Jefferson v. Brady & Co.

9 Del. 626

• Court: Superior Court of Delaware
• Decided: July 5, 1874
• Status: Published

Opinion

Whiteley.

The only difference between the principles of law recognized, in Courts of Admiralty and Courts of common law in cases of collision, is, that which had been stated, that when the justice and equity of the case require it, Courts of Admiralty will apportion the damages between the parties according to the degrees of fault or negligence of which each has been guilty; but in other respects they are the same. Pars. on Ship. & Admir. 534. If persons having vessels or barges to be towed through the canal are obliged to employ the defendants, or come prepared to do it for themselves, and the defendants are bound by their engagement to the canal company to tow all craft capable of navigating it that may require it of them, are they not bound by the obligations of their undertaking to tow them with due care, skill and diligence-so as to avoid doing injury to them while under tow, and also injury to the canal itself, its locks, bridges, banks, and other property of the company, and to the property of others who, at the same time are using it for a similar purpose ? And if so, are they not, for the time being, so far the principals or masters of all whom they entrust with the responsibility of helping them so to tow the vessels thus committed to their charge, as to become liable on the general principle of law for any damage resulting from their negligence to any of the parties to whom he had referred ? Ang. on Car. sec. 668. The fact that the captain of the tug makes up the.tow, and directs bow the barges shall be coupled together, and the number and length of the tow lines, and prescribes the distances they shall be towed apart from each other, with a view not only to their own safety, but to the safety of the property of others they may meet or pass on their route, all show that he has a master’s charge and control of them, and of all on board of them from the very start. And if he has that charge and control of them, does he not take with it all the legal obligations and liabilities which invariably accompany that relation, so long as it endures, for all injuries resulting from the negligence of others in the due course of their employment in his service ?

As to the alleged contributory negligence of tbe plaintiff, the principle of law was not that any and every degree of contributory negligence on the part of a plaintiff', however minute, trifling or insignificant it might be, is a counterpoise and a legal defence to any amount of negligence exhibited on the part of the defendant, however gross or palpable it may be. Contributory negligence, however, is not to be inferred or presumed, particularly where the negligence of the defendants is manifest and can be defended upon no other ground; but it must be proved, and it must clearly appear, to constitute such a defence and a bar to the action. But there had been no proof of it produced in this case,because it was perfectly clear from the evidence, that, although the captain of the sloop discovered the tug before he reached the draw of the. bridge, he did not see, and could not see, a barge behind her, and did not know that she bad anything in tow astern of her, and it was not until he had cleared the draw and the fenders that he first saw the barges, and after the tug had passed him and the first two, which were steered and keeping their course correctly, were in the act of passing him that he first discovered the last two were not steered, and were yawing dangerously towards him, and it was then too late to do or attempt anything,' but to run his sloop aground on his side of the canal as hard and as speedily as possible, to avoid the imminent danger which he at once saw was then threatening him. Indeed, from the time the sloop cleared the fender of the draw, until he was run into by the third barge in the line, he had not time to tie up the sloop to the snubbing posts to escape the collision, even if that would have sufficed, under the circumstances, to save her from it, but which after all was purely hypothetical and a mere matter of conjecture. The probability, however, was decidedly against it.

The Court,

Wooiten, J.,

charged the Jury. Gentlemen of the Jury:—This case which you have been called and sworn to try is an action on the case for the recovery of damages brought by Wm. H. Jefferson, trading as E. Jefferson & Son, against George F. Brady, Henry Brady, Samuel Brady and William Brady, trading as George F. Brady & Company.

It appears that the plaintiffs had shipped on board the sloop Helen, a cargo of corn, being some sixteen hundred and eight bushels, to be carried from Bohemia, through the canal, to Delaware City. That on the 25th day of March 1873, the sloop Helen, commanded by Captain Wm. Robinson, was passing through the canal, and when approaching the railroad bridge the captain saw a steam tug coming in the. opposite direction some distance off, variously estimated by the witnesses. He blew a signal horn and gave other signals. He passed through the draw of the bridge, steered close into the tow path, and grounded the sloop, telling his driver to hold up. The tug and two of the barges, there being four in tow, passed the sloop, and the third or fourth barge struck her, breaking her bowsprit and opening her bow nearly to the keel, whereby she filled and sunk, resulting, as is alleged by the plaintiffs, in the loss and injury complained by them, for which they claim damages of the owners of the tug towing the four barges.

