By the Court,
Bronson, J.
On the main question little need be added to what was said when the case was before us on a former occasion. (3 Hill, 9.) As the defendants were not common carriers of the boats which they towed, the parties met upon equal terms. Neither was under a legal necessity to contract with the other, and both were at liberty to make such a contract as they thought proper, provided there was no transgression of the law of the land. Whatever pains the defendants might have taken in building, fitting and manning their steamboats, it was still quite possible that losses might happen, either through the insufficiency of the boats or machinery, or the unskilfulness, negligence, or other misconduct of the master and hands. ' These, as well as the other risks of the voyage, were to be borne by some one, and the question on whom the burden should rest, must necessarily affect the price to be paid for the towing of boats. It was as competent for the parties to agree Which should ran the hazard, as it was to settle the amount of compensation.
In the Absence of an express agreement, the law would im-1 pose certain duties and liabilities upon both parties. The plaintiffs would be bound to pay a reasonable price for the towing, and the defendants would be answerable for any loss which might happen through the want of ordinary care and skill on the part of their servants. But the parties might, by contract, fix the price of towing as high or as low as they pleased, and shift the hazards of the business from one party to the other as they deemed proper. They might agree that the defendants should incur an increased liability, and answer for the safe delivery of the goods at all events; or that they should be wholly exempt from liability so long as they were not chargeable with fraud. Now here the parties settled the matter, both as to price and peril, for themselves. They agreed that the Astorogan should be towed to Albany for the sum of thirty dollars “ at the [538] risk of the master and owners thereof.” A loss has happened, and the question is, who shall bear it? We think the plaintiffs must bear it, because such was their agreement. It is impossible to say that the contract points to title kind or description of risk more than another; and if it does not cover all the perils of the voyage, it covers none, and means nothing. Courts are not at liberty to nullify contracts by way of expounding them, or to insert resirictions or qualifications which the parties did not think proper to make for themselves.
In this view of the case, it is unnecessary to inquire whether there was any thing like gross negligence on the part of the master of the steamboat or his hands; for should it be conceded that they are chargeable with gross negligence, the loss must still fall upon the plaintiffs. They agreed, for a sufficient consideration, that they would take the risk, and now that the loss has happened, they are not at liberty to cast off the burden upon the defendants.
The owner of a ship may cause himself to be insured against the barratry of the master, although appointed by himself; and I can see no reason why these parties were not at liberty to agree, that a loss happening through the negligence of the master and hands, whatever might be the degree of fault, should fall upon the plaintiffs. And if the contract is not set aside by considerations of public policy, we have no choice but to enforce it.
We think the nonsuit was properly ordered, and it only remains to notice some minor questions made upon the trial.
The plaintiffs gave no explanation on the trial as to the purpose for which the advertisement was offered in evidence. The steamboat New-London was not mentioned in it, and no one would be likely to see how it could have any legal bearing upon the cause. The plaintiffs should have explained to the circuit judge. But if we take their explanation on the argument, it will not help the case. They say the advertisement was proper evidence to show that the defendants were common carriers in the towing of boats. We think that, as matter of [539] law, the defendants were not common carriers in respect to the boats which they towed.
The remaining question is upon the offer to prove negligence in the employment of the pilot. The charge in the declaration is, that the “ defendants, by their servants, so carelessly, negligently and unskilfully then and there steered, managed and conducted their said steamboat,” that the Astorogan was run upon the rocks and sunk. The substance of the charge is, that the loss was occasioned by the fault of the servants in steering the boat, and not through any want of care in employing them. But if we reject the words “ by their servants,” the allegation will still be, that the steamboat was improperly “ steered, 'managed and conducted,” which is a different thing from saying there was negligence in employing the pilot. (Mayor v. Humphries, 1 Carr, & Payne, 251; Hullman v. Bennett, 5 Esp. R. 225; Breedlove v. Turner, 9 Mart. Louis. Rep. 353.) Where the gist of .the action is negligence, the party is confined to the species of negligence alleged. The proof must support the declaration. The plaintiffs have left us no room to doubt that here was a variance. They had been giving evidence to support the charge in the declaration of negligence in steering the boat. Finding themselves met by the special contract, they then changed their ground, and offered to show negligence in employing the pilot “ as a distinct gravamen or ground of liability.” They thus admitted, what appears to be quite evident, that there was a substantial difference between the charge in the declaration and the proof offered.
