avoided. But, instead of doing this, he kept right on, only slightly slackening her speed, until after the tug and two of the barges had passed the Helen. In view of all the facts disclosed by the record I do not think he used that timely care, forecast, and precaution which the circumstances of the case and the law, as I understand it, demanded of him, and hence that he was guilty of negligence. In addition to the authorities cited in the course of the argument by counsel on both sides, I would refer to the following eases of The Express, 1 Black. C. C. R. 365; The Syracuse, 12 Wall. 167; The John Counter, 18 Law Reporter 553 ; The R. W. Forbes, 19 Law Reporter 544; The Lady Pike, 21 Wall. 1; The Mohler, 21 Wall. 230 ; Wharton on Negligence, secs. 32, 33, 947. The judgment below is affirmed.