The plaintiffs contend that the defendants, who are ad mitted to be the owners of the tug, had the control and direction of the barges in tow by her, and are responsible for the alleged injury and loss occasioned by the collision of the barge which collided with the sloop ; the injury and loss being, they say, the result of negligence on the part of the captain having command and direction and control of the tug.

The defendants resist the plaintiffs’ claim for damages arising from the collision, denying that the commander of the tug had the control and direction of the barges being towed by her, and insisting that they were under the control and direction of the captains .respectively commanding them, and that therefore the owner of the barge which collided with the Helen is responsible for any injury or loss which resulted from the collision.

The defendants also rely as a matter of defence upon what is called contributory negligence, that is, negligence and want of care, skill and diligence on the part of Capt. Robinson, in the command and management of theHelen, which they say contributed to the disaster by which the loss complained of by the plaintiffs was occasioned. They contend that when the Captain of the sloop sheered her close in to the tow path or bank, ordinary care and diligence required that he should have tied her up, so that the suction of the water, produced by the tug and first barges when passing, would not have drawn her out from the bank or tow path into deeper water, and in or near the line of the tow in which the other and remaining barges were passing.. They insist that when the tug and first two or three barges passed the sloop, the agitation of the water and the suction thus produced, caused her to swing out from the tow path or bank into or near the line of the tow, which was the result of negligence and want of care and diligence on the part of the Captain óf the sloop in not tying her up,' which negligence and want of care they contend, contributed to the disaster and the loss and injury complained of. These are questions of law and fact, the one for the consideration and judgment of the Court and the other to be determined by the jury.

Here the important question arises whether the owners of the tug are the responsible parties or whether the liability rests upon the owner of the barge which collided with the Helm and caused her to sink ? It is important that the law in this respect be settled, that all persons interested in the matter may know their -rights and privileges and their liabilities. Placing our adjudication of the law on the principles of the common law of principal and agent, it becomes important to know which of these parties is to be considered principal and which the agent.

The defendants were engaged in the business of towing vessels and barges through this canal by both steam and horse or mule power. They have a contract with the canal company, by which they agree on their part to tow all vessels and barges applying to them, through the canal, either by steam or horse or mule power, at the option of the party applying; and their contract obliges them to perform this service for a rate of toll stipulated by the canal company, and no others can engage in the business, or pass through the canal, except those who furnish their own motive power. The defendants, therefore, to that extent have the exclusive privilege of towing vessels and barges through the canal, and when the owner of a vessel or barge wishes to pass through he is ex necessitate obliged to employ them to take the tow, unless he has his own motive power to propel his vessel or barge through.

How it seems to us that it would be very unreasonable and a hardship on the business community, who use this navigation for the purposes of trade in various commodities, to be compelled to employ any particular person to tow their vessels and barges through the canal who is not to be responsible for loss occasioned by their negligence, and without having the privilege of contracting in reference to damages occasioned by reason of collision which might result in great loss and damage to them by the default and negligence of the party they were obliged to employ. And the owners of vessels and barges wishing to pass them through the canal, are not only restricted as to the person to be employed by them, but are precluded from the privilege of contracting or stipulating as to liar bility in the event of injury and loss by reason of collision and negligence, whilst they are bound to pay the rates of toll fixed by others—in the case of the canal, by the President or Board of Directors of the Company.

In view of all the facts and the nature and character of this peculiar mode of transportation, and there being no settled rule of law applicable to such cases—the decisions in different States being in conflict in reference to the party liable—it being held in Massachusetts and blew York that the tug is responsible and in Pennsylvania that the vessel in tow is liable. Most of the cases cited are in admiralty, in which there are principles or propositions not known to the common law. In those cases either or both of the parties may be proceeded against and held responsible for injury and loss resulting from collision occasioned by negligence, whilst at common law the case must be one of unmixed negligence and the party whose negligence occasioned the collision and consequent injury and loss is liable.