There are other difficulties lying beyond, the objection, for variance. The only fact which the plaintiffs offered to prove was, that the pilot was not skilful. That fact, standing alone, would not make out that there was negligence in employing him. Notwithstanding the want of skill, it may be that the pilot came to the defendants highly recommended, or that all reasonable diligence was used to ascertain his qualifications before he was employed. The plaintiffs should have gone further, and offered to show that the defendants knew the pilot was wanting [540] in skill, or that they omitted to make proper inquiries before the man was employed.
J. A. Spencer dp M. T. Reynolds, for the plaintiffs in error.
1. The defendants were common carriers, and responsible as such. (Smith v. Pierce, 1 Louis. Rep. 349; Adams v. The New-Orleans Steam Tow-Boat Company, 11 id. 46; Sproul v. Hemmingway, 14 Pick. 1; Coggs v. Bernard, 2 Ld. Raym. 913, 917, 918.)
2. But if the defendants were not common carriers, they were bailees for hire, and bound by the nature and character of their etnployinent to use ordinary and reasonable care, diligence and skill, in the performance of what they had undertaken. (Story On Bailm. 298, § 457; 2 Kent's Comm. 585, 586, 591, 592.) Free access — add to your briefcase to read the full text and ask questions with AI
By the Court,
Bronson, J.
On the main question little need be added to what was said when the case was before us on a former occasion. (3 Hill, 9.) As the defendants were not common carriers of the boats which they towed, the parties met upon equal terms. Neither was under a legal necessity to contract with the other, and both were at liberty to make such a contract as they thought proper, provided there was no transgression of the law of the land. Whatever pains the defendants might have taken in building, fitting and manning their steamboats, it was still quite possible that losses might happen, either through the insufficiency of the boats or machinery, or the unskilfulness, negligence, or other misconduct of the master and hands. ' These, as well as the other risks of the voyage, were to be borne by some one, and the question on whom the burden should rest, must necessarily affect the price to be paid for the towing of boats. It was as competent for the parties to agree Which should ran the hazard, as it was to settle the amount of compensation.
In the Absence of an express agreement, the law would im-1 pose certain duties and liabilities upon both parties. The plaintiffs would be bound to pay a reasonable price for the towing, and the defendants would be answerable for any loss which might happen through the want of ordinary care and skill on the part of their servants. But the parties might, by contract, fix the price of towing as high or as low as they pleased, and shift the hazards of the business from one party to the other as they deemed proper. They might agree that the defendants should incur an increased liability, and answer for the safe delivery of the goods at all events; or that they should be wholly exempt from liability so long as they were not chargeable with fraud. Now here the parties settled the matter, both as to price and peril, for themselves. They agreed that the Astorogan should be towed to Albany for the sum of thirty dollars “ at the [538] risk of the master and owners thereof.” A loss has happened, and the question is, who shall bear it? We think the plaintiffs must bear it, because such was their agreement. It is impossible to say that the contract points to title kind or description of risk more than another; and if it does not cover all the perils of the voyage, it covers none, and means nothing. Courts are not at liberty to nullify contracts by way of expounding them, or to insert resirictions or qualifications which the parties did not think proper to make for themselves.
In this view of the case, it is unnecessary to inquire whether there was any thing like gross negligence on the part of the master of the steamboat or his hands; for should it be conceded that they are chargeable with gross negligence, the loss must still fall upon the plaintiffs. They agreed, for a sufficient consideration, that they would take the risk, and now that the loss has happened, they are not at liberty to cast off the burden upon the defendants.
The owner of a ship may cause himself to be insured against the barratry of the master, although appointed by himself; and I can see no reason why these parties were not at liberty to agree, that a loss happening through the negligence of the master and hands, whatever might be the degree of fault, should fall upon the plaintiffs. And if the contract is not set aside by considerations of public policy, we have no choice but to enforce it.
