The Oceanica

WARD,, Circuit Judge. 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 was 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., 93 N. Y. 532, 45 Am. Rep. 268; Kenney v. N. Y. C. & H. R. R. R. Co., 125 N. Y. 422, 26 N. E. 626. In England, where a carrier may contract against his own negligence, the law is the same. Beven on Negligence (2d Ed.) p. 1128. The same rule was laid down by the Supreme Court of the United States, before it had decided in Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, on grounds of public policy, that a common carrier could not contract against liability for his own negligence. New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344, 12 L. Ed. 465. A tug is not, in relation to its tow, a common carrier, being only bound to the exercise of ordinary care. The Margaret, 94 U. S. 495, 24 L. Ed. 146. It follows that a contract against liability for negligence cannot be construed in the case of a tug as it may be in the case of a common carrier. The tug being only liable for negligence, if the tow agrees to assume all risks, no risks can be meant except those for which the tug is liable, viz., the consequences of her own negligence. There is no other class of risks upon which the clause can operate as in the case of common carriers, viz., those arising from liability as insurer. Unless construed to cover the tug’s .negligence, the stipulation is meaningless; i. e., an agreement by the tow to assume risks to which she is subject without any stipulation and for which there is no [895] liability at all on the part of the tug. Still, in the case of The Syracuse, 12 Wall. 167, 20 L. Ed. 382, decided before the cases of The Margaret, supra, and Railroad Co. v. Lockwood, supra, had set at rest all question as to the extent of the tug’s liability to her tow and as to the right of a common carrier to contract against the consequence of his own negligence Justice Davis said: “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, 6 Blatchf. 2, Red. Cas. No. 13,717), who began his opinion with these words: “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, 14 Blatchf. 474, Fed. Cas. No. 3,736; The M. J. Cummings (D. C.) 18 Fed. 178; The Rescue (D. C.) 24 Fed. 190; The American Ragle (D. C.) 54 Fed. 1010; The Jonty Jenks (D. C.) 54 Fed. 1021; In re Moran (D. C.) 120 Red. 556; The Somers N. Smith (D. C.) 120 Fed. 569; Alaska Commercial Co. v. Williams, 128 Fed. 362, 63 C. C. A. 92. Such contracts in other relations than that of tug and tow have been held to cover negligence. The Fri, 154 Fed. 333, 83 C. C. A. 205; McCormick v. Shippy (D. C.) 119 Fed. 226, 230; Id., 124 Red. 48, 59 C. C. A. 568; Chicago, Milwaukee & St. Paul Railway Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161; Long v. Lehigh Valley R. R. Co., 130 Fed. 870, 873, 65 C. C. A. 354; Bates v. R. R. Co., 147 Mass. 255, 17 N. E. 633; Hosmer v. R. R. Co., 156 Mass. 506, 31 N. E. 652. And we see no reason why they should be differently constru [896] ed between tug and tow. This conclusion renders consideration of the other questions involved in the case unnecessary. Decree reversed, but, in view of the authorities to the contrary, without costs.