Delaware tribune. [volume] (Wilmington, Del.) 1867-1877, 1874-12-10

10y the argument in the case OF Jefferson Il Co
rs Brady d Co.
Mr.. Bsyard occupied most Of the morning IN
h = romarks to the court, msinly arguing points
VI law aud citing authority to sustain them. lie
spoke briefly to the Jury, claiming that there
hd been contributsry negligence proven on the
part Of the plaintiff which prevented them IRON
recovering. This question of negligence and
70 be the controversy in this
case The plaintiff claiming The tug was tue
piincipal, and the barges towed the agent. and
3, edefense that the barge towed has control over
the tug towing
After the resssembling Of Court, at 3 p, NJ
Mr.. Whitley, for the defences replied. lie ad.
dressed the court at great length, citing nurner-
oas authorities in reply to Mr.. Bayard, and then
turned to the Jury. touching briefly on the facts
contending that no negligence had been proven
rested on Captain smithcrs of
The tug H,oalop. He should have slowed up,
when he first saw the sloop Helen, as it was pio-
ven 800 yards away. He apologized to the jury
by saying he confidently expected verdict At
their hands Of Eleven Hundred and ninety eight
dollars
There being but half hour before adjourn.
ment, Judge Wooten discharged the jury uatil
Monday morning, when the charge Of the Court
| WILL b. given.
| The Superior Court, Court ot the General
Sessions and Orphans Court were opened this
In rning at 10 O'Clock, Judges Wooten, Houston
AND Wales on the bench.
Ia tho case of Jefferson Il sou os Brady
| c.. on trial for the past two days, the following
charge was delivered by Judge wooteu:
Gentlemen OF hs Jury:
This case which you have been called and
sworn to try Is an action on the case for the re-
co. cry OF damages brought by VIM. II. Jefferson,
| ira limo NC r. AFT nd AZ
I. Brady Henry Brady, Samuel Brady and VIM.
Brady, trading a. George +. Brady aud Company
IL .ppears that the plaintiffs had shipped on
board the sloop Helen cargo of corn, being
some sixteen hundred and eight bushels, to be
carried from Bohemia through the canal to Del
aware City; that on the 18th day OF March 1873
the sloop Helen. commanded BY Capt VIM. Rob
| ins N, was passing through the canal and when
approaching the railroad bridge the captain saw
| ssieam tug coming in the opposite direction
| some distance of yariously estimated by the
witnesses. He blew signal horn and gave other
| zig iias-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 bow-sprit
and opening her bow nearly to the keel, where
by she filed and sunk, resulting a. is alleged by
the plaintiffs in the loss and injury complained
OF by them, for which they claim damages OF tie
owners Of the tug towing the -four barses.
The plaintiffs contend that the defendants
who are admitted to be the owners of the tug
hsd the control and direction of the barges in
toy 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 the
eggence on the part of the captain having |
com nand and direction and control of the tug.
tile defendants resist the plaintiffs claim for
damages arising from the collision, denying that |
the commander Of the tug had the control and |
dira. ftnr ft,o 1ar han, tS,, hon,
insisting that they were under tho con |
troll and direction OF the captains respectively |
commanding them, and that therefore the owner |
Of the barge which collided with the Sielen is re-
from the collision.
The defendants also rely matter of de- |
Tense upon what is called contrbutive negl,- |
gence Lat is,neglisence and a want Of care, !
skill aud diligence on the part Of captain Robin
sou III the command and management of the |
He-n, which they say contributed to the dsas- |
tel by which tho loss complained of by the plain
tin, was occasioned. These questions of |
law and facts, the one for the consideration aud |
jua sment Of the Court, and the other to be de- |
ternined by the Jury.
Here the important question arises whether !
the owners OF the tug are the responsible par
ties or whether the liability rests upon the own |
or Of the barge which collided with the Helen |
and caused her to sink. 1t is important that the |
in this respect be settled that all persons in
terested in tue 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 aud agent, it becomes |
Important to know which OF these parties is to |
be considered principal aud which the agent.
The defendants were engagedi in the business |
Of towing vessels and barges through this canal |
by both steam and horse OF mule power. Thoy |
have contract with the Canal Company, by |
winch they agree on ther part to tow all vessels
aud barges applying to them through the canal
either by steam or horse and mule power, at the
nj al ti.nir n+,.rt
obliges them to perform this service for 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
thou own motive power. The defendants, there
fore, to that extent have the exclusive privilege
"f towing vessels and barges through the canal
and when the owner Of vessel or barge wish |
81 H. pass through he is er necessH te to employ
them to take the tow, unless he has his own mo- |
tive power to propel his vessel or barge through
Now it seems t. us that it would be very uu.
reasonable and Il hardship on the business COM
mdhfy who Use this navigation for the
purpose OF trade in various commod- |
ities to be compelled to employ any particular
person to tow their Vessels aud bargsa through |
the canal, who is not to be responsible for loss
occas: oned by their negligence and without hsv-
ing 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 tho party, they
were obliged to employ. And the owners Of |
the canal are not only restricted as
to the person to be employed by them,
hut are precluded from the priv. |
eege OF contracting or STIMULATING as to LA
biilty in the event OF injury aud loss by reason
OF collision and negligence, whilst they are
bound to pay the ratios Of toll fixed by others, in
the 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 transporter |
ton. and there being settled rule of law APP |
tlicable to such cases-the decisions in different |
states being in conflict in reference to the party
labe-t being held in Massachusetts and New |
York that the tug is responsible. and III Penn
sylvania 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 either or both of |
the parties may be proceeded against and held !
responsible for injury and loss resulting from |
collision occasloned by negligence, whilst at
common law the case must be ono of unmixed /
negligence and the party whose negligence oc-
casioned the collision and consequent injury and
loss il liable.
The decisions being in conflict and irrecon-
| cilable, and most Of them in Admiralty and diff |
ferent in principle from the before rs, we !
cannot in our Judgment adopt better rule or a |
more just and reasonable one to fix and settle |
the relations and liabilities Of those who make |
it q business to tow vessels aud barges through |
| this artificial navigation, and those who employ |
| them under the rules aud regulations of the ca
| SohPHhyI tAAoh ~ ioat thStu nia
| agents, applying to them the law Of principal |
ana agent and holding them liable under it as
, puch
We cannot conceive how the operations in this |
business could be carried under any other |
| rule Of law. To reverse the proposition and |
| aud make the vessels in tow the principals and |
| the tug the agent, would be attended with insur
mouniable difficulties. There would have been
| III this case four commanders aud one to be
| manded the captain Of each barge would have |
been principal and commander, each perhaps
giving different orders to the captain Of the tug
WHO then in the event OF collision would be
responsible for loss occssioned by it2 1t is
necessary that the tow shout Id have some one in
nu.uinand to control and direct their course and
rate u. speed, which authority cofld not be ex-
| er,ised except by the one in command OF the
ing and every one in command of vessel or
| barge in tow must bo subordinate to him and
set to his orders and directions while being
towed by him, by 20 steering, keeping watch,
aunt observing and obeying ORDERS signs, and
| nj ,nais from the commander OF the tug and the
wh"le tow, and 30 managing his vessel or barge
M to keep it in tho course track of the tug,
aud to use and exercise due care, skill and dill
sence to avoid collision or doing injury to the
property OF others.
| Under this ruls the defendants are not COM
mo. carriers and therefore not held accountable
for the extraordinary degree Of care and dill
gence which the law of common carriers i'm
poses upon them but they are held to the same
rule Of responsibility ordinary bailees for hire
are, They arc Answerabe for a loss or injury