We think the nonsuit was properly ordered, and it only remains to notice some minor questions made upon the trial.
The plaintiffs gave no explanation on the trial as to the purpose for which the advertisement was offered in evidence. The steamboat New-London was not mentioned in it, and no one would be likely to see how it could have any legal bearing upon the cause. The plaintiffs should have explained to the circuit judge. But if we take their explanation on the argument, it will not help the case. They say the advertisement was proper evidence to show that the defendants were common carriers in the towing of boats. We think that, as matter of [539] law, the defendants were not common carriers in respect to the boats which they towed.
The remaining question is upon the offer to prove negligence in the employment of the pilot. The charge in the declaration is, that the “ defendants, by their servants, so carelessly, negligently and unskilfully then and there steered, managed and conducted their said steamboat,” that the Astorogan was run upon the rocks and sunk. The substance of the charge is, that the loss was occasioned by the fault of the servants in steering the boat, and not through any want of care in employing them. But if we reject the words “ by their servants,” the allegation will still be, that the steamboat was improperly “ steered, 'managed and conducted,” which is a different thing from saying there was negligence in employing the pilot. (Mayor v. Humphries, 1 Carr, & Payne, 251; Hullman v. Bennett, 5 Esp. R. 225; Breedlove v. Turner, 9 Mart. Louis. Rep. 353.) Where the gist of .the action is negligence, the party is confined to the species of negligence alleged. The proof must support the declaration. The plaintiffs have left us no room to doubt that here was a variance. They had been giving evidence to support the charge in the declaration of negligence in steering the boat. Finding themselves met by the special contract, they then changed their ground, and offered to show negligence in employing the pilot “ as a distinct gravamen or ground of liability.” They thus admitted, what appears to be quite evident, that there was a substantial difference between the charge in the declaration and the proof offered.
There are other difficulties lying beyond, the objection, for variance. The only fact which the plaintiffs offered to prove was, that the pilot was not skilful. That fact, standing alone, would not make out that there was negligence in employing him. Notwithstanding the want of skill, it may be that the pilot came to the defendants highly recommended, or that all reasonable diligence was used to ascertain his qualifications before he was employed. The plaintiffs should have gone further, and offered to show that the defendants knew the pilot was wanting [540] in skill, or that they omitted to make proper inquiries before the man was employed.
J. A. Spencer dp M. T. Reynolds, for the plaintiffs in error.
1. The defendants were common carriers, and responsible as such. (Smith v. Pierce, 1 Louis. Rep. 349; Adams v. The New-Orleans Steam Tow-Boat Company, 11 id. 46; Sproul v. Hemmingway, 14 Pick. 1; Coggs v. Bernard, 2 Ld. Raym. 913, 917, 918.)
2. But if the defendants were not common carriers, they were bailees for hire, and bound by the nature and character of their etnployinent to use ordinary and reasonable care, diligence and skill, in the performance of what they had undertaken. (Story On Bailm. 298, § 457; 2 Kent's Comm. 585, 586, 591, 592.)
3. The instrument called a permit was not a contract between the parties; but if it was, it did not exempt the defendants from the obligation to use ordinary care, diligence and skill, (Schieffelin v. Harvey, 6 Johns. 170; The Camden & Amboy Rail-Road &c. v. Burke, 13 Wend. 611; Fairchild v. Slocum, 19 id. 329, 332.)
4. Giving to this instrument, however, the utmost force and effect which can be allowed to it, the defendants were certainly responsible for fraud, breach of good faith or. gross neglect, on the part of their servants or agents, and so the circuit judge held. (Batson v. Donovan, 4 Barn. & Ald. 21; Birkett v. Willan, 2 id. 356; Bodenham v. Bennett, 4 Price, 31; Lowe v. Booth, 13 id. 329; Brooke v. Pickwick, 4 Bing. 218; Riley v. Horne, 5 id. 217; Duff v. Budd, 3 Brod. & Bing. 177; The Camden & Amboy Rail-Road &c. v. Burke, 13 Wend. 611; Fairchild v. Slocum, 19 id. 329; Dwight v. Brewster, 1 Pick. 50; 2 Kent's Comm. 561, 2, 606, 7; Story On Bailm. 15, § 21; 2 Bl. Comm. 453; Jones Bailm. 46, 7, 49, 120; Foster v. The Essex Bank, 17 Mas. Rep. 479.)
[540] If there had been no special contract about the towing, the plaintiffs would have been at liberty, to prove that the pilot was wanting in skill, because, however diligent and careful the defendants might have been in employing him, they were answerable for a loss happening through his incapacity. But by the special contract the plaintiffs had taken that risk upon themselves.
The view which has been taken of the case renders it unnecessary to examine some of the questions which were so elaborately discussed at the bar.
Judgment was accordingly rendered in favor of the defenV dants, and the plaintiffs thereupon brought error to this court.
5. Here was strong evidence of the most culpable ignorance or carelessness on the part of the persons in charge of the Mew-London, and such as would have justified a jury in finding the fact of gross negligence. (McKinney v. Neil, 1 McLean's Rep. 540; Stokes v. Saltonstall, 13 Peters' Rep. 181; Smith v. Pierce, 1 Louis. Rep. 349; Christie v. Griggs, 2 Camp. Rep. 79; Jeremy's Law Of Carr. 29; Riley v. Horne, 5 Bing. 217; Platt v. Hibbard, 7 Cowen, 497; Camden & Amboy Rail-Road &c. v. Burke, 13 Wend. 611; Ware v. Gay, 11 Pick. 106, 112; Lamb v. Palk, 9 Carr. & Payne, 629; Dygert v. Bradley, 8 Wend. 469; Blin v. Campbell, 14 Johns. Rep. 432.)
6. The degree of negligence, so far as that was material, was for the jury to determine. Even if the question was one of gross negligence, therefore, the circuit judge erred in nonsuiting the plaintiffs, instead of letting the cause go to the jury. (Smith v. Horne, 2 J. B. Moore, 18; 8 Taunt. 144, S. C.; Foot v. Wiswall, 14 Johns. Rep. 304; Jeremy's Law Of Carr. 29; Riley v. Horne, 5 Bing. 217; Bodenham v. Bennett, 4 Price, 31; Lowe v. Booth, 13 id. 329; Colt v. McMechen, 6 Johns. Rep. 160; Beardslee v. Richardson, 11 Wend. 25; Batson v. Donovan, 4 Barn. & Ald. 21; Chitty On Contr. 154, Am. ed. of 1827; Tracy v. Wood, 3 Mason's Rep. 132; Duff v. Budd, 3 Brod. & Bing. 177; Langley v. Newman, 1 Moore & Payne, 583; Moneypenny v. Hastland, 1 Carr. & Payne, 352; Storer v. Gowen, 6 Shepl. Rep. 174; 1 Leigh's N. P. 527; Doorman v. Jenkins, 2 Adol. & Ellis, 256.)
7. The circuit judge excluded competent and proper evidence on the trial, and for this reason, if for no, other, the judgment should be reversed.
N Hill, Jun. <Sp S. Stevens, for the defendants in error.
1. The circuit judge committed no error in rejecting the evidence offered by the plaintiffs on the trial. The evidence as to the advertisement was plainly irrelevant, and was properly rejected for that reason. So in respect to the evidence offered as to the unskilfulness of the pilot. The only facts embraced by the offer were, that the pilot was unskilful, and that he had charge of the New-London when the accident happened. These, if admitted,' would not show that the defendants were .guilty of negligence in employing him. Besides, the offer was to prove negligence in this particular as “ a distinct gravamen or ground of liability and the evidence was therefore inadmissible under the pleadings. The cause of action set forth in the declaration was negligence in steering and managing the New-London after she had started, and negligence in employing an unskilful pilot is a very different charge, requiring different proof both to maintain and rebut it. (Mayor v. Humphries, 1 Carr. & Payne, 251; Breedlove v. Turner, 9 Mart. Lou. Rep. 353, 359, 380; Aldrich v. Brown, 11 Wend. 576; Hullman v. Bennett, 5 Esp. Rep. 226; Fitzsimmons v. Inglis, 5 Taunt. Rep. 538.)
