Wilmington daily commercial., 1874-12-08

l
OF IEFFERs X co. Va BRADY co.
New CASTLE, Dec. T.
The Superior Court, Court of the General
Sessions and Orphans Court we're opened this
morning at 10 o'clock, Judges wooten Houston
and Wales on the bench.
In the case of Jeferson Il Son Us. Brady Il
Co. ON trial for the past two days, the following
charge was delivered by Judge Wooten
Gentlemen OF he Jury:
This case which you have been called and
sworn to try is an action on the case for the re-
coyery of damages brought by VIM. III. Jefferson,
trading as +. Jefferson and Son, against George
f. Brady Henry Brady Samuel Brady and VIM.
Brady, trading as George F. Brady and Company.
1t appears that the plaintiffs had shipped ON
board the soop Helen cargo of cern, being
| some sixteen hundred and eight bushels, TO be
| carried from Bohemia through the canal to Del
| aware City; that on the 25th day Of March 1878,
| the sloop Helen, commanded by Capt. VIM hob-
| inson, 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, yarously estimated by the |
| witnesses. He blew 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 ting and two Of the barges, there being |
-four in tow, passed the sloop, and the third or
| fourth barge, struck her breaking her bow-sprlt
| and opening her bow nearly to the keel, where |
by she filed and sunk, resulting az is alleged by
the plaintiffs in the loss and injury complained
of by them, for which they claim damages of the
owners of the tug towing the fonr barges.
The plaintiffs contend that the defendants,
WHO are admitted to be the owners of the tug,
had tho 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 coded with the sloop; the
injury and loss being, they say, the result of the
negligence on the part Of the captain having
command and direction and control of the tug.
The defendants resist the plaintiff 3 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 con-
troll and direction OF the captains respectively
! commanding them, aud that therefore the owner
of the barge which colided with the Helen ID re-
ponsibe for any injury Or loss which resulted
from the collision.
The defendants also rely as matter of de-
fenae upon what is called contrbutive negl-
gence that isnegligence and want of care,
skill and diligence on the part Of captain Robin
son in the commmand and management of the
Helen, which they say contributed TO the disas-
ter by which the loss complained OF by the plain
| tiffs was occasoned. These are questions of
law and facts, the one for the consideration and
Judgment of the Court, and the other to be de-
termined 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
81 OF the barge which collided with the Helen
anu ChlSbu ueT 10 hluh. III IL lilht lnt
law in this respect be settled that all persons in
terested 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 aud agent, it becomes
important to know which Of these parties is tC
be considered principal and which the agent
The defendants were engagedin the business
Of towing vessels aud barges through this cana
by both steam and horse or mule power. The,
have a contract with the Canal Company, b.
which they agree On their part to tow all vesse
and bargea applying to them through the canal
either by steam or horse and mule power at the
option of the party applying and their contrac
obliges them to perform tins service for a rat
Of toll stipulated by the Canal Company, and II
- others can engage IN the business or pas
through the canal except those who furnisl
their own motive power The defendants, there
fore, to that extent have the exclusive privlleg
of towing vessels and barges through the cana
and when the owner of a vessel or barge wiBl
es to pass through he is en- necessit ne to emplo
them to take the tow unless he has his own me
tive power to propel his vessel or barge througl
Now it seems to ns that it would be very III
reasonable and hardship ON the business con
munity who use this navigation for tl
purpose of trade in various commot
tiles to be compelled 10 employ any particuii
person TO tow their vessels and barges throug
the canal, who ID not to be responsible for 10
occasloned by their negligence and without ha
ing the privilege OF contracting in reference
damages occasioned by reason of collision wbit
might result in great loss and damage to the
by the default and negligence of the party, TIN
were obliged to employ. Aud the owners
VESSELS and barges wishing to pass them throui
the canal are not only restricted
,ph 10 the person to be employed by the
but are precluded from the pr
elege OF contracting or stipulating to l
bliity III The event of injury aud loss by reas
of collision and negligence, whilst they a
bound to pay the rates Of toll fixed by others,
the of the canal, by the President or boa
of directors Of the company.
In view OF all the facts and the nature Il
character of this peculiar mode of transpor
ton, and there being no settled rule of law
plicable TO such cases the decisions in diifert
States being in conflict in reference to the pa
liabe--it being held in Massachusetts and N
CTS York that the tug s responsible and in Pei
sylvania that the vessel in tow is liable. Most
the cases cited are in Admiralty, in which tn
are principles or propositions not known to
common law. III those cases either or both
the parties may be proceeded against aud b
responsible for injury and loss resulting fl
collision uccaaloned by negligence, whist
common law the case must be one of unm
negligence and the party whose negligence
casoned the collision and consequent injury
loss is liable.
The decisions being in conflict and irrec
cable, and most of them in Admiralty and
ferent in principle from the one before us,
cannot in our Judgment adopt better rule {
more just and reasonable one TO fix and re
the relations and liabilities of those who nj
il business to tow vessels and barges thro
this artificial navigation, and those who em
them under the rules and regulations OF the
nal company, than to treat them az principals
agents, applying to them the law of prime
and agent and holding them liable under il
such.
Ds, We cannot conceive how the operations in
business could be carried on under any o
rule of law. To reverse the proposition
and make the vessels in tow the principals
the tug the agent, would be attended with in
mountable difficulties. There would have
in this case four commanders and one to be c
manded the captain of each barge would
been principal and commander, each per-
giving different orders to the captain of the
Who then in the event Of collision woul
responsible for loss occasioned by it?
necessary that the tow shou Id have some oi
command to control and direct their course
rate of speed, which authority could not be
ercised except by the one in command of
tug and every one in command of a yesse
barge in tow must be subordinate to him
subject to his orders and directions while
Err ! tewed nv him by 40 nteerinp keepine "