The decisions being in conflict and irreconcilable, and most of them in admiralty, and different in principle from the one before us, we cannot, in our judgment, adopt a better rule or a more just and reasonable one to fix and settle the relations and liabilities of those who make it a business to tow vessels and barges through this artificial navigation, and those who employ them under the rules and regulations of the Canal Co., than to treat them as principals and agents, applying to them the law of principal and agent and holding them liable under it as such.

We cannot conceive how the operations in this business could be carried on under any other rule of law. To reverse the proposition and make the vessels in tow the principals and the tug the agent would be attended with insurmountable difficulties. There would have been in this case four commanders and one to be commanded ; the captain of each barge would have been a principal and commander, each perhaps giving different orders to the captain of the tug; who, then, in the event of a collision, would be responsible for loss occasioned by it? It is necessary that the tow should have some one in command to control and direct their course and rate of speed, which authority could not be exercised except by the one in command of the tug; and every one in command of a vessel or barge in tow must be subordinate to him and subject to his orders and directions while being towed by him, by so steering, keeping watch, and observing and obeying orders, signs and signals from the commander of the tug and the whole tow, and so managing his vessel or barge as to keep it in the course or track of the tug, and to use and exercise due care, skill and diligence to avoid collisions or doing injury to the property of others.

Under this rule the defendants are not common carriers and are therefore not held accountable for the extraordinary degree of care and diligence which the law of common carriers imposes upon them : but they are held to the same rule of responsibility as ordinary bailees for hire are. They are answerable for a loss or injury occasioned by a want of ordinary care, skill and diligence. Ordinary bailees may stipulate for a different degree of responsibility from that to which they would be held liable in the absence of an express agreement or contract. They may bind themselves by the law of common carriers, that is, for the safe transportation and delivery of goods at all events, and on the other hand they may contract for any exemption from liability less than the law of principal and agent subjects them to.

Bow, gentlemen, having announced to you the law applicable to this case, I must say to you that the defendants being the owners of the steam tug Swallow, commanded by captain Smithers, and under our ruling the principal, and the owners of the several barges for the time being and for the purposes of transportation on the occa sion in question the agents and subordinates of and under the control and direction of the tag’s commander, they are liable to the plaintiffs for any loss they sustained by reason of the collision between one of the barges she had in tow and the sloop Helen, provided the collision wa,s occasioned by negligence and want of ordinary care, skill and diligence on the part of the commander or captain of the steam tug Swallow then having the barges in tow, or on the part of any persons whose duty it was to steer the barges, unless there was contributory negligence on the part of the sloop’s commander, and this brings me to that branch of the defence set up and relied upon by the defendants. They contend that there was contributory negligence and want of ordinary care, skill and diligence on the part of the Captain of the sloop, and that therefore they are not responsible for the consequences of the collision, though there may have been negligence and .want of ordinary care, skill and diligence on their part. Such, gentlemen, is the law, and if you should be satisfied that there was culpable negligence, and a want of ordinary care, skill and diligence on the part of the commander of the sloop, the defendants are not liable for the loss and injury sustained by the plaintiffs by reason of the collision, whether the colliding would or would not have happened had there been no such contributory negligence or want of care and diligence on the part of the sloop’s commander. Both parties are held to an equal degree of care and diligence, and to entitle one to recover damages for an injury and loss, he must be blameless, and the other the defaulting and culpable party. The law does not measure the amount or extent of the contributory negligence, for it would often be difficult, and, perhaps, impossible to ascertain whether the disaster would or would not have happened had there been no contributory negligence. If, therefore, there be any, it exonerates the other party from liability.

I have now said to you all that is necessary that I should say. I have given you the opinion of the Court upon the law ; the facts are for you to deal with. It is not our province, and therefore I have expressed no opinion in reference to them further than was necessary for the purpose of making myself understood in the announcement of the law.

I have now performed my duty to the best of my ability, and if I have erred there is a remedy for the aggrieved party. Our judgment can be reviewed by a higher tribunal, and I should be very happy to be corrected if I am not right.

It now becomes your duty to perform the responsible part in the case which has devolved upon you, and you will now take the case and give it a full and careful consideration, and upon the law as you have it from the Court and the evidence given you by the witnesses make up your verdict as in your best judgment you shall believe to be just and right, and as the law and evidence not only justifies but requires ; and if there should be error in your finding let it be of the judgment and not of the heart.

The plaintiff had a verdict.