2: The defendants were not common carriers of the Astorogan or her cargo. (Caton v. Rumney, 13 Wend. 387; Alexander v. Greene, 3 Hill, 9; Story On Bailm. 503, § 496, 3d ed.) They never had possession of her as common carriers. Her master and crew remained on board; and the captain of the New-London could not interfere with their posssession. (East India Company v. Pullen, 1 Strange, 690; Brinde v. Dale, 8 Carr. & Payne, 207; Farnsworth v. Packwood, 1 Holt, 207, and note; Story On Bailm. §§ 468, 483, 4.) Nor had the defendants the rights of common carriers in other respects. They could maintain no action for injuries done to the Astorogan or her cargo, for' they had no special property in either. (2 Bl. Comm. 452, 3.) The defendants, moreover, never held themselves out to the public as common carriers, or professed a willingness to incur the risks incident to that relation. (1 Bell’s Comm. 466.) On the contrary, they uniformly insisted upon their right of refusing to carry for any except such as would contract specially in respect to the price of towing, and the risks to be incurred. (Story On Bailm. § 508; Gordon v. Hutchinson, 1 Watts & Serg. 285, 288; 4 Law Rep. 144, 146, S. C.; Sheldon v. Robinson, 7 New-Hamp. Rep. 165.) Nor are the defendants within the reason "of the rule applicable to common carriers, which was established to guard against frauds and thefts that they might be tempted to commit or countenance, in respect to goods under their exclusive charge, while the owner and his servants were absent. (1 Bell’s Comm. 466; Per Best, Ch. J. in Riley v. Horne, 5 Bing. 217; 2 Moore & Payne, 331, S. C.; Story On Bailm. § 491; Per Bockee, Senator, in Van Santvoord v. St. John, 6 Hill, 164, 5; Per Nelson, J. in Orange County Bank v. Brown, 9 Wend. 114.) This rule has always been regarded as harsh and rigorous in the extreme, and courts have in various instances refused to extend it to new cases. (Boyce v. Anderson, 2 Peters’ Rep. 155; Powell v. Myers, 26 Wend. 598, per Verplanck, Senator; 5 T. R. 399, per Gross, J.; 1 Stark. Rep. 148, per Lord Ellenborough; 12 Johns. Rep. 233, per Spencer, J.; 6 Hill. 168, per Rhoades, Senator.)
3. But even if the defendants were common carriers of the Astorogan and her cargo, they had a legal right to contract for exemption from liability as to all losses or injuries which might arise from any cause except their own personal fraud or breach of good faith. (Chitty On Contr. 487, Am. ed. 1842; Story On Bailm. §§ 31, 2, 549; Maving v. Todd, 1 Stark. Rep. 72; Leeson v. Holt, id. 186; Coke Litt. 89, a; Aleyn’s Rep. 93; 4 Coke's Rep. 84; Morse v. Sluce, 1 Ventr. 190; Tyly v. Morris, Carth. 485; Gibson v. Paynton, 4 Burr. 2298; Nicholson v. Willan, 5 East, 507; Harris v. Packwood, 3 Taunt. 271; Orange County Bank v. Brown, 9 Wend. 115.)
4. The permit under which the Astorogan was towed shows that the plaintiffs agreed, for a valuable consideration, to assume the entire risk of every accident which might take place during the voyage, unless it arose from fraud or bad faith on the part of the defendants themselves. (Leeson v. Holt, 1 Stark. Rep, 148, 9; Story On Cont. 153,4; 2 Evans' Poth. 37, 8.) They had a right to contract for exemption from liability for the negligence and even the frauds of those in charge of the New-London; (1 Phill. On Ins. 230, 1st ed.;) and the permit shows they did so.
