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The Arctic Fire Insurance Company v. Austin.

CTION against defendant as president of a joint-stock association engaged in towing canal boats between Albany and New York, to recover damages for the loss of a cargo which plaintiff had insured, which loss was alleged to have been occasioned by the negligence of defendant's employees.

The cargo was on board the canal boat J. L. Parsons, in tow from Albany to New York by a steam tug belonging to defendant's company; it was sunk by a collision with another tug owned by the same company. The contract for the towage provided that the towing should be at the risk of the master and owner of the canal boat.

The other facts appear in the opinion. The plaintiff had judgment upon verdict, which was affirmed by the General Term of the Supreme Court, and defendant appealed.

Samuel Hand and Robert Benedict, for defendant.

George W. Parsons, for plaintiff.

ALLEN, J. The canal boat J. L. Parsons, laden with corn owned and shipped by White's Bank of Buffalo, while in tow of the steam tug McDonald, owned and used in the towing of boats and barges by a joint-stock company, of which the defendant was president, on her passage down the Hudson river, was sunk by a collision with a barge in tow of the steam tug Austin, owned by and in the service of the same company, bound up the river, nearly opposite West Point, and between that point and Magazine Point, a few rods above, and the boat and cargo were wholly lost. The plaintiff had insured the cargo of corn, and having paid the loss brings this action, seeking to charge the towing company for negligently suffering or causing the collision and consequent loss and damage. The right of the plaintiff as the successor in interest of the owner of the cargo to maintain the action, if the loss was occasioned by the negligent or wrongful acts of the servants and agents of the towing company, defendants, is not disputed. The owner of the cargo was not the owner of the sunken boat. That was owned by the master in command, who must be assumed to have been a common carrier for hire, responsible for the safe carriage and delivery of the corn to the consignees. Such is the legal presumption upon proof of the ownership of the boat by the master in command, and

The Arctic Fire Insurance Company v. Austin.

the ownership of the cargo by other parties. Courts will not, in the absence of evidence, speculate upon the possible existence of other relations than that of bailor and bailee between the shippers of the cargo and the master and owner of the carrying vessel, or that the shipper had chartered and manned the boat, thus assuming the control, and, pro hac vice, becoming the owner and sponsor for the negligence of the master and crew. It was assumed upon the trial, and so held by the learned judge presiding, that the acts and neglects of the master and crew in charge of the boat Parsons, if they contributed to the loss, would bar a recovery by the plaintiff. For all the purposes of disposing of this appeal, it will be assumed that the disaster was imputable to the faults and neglects of the master and crew of the canal boat, or of those in charge of one or both of the steam tugs, or of the concurrent acts of all contributing to the same result. Although there was an attempt to prove that the collision occurred at or about the break of day, the weight of the evidence is that it was before daylight, and while the darkness of the night continued. It was at a point in the river which was in the shadow of the high banks upon either side, which obscured objects upon the surface of the water, making them, if not invisible, difficult to be seen, and increasing the hazard of the navigation. The boat Parsons was the outer boat upon the larboard side of the front or head of three tiers of four boats each, the boats of each tier being lashed together and towed by a hawser astern of the steam tug McDonald, which furnished the motive power. There was no watch upon the canal boat, nor light upon her, nor was there any light visible from the boats in tow to indicate the presence of a hawser-tow, or that boats were astern or following the tug. There was no signal given from the McDonald on her passing the Austin to indicate that there were boats in tow astern of her, as was sometimes given. The tugs passed each other on the customary side, each passing to the right, at or near the middle of the river, the testimony leaving it somewhat doubtful whether the McDonald was or was not a little to the west or right of the middle. The Austin, immediately on passing the McDonald, changed her course by starboarding her helm and heading more to the left or west, by which a barge propelled by and lashed to her larboard side was brought directly foul of the Parsons, causing the disaster and loss. There was no lookout or watch on the Austin, except in the pilot-house, and the evidence was conflicting whether that was the

The Arctic Fire Insurance Company v. Austin.

proper or the best position from which to discover approaching objects or obstructions in or upon the surface of the water ahead of the vessel. The learned judge submitted to the jury the question as one of fact, whether the captain of the tug was also the captain of the canal boat, that is, whether the canal boat was subject to the orders of the captain of the tug-boat, and as such omitted to take the proper precautions for the safe navigation and for the safe delivery of the freights, "such, for example, as directing and insisting upon a light being put out," and charging them that if they found that question in the affirmative the plaintiff would be entitled to their verdict, and they need not consider any other question in the case. The jury were also charged that if any negligence of the captain of the canal boat co-operated with any negligence of the defendant's agents to produce the collision, the plaintiffs could not recover. In effect, the instructions to the jury were, that if they found that the master and crew of the canal boat had no duties to perform in that capacity, or as the servants and agents of the owners of that boat, but that for the trip and service, and while being towed by the McDonald, they were the servants and agents of the owners of the steam-tug, subject to the control and directions of the master of the tug who was in actual charge as the servant of the defendant of the whole flotilla, they should find a verdict for the plaintiff by reason of the omission to put a light upon the canal boat as a necessary precaution for her safe transit.

That the absence of the light upon the Parsons was one of the primary procuring causes, if not the sole cause of the disaster, might be inferred from the evidence, and the jury may have so found. Had a light been exhibited upon the bow of that boat, the fact that the McDonald had boats and barges in tow by a hawser would have been manifest, and the position of the tow would have been visible from the Austin and the collision avoided. The latter boat would not have been induced, by an apparent absence of all other vessels, to change her course so as to come in contact with the Parsons or any part of the tow of the McDonald. The verdict may, therefore, have passed against the defendant upon the finding of the jury, that the omission to put out a light was negligent, with the additional fact, that the captain of the McDonald was in command of the Parsons, and that the master and crew of the latter were subject to his orders, and were his subordinates for that service and thus the servants and agents of the towing company,

The Arctic Fire Insurance Company v. Austin.

acting under the immediate directions of a superior agent, the master of the steam tug. The interpretation of the contract between the towing company and the master and owner of the boat to be towed, and the legal relations between the parties, and the relative rights and obligations resulting therefrom, were for the court and not for the jury. They were questions of law to which the judge should have responded, and not of fact to be answered by the jury, and their submission to the jury was error, for which the judgment must be reversed, unless the error was immaterial, and this can only be upon the ground that upon the undisputed evidence the tow-boat company were clearly liable for the loss; that the want of skill and care of the servants and agents of the defendants in propelling the Parsons, was the proximate cause of it, or contributed to the loss, and that the collision was, without fault, on the part of the shipper of the corn, his servants or agents, or any for whose acts he is responsible.

The verdict and judgment cannot be sustained in the face of the erroneous instructions to the jury upon a general eharge of negligence in the conduct and management of the tow by the servants and agents of the defendant, but it must be upon the specific act of negligence for which the defendant may have been held by the jury under the charge, viz.: The right to have a light upon the Parsons, and the towing of her through the night without a proper light upon her, or some part of the flotilla to signal the presence of the boats that were in tow by the McDonald. There was evidence for the jury of other acts of negligence, and omissions of duty by the masters of the two steam tugs, but the evidence was not of that conclusive character as to prove the alleged negligence beyond all question, such that a verdict for the defendant would have been against evidence. Had the want of a light at the head of the tow been out of the case, and all the other acts relied upon been proved, a verdict for the plaintiff could not have been directed by the court. The defendant would have been entitled to the verdict of the jury whose province it would have been to pass upon the weight of the evidence, and draw the proper inference from it. The most that can be claimed in behalf of the plaintiff is that there was competent evidence tending to prove a custom to indicate to passing vessels the presence of a hawser tow, by whistles from the steam tug, and that such signal was not given from the McDonald to the Austin, that the vessels were not in a proper position for VOL. XXV. - 29

The Arctic Fire Insurance Company v. Austin.

safety, each being too far to the left of the track in which they should have been; that the Austin had no proper watch or look out on deck or at her bow; that the master and pilot of the Austin had reason from their knowledge of the course and amount of business at that season of the year to suppose that the McDonald had boats in tow astern, and that therefore it was careless and reckless to give the steam tug a direction after passing the McDonald which would bring her or her attendant boats or barges in collision with a hawser tow, if one there was.

But upon all these matters there was conflicting evidence, and upon all the evidence the fact of negligence was to be inferred, and it cannot be said that the evidence justified a direction of a verdict for the plaintiff, or would permit this court to say that the erroneous rulings could not have prejudiced the defendant, for the reason that the verdict must necessarily have been for the plaintiff upon the evidence of and clearly proven acts of negligence other than the omission of a light upon the tow. Negligence is ordinarily a question of fact, and it is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts proved. The fact that the steam tug furnishing the motive power undertook to propel the canal boat "at the risk of the master and owners of " the latter from Albany to New York, did not dispossess the master and crew of the canal boat, deprive the master of his command, or relieve him from an obligation to use every necessary precaution, and do whatever was necessary to guard against the perils of the navigation, and insure a safe transit. Neither did it constitute the proprietors of the tow-boat common carriers, or make them liable for the wrongful or negligent acts of those in charge of the canal boat within the doctrine of respondeat superior. Under a contract for a service like that undertaken by the defendant's company, the law imposes certain duties as well upon the master of the canal boat as upon the master of the towing vessel. Each vessel, the towed and the towing, is under an implied obligation to use proper skill and diligence in the care and management of the respective vessels, and not to increase the risks or peril of the service by neglect or misconduct, and if in the course of the service the one receives injury caused in part by the neglect of the other boat, to which the injured vessel has by neglect or fault contributed, there can be no recovery. A boat or vessel may be so attached to the propelling vessel that she is helpless, and the mas