The daily gazette., 1874-12-08

horse or mule power. They have con-
tract with the canal company, by
which they agree on their part to tow
oil vessels and barges applying to them
through the canal, either by steam or
horse and mule power, at the option
OF the party applying, and their con-
tract obliges them to perform this ser
vice for rate Of toll stipulated by the
canal company, and no others can en-
gage In this business, or pass through
the canal except those who furnish
their own motive power. The de-
PENDANTS, therefore, to that extent
have the exclusive privilege Of towing
vessels and barges through the canal
and when the owner Of We ssel or
barge wishes to pass through, he Is er
neeess'tate to employ them to take the
tow, unless he has his own motive
10 propel his vessel or barge through.
The decisions being in conflict and
lrreconcilable and most OF them in ad-
miralty and different in principle from
the one before us we cannot In our
Judgement adopt better rule or q
more just and reasonable one to fx and
settle the relations and liabilities of
those who make 1t business to tow
vessels and barges through this artif-
cial navigation, and those who employ
them under the rules and regulations
OF the canal company, than I'd 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 opera.
tions 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 COM
manders and one to be commanded
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 a collision would be responsi-
BILE for loss occasioncd by it 1t 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
vessel or barge in tow must be subor-
dinato to him and subject to his orders
and directions while being towed by
him, by so steering, keeping watch,
and observing anil obeying orders,
signs, and signals from the commander
of the tug and the whole tow, and 80
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 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 loss or in
jury occasioned by the want of ordi-
nary care, skill and diligence. Ordi-
nary bailces may stipulate for differ
ent degree of responsibility from that
which they would be held liable in the
absence of an express agreement or
contract. They may bind themselves
by the law OF common carries, that is,
for the safe transportation and delivery
of goods at all coe1ats, and on the other
hand they may contract for any exemp-
tion from liability less than the law of
principal and agent subjects them to.
| Now, gentlemen, having announced
to you the law applicable to this case,
l must say to you that the defendants
being tho owners of the steam tug
Snalloto, commanded by Capt. Smith
crs, 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 occasion in
question the agents and subordinates
OF and under the control and directiQn3
of the tugs commander, they are liahae
to the plaintiffs for any loss they sus-
taincd by reason of the collision be-
tween one of the barges she had in tow
and the sloop Helen, prooSded the collis-
ion was occasioned by neglience and
want of ordinary care, skill and dill
gence on the part of the commander
or captain of the steam tug Spultoao
then having the bargcs in tow, or on
| the part of any persons whose duty ii
was to steer the barges, unless there
was contributive negligence on the
part of the sloop's commander, and this
brings me to that branch Of the defense
set up and relied upon by the defend
ants. They contend that there was
contributive negligence and want OF
ordinary care, skill and diligence on
the part of tho captain of the sloop,
and that, therefore, they are moi re
sponsibie 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
your should be satisfied that there was
culpable negligence and q want Of ordi-
nary care, skill and diligence on the part
Of the commander of the sloop, the de-
fendants are not liable for the loss and
injury sustained by the plaintiffs ty rea-
son Of the collision. Whether the COLI
sion would or would not have happened
had there been no such contributive neg
ligence 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
defaulter and culpable party. The law
does not measure the amount or extent
of the contributive negligence, for it
would often be difficult and perhaps i'm