5. But if the defendants were liable, notwithstanding the permit, for the gross neglect of the captain and crew of the New-London, the evidence was not sufficient to warrant the judge in submitting the case to the jury upon that question. Gross negligence is deemed in law a breach of good faith, or a fraudulent omission of duty; and when the cases speak of gross negligence or fraud, the terms are used as synonymous. (Jones On Bailm. 7, 8, 11, 14, 22, 46, 97 a, 118, 119, 120; Coggs v. Bernard, 1 Comyn’s Rep. 134; 2 Bl. Comm. 452; 1 Cowen’s Treat. 56, 7, 2d ed.; 17 Mass. Rep. 498, 500, 1.) To maintain an allegation of this species of negligence, therefore, the proof should be entirely clear, leaving no room for rational doubt. The law presumes against it, and this presumption, will prevail, unless repelled by unequivocal evidence. (Williams v. The East India Company, 3 East, 192; Kinlock v. Palmer, 1 Rep. Const. Ct. So. Car. 224; Livingston ads. Fox, 2 Bay’s Rep. 520, 1; Marshall v. Lewis, 4 Litt. 140, 145; Hardin v. Bard’s heirs, Litt. Sel. Cas. 346; Starr v. Peck, 1 Hill’s Rep. 272, 3; Sill v. Thomas, 8 Carr, & Payne, 762; Fort v. Metayer, 10 Mart. Louis. Rep. 439; Fleming v. Slocum, 18 John. Rep. 405; Cooper v. Barton, 3 Camp. 5, note; Finucane v. Small, 1 Esp. Rep. 315; Story On Bailm. §§ 212, 213, 339, 410.)
Bockee, Senator.
The principal question in this case, viz. whether the owners of steamboats engaged in the business of towing are liable as common carriers, is one of great public interest. “ A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place.” (Story On Bailm. § 495.) The incidents which the law affixes to this employment are, that the carrier has the-control and possession of the goods, and [545] a qualified property in them, and is responsible for their safe delivery. It is apparent that the defendants in this case had not the custody of the goods on board the canal boat, nor any control over them. The canal boat and her cargo remained in the possession of her master and crew, and the conductors of the steamboat had no power or control over either, except for the single purpose of fulfilling their contract of towing the boat to Albany. The powers, duties and responsibilities of the defendants differ very essentially from those of common carriers. The towing of boats by steam power is a new occupation, consequent upon modern improvements and discoveries. The defendants may be considered as vendors of the steam power, and as pilots held responsible for the skilful and diligent performance of their engagement. It was the opinion of those distinguished jurists, Chief Justice Marshall and Judge Spencer, that the law relating to common carriers was one of great rigor, and that though the extent to which it had been carried might be justified by necessity and policy, it ought not to be extended, or applied to new cases. And accordingly, Chief Justice Marshall refused to apply it to the case of transportation of slaves, although chattels by law. (Boyce v. Anderson, 2 Peters' Rep. 150. See also Roberts v. Turner, 12 John. Rep. 232.) The defendants are not common carriers in fact, nor even bailees for hire.- The service which they undertake to perform is entirely different, and they ought not to be subjected to a rule which would make them liable for losses incurred without any neglect or default of their own.
Laying out of view the alleged contract or permit, the defendants would doubtless be liable for ordinary neglect oh their own part, or on the part of their agents or servants. Justice and policy both require that they should be held responsible to this extent. The immense interests concerned in the business in question demand that the law relating to it should be certain, clearly defined and well understood ; and it is important to make such an application of the law as will tend to secure the exercise of vigilance and skill in the navigation.
Can we give to this permit the effect to discharge the defen[546] dants from all liability ? Chief Justice Bronson was of that opinion, and thought the defendants were not liable even for the gross negligence of the officers and agents on board the steamboat. According to this view, if all the conductors of the steamboat should be drunk or asleep, and the flotilla be cast upon the rocks or the shore, wheresoever the winds or the storm or the steam might carry it, the defendants would be held irresponsible, I consider this proposition unreasonable and unsafe. The defendants must be responsible at least' for gross negligence ; and whether the running of the Astorogan upon a rock, notorious to navigators of the Hudson, which, is bare at low water, and over which at other times the water ripples, was proof of negligence in a greater or less degree, was a proper question for the jury, and ought to have been submitted to them,' Qn this.. ground alone ■ the nonsuit was improperly granted,
. But I go farther, and am of the opinion that, notwithstanding the permit, the exigencies of this case require the owners of the steamboat to respond for losses occasioned by the want of ordinary skill and care on the part of their agents. The course of this business or employment of towing boats by steam is generally entrusted to the management of agents. The public and those contracting with the proprietors have a right to presume that those agents, to whom so. much of property and human life is entrusted, are competent and vigilant. It is a crime knowingly and without due precaution to give employment in this capacity to unskilful, incompetent and careless men; and how can the employment of skilful and vigilant agents, masters, engineers and’ pilots, be better secured, than by holding the proprietors responsible for losses caused by ordinary neglect in the conducting and management of the steamboat?
As to the construction to,be given to the .language of the permit, it may be that the stipulation for towing the Astorogan to Albany 11 at the risk of the master and owners thereof,” was intended to embrace that large class of risks incident to navigation, not arising from the negligence of the conductors of the steamboat. It is equivalent to saying, “ we do not insure,” and [547] is perfectly consistent with the requirement of the law that the defendants, their agents and servants, in conducting their part of the operation, should exercise reasonable skill, care and diligence. It would in my view be preposterous to construe this permit into a license that the managers of the steamboat might be as inefficient, as indolent and reckless as they pleased. True, as a general rule, the operation of law may be controlled by the agreement of the parties; but this rule is' subject to many exceptions and qualifications. If the permit had been intended to exempt the defendants from the consequences of their own negligence, which the law fixes upon them, such intention ought to have been clearly and unequivocally expressed, so as to leave no room for doubt or misconstruction. (Per Van Ness J. in Schieffelin v. Harvey, 6 John. Rep. 180.)
It is doubtless true, as the chief justice states, that these parties might agree that the defendants should inéur an increased liability by answering for the safe delivery of the goods at all events. But the truth of the converse of the proposition, viz. that they might agree upon a total exemption from liability, is not equally obvious, if carried to the extent of protecting negligence and shielding delinquency. In my view there are decisive and controlling considerations of public policy which would render such a contract void if made. But in this case I conceive no such contract was made, and the defendants remained liable for losses occasioned by ordinary neglect, and so the case ought to have gone to the jury.
The nonsuit was improperly granted, and the judgment of the supreme court should be reversed.
Lawrence, Senator.
The defendants were engaged in carrying freight and towing boats on the Hudson river between New-York and Albany, by means of steamboats, in the year 1837. They announced to the public their occupation and business, and sought the patronage of those engaged in commerce on the river and canals.
The circuit judge held at the trial that the defendants' were liable, so far as their towing was concerned, "only for fraud, [548] breach of good faith, or gross neglect; and that they were not common carriers. The supreme court went further, and decided that they were not even liable for gross neglect, and put the case on the ground of contract between the parties; insisting that the entire risk was with the plaintiffs.
I think both the circuit judge and supreme court were clearly in error. Under the most favorable view of the subject, we are bound to hold the defendants responsible for ordinary care and skill, and this is a question which should have been submitted to the jury, on the proof given. The case shows most conclusively, that there was an entire absence of carfe on the part of the defendants or their servants, or a total want of skill, either of which is sufficient to bind the defendants to make good the loss. It would be not only against public policy, but in the highest degree dangerous, to permit the defendants to hold out inducements to"the public to employ them, and not make them responsible for ordinary care and ordinary skill.
Here was a channel near 400 feet in width, where large tows or flotillas were in the habit of passing, without danger or difficulty. On one side were dangerous rocks; but they occupied a position well known to all acquainted with the river, as the evidence clearly shows. If the pilot in the employ of the defendants did not know where these rocks were located, then the defendants are chargeable with want of skill. It was clearly their duty to have one on board the steamer who was well acquainted with the channel, as well as all the shoals and rocks. If he knew the position of these rocks, and run upon them from want of care, the defendants are equally liable. It was their duty to have a man at the helm who would not sleep at his post, and thus endanger the property and lives of those entrusted to their care. This view of the case is sufficient, in my judgment, to make it the duty of this court to reverse the judgment of the court below.
But there is another and still more important view of this case, so far as principle is concerned. I think the courts below were both in error in-supposing the defendants were not common carriers. I am* aware that learned and distinguished jurists [549] have, in certain cases, deprecated the extension of the rules of law on this subject, and I do not seek to extend them. All that the plaintiffs contend for is, that we shall apply these rules, which have been recognized and acted upon for ages, to the case before us. It must be recollected thqt the judicial opinions to which I allude were expressed when this mode of transportation was comparatively unknown to our commerce. And it is well known that those who expressed these opinions did not represent the present views of the judiciary, or of the public, on this subject. A large proportion of the carrying trade upon our lakes and rivers is now done in this way, and in all human probability steam power will ere long to a great extent be used on our canals.
I think the weight of authorities are decidedly in favor of holding the defendants as common carriers. In what respect is this-case different from that of a steamboat receiving on deck a stage-coach with its passengers, or a truckman with his load 1 There the captain of the steamboat has a general control over the vehicles taken on board, and can assign them a place where he chooses, and change it as occasion may require. He has a general control for the purposes of the voyage and no other. So in this case. These boats which were taken in tow were as completely tinder the control and direction of the captain of the steamboat as if they were on the deck of the steamer; and oven more so, because he had a right to command the services of the crew of the sevéral boats, who were, for the purposes of the voyage, a part of the general crew of the flotilla. There are a great variety of cases in which a common carrier may be employed in carrying others engaged in the same occupation. Such is the case before us.
There is no weight in the objection that the defendants could not maintain an action for a trespass committed on the boat in tow. This certainly cannot be true. Suppose another steamer should run into a flotilla of this kind, and damage the boats and their cargoes. Could any one successfully contend that the owners of the towboat could not recover in" an action for the damages sustained ? I think not.
[550] This subject has been ably treated in the Louisiana courts, and they have gone the full length of the doctrine contended for here by the plaintiffs. Situated as the people of that state are, upon one of the greatest inland thoroughfares of the new world, their example should have great weight in deciding this cause. In Smith v. Pierce, (1 Louis. Rep. 349,) will be found a decision in all respects precisely in point. A few extracts from the opinion in that case, delivered by Judge Mathews, will show that the court have taken a correct view of this subject. He says: “ The main question to be settled is, whether the owners of steamboats, used for towing vessels, are to be held responsible as common carriers. This business is so new, that nothing strictly relating to the obligations imposed on those who pursue it, can be expected to be found in ariy legal treatise, or adjudged cases. Their just standing in this respect must be sought in analogy. Common carriers are those whose trade it is to c.arry goods for hire. The trade of the owners of tow-boats in this city, is to convey, carry or tow vessels from this place down the Mississippi to its mouths, over the bar and out to sea; and to bring from certain points near to those mouths, ships or vessels into the port of New-Orleans; and for these services they offer their steamboats to serve the public for hire. According to this definition of a common carrier, and the description of the business and trade of the owners of tow-boats, it is not easy to distinguish the trade and occupations of the one from the other; and if these be similar, the same responsibilities should be attached to the conduct of both.”
The case of Boyce v. Anderson, (2 Peters' Rep. 150,) which is relied upon here by the defendants, was examined by Judge Mathews in the above case of Smith v. Pierce. From the reporter’s head note to Boyce v., Anderson, it appears to have turned on the point that the law regulating the' responsibilities of common carriers does not apply to the case of carrying intelligent beings, such as negroes, for the reason that the common carrier cannot have the same absolute control over them that he has over inanimate matter. Judge Mathews very properly insists that the case had there[551] fore no application to the one he was examining, and in this I think he was clearly right. In conclusion he remarks: “ We are of opinion that the situation of proprietors of towboats and the business they undertake, cannot legally authorize a relaxation of the severity and rigor of the rules applicable to common carriers.
The case of Adams v. The New-Orleans Steam Tow-Boat Co., (11 Louis. Rep. 46,) is one confirming the previous decision made in Smith v. Pierce.
In Sproul v. Hemmingway, (14 Pick. Rep. 1,) the supreme court of Massachusetts admit the correctness of the doctrine laid down by the courts in Louisiana. And Judge Story sustains the same view of the question in strong and emphatic terms. (Story On Bailm. § 495, lst ed.)