Bisso v. Inland Waterways Corporation

• Decision Date: 16 May 1955
• Docket Number: No. 50,50
• Citation: 99 L.Ed. 911,349 U.S. 85,75 S.Ct. 629
• Parties: William A. BISSO, Jr., Receiver, New Orleans Coal and Bisso Towboat Co., Petitioner, v. INLAND WATERWAYS CORPORATION
• Court: U.S. Supreme Court

349 U.S. 85

75 S.Ct. 629

99 L.Ed. 911

William A. BISSO, Jr., Receiver, New Orleans Coal and Bisso Towboat Co., Petitioner,

v INLAND WATERWAYS CORPORATION.

No. 50.

Argued Feb. 28, 1955.

Decided May 16, 1955.

Mr. Eberhard P. Deutsch, New Orleans, La., for petitioner.

Mr. Ralph S. Spritzer, Washington, D.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The question presented is whether a towboat may validly contract against all liability for its own negligent towage. Since there is no controlling statute the question must be decided as a part of the judicially created admiralty law. Federal courts have disagreed as to whether there is or should be a judicial rule invalidating such contracts. Calling attention to this uncertainty, the District Court, sitting in admiralty, sustained a contractual provision exempting respondent towboat owner from liability for negligence and entered judgment accordingly. 114 F.Supp. 713. The Court of Appeals affirmed. 5 Cir., 211 F.2d 401. We granted certiorari to settle the question. 348 U.S. 811, 75 S.Ct. 24.

The record including the findings of fact shows: Petitioner's oil barge Bisso while being towed up the Mississippi River by the respondent's steam towboat Cairo collided with a bridge pier and sank. At the time, the barge had no motive power, steering apparatus, officers or crew, its movements being completely controlled by the Cairo. Negligent towage by those operating the Cairo caused the collision. Consequently, respondent, owner of the Cairo, would have been required to pay petitioner damages unless relieved of liability by certain clauses in the towage contract. One provides that the towing movement should be at the 'sole risk' of the barge, and a second provides that masters, crews and employees of the towboat Cairo should 'in the performance of said service, become and be the servants' of the barge Bisso. The Court of Appeals construed both these clauses as relieving respondent from liability for its negligence and held both valid.

A release-from-liability clause in a towage contract was first considered by this Court in 1871 in The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382. There negligent towage by the Syracuse damaged a canalboat being towed. To escape liability owners of the towboat relied on a contractual agreement that 'the canalboat was being towed at her own risk.' Notwithstanding the agreement, this Court held that the towboat 'must be visited with the consequences' of its negligence.¹ For many years The Steamer Syra- cuse seems to have been generally accepted as either (1) construing a contract to 'tow at own risk' as not including an exemption from negligence, or (2) holding invalid as against public policy a contract which exempts a tower from his negligence.²

In 1909 The Steamer Syracuse was repudiated by the Second Circuit in The Oceanica, 170 F. 893, 894. That court construed a contract requiring a towed vessel to 'assume all risks' as exempting the tower from responsibility for its negligence; it also held, over strong dissent, that the contract was not invalid as against public policy. And on rehearing the court conceded that 'the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions.' The court went on to express hope that the question would 'be set at rest in this case by the Supreme Court.' Certiorari was denied,³ however, and courts in the Second Circuit continued to follow the newly announced Oceanica doctrine.⁴ But other circuits continued to refuse to allow towboats by contract to escape liability for their negligent towage.⁵

It was in that state of intercircuit conflict that this Court again, in 1928, considered the effect of a contract claimed to exempt a towboat from its negligence. The Wash Gray, 277 U.S. 66, 48 S.Ct. 459, 460, 72 L.Ed. 787.⁶ The contract involved provided that the towboat should not be "responsible in any way for loss or damage" to the Wash Gray, the vessel being towed. This Court was urged to follow The Oceanica. But counsel for the Wash Gray, relying on The Steamer Syracuse, insisted that recovery for 'actionable negligence is not barred by release in contract for towage.'⁷ Without mention of The Oceanica this Court said: 'We do not think that the towing contract has the effect claimed for it by the companies. It did not release the (towboat) from any loss or damage to the Wash Gray due to the negligence of the master or crew of the towing vessel * * *. The rule laid down by the court in The Steamer Syracuse * * * covers the point.' 277 U.S. at page 73, 48 S.Ct. at page 460. The contracts in The Steamer Syracuse and The Wash Gray were worded quite differently, and there is little indication that the 'rule' the Court had in mind was one of mere contractual interpretation. Rather a public policy objection to such contracts was indicated by the Court's quoting from that part of The Steamer Syracuse opinion which pointed out that despite the contract there the towboat had to bear the consequences of its negligence even though the law had not imposed on it the obligations resting on a common carrier.⁸

It is nevertheless argued that The Steamer Syracuse and The Wash Gray did not announce a rule of public policy against release-from-negligence contracts but decided no more than what the towage contracts in those cases meant. Strong arguments can be made in support of this contention but we think stronger arguments can be made against it. The Steamer Syracuse was decided in an era of manifest judicial hostility toward release-from-negligence contracts particularly those made by businesses dealing widely with the public and having potential monopolistic powers.⁹ That hostility caused this Court two years later to declare that public policy forbade common carriers to make such contracts.¹⁰ The next year telegraph company contracts were brought under the same ban, although the Court stated they were not common carriers.¹¹ Largely because of this general judicial attitude and the influence of The Steamer Syracuse no towage release-from-negligence clause appears to have been enforced by any court for 38 years. During that period and later enforcement was refused in two ways—either by giving such contracts a very narrow construction or by holding them to be against public policy. One court even expressly declared it to be 'contrary to public policy to so construe' a contract that a tower could be allowed to go clear of all liability for his own negligence.¹² When the Second Circuit belatedly departed from The Steamer Syracuse other courts still refused to enforce towers' stipulations against their negligence. And when this Court was urged in The Wash Gray to repudiate The Steamer Syracuse by following The Oceanica the answer was an emphatic reiteration and approval of the language and holding of The Steamer Syracuse. Viewed in light of this history, we think The Steamer Syracuse, The Wash Gray and intervening lower court cases together strongly point to the existence of a judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence.¹³ Because of this judicial history and cogent reasons in support of a rule outlawing such contracts we now, despite past uncertainty and difference among the circuits, accept this as the controlling rule.

This rule is merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negligence contracts in many relationships such as bailors and bailees,¹⁴ employers and employees,¹⁵ public service companies and their customers.¹⁶ The two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.¹⁷ These two reasons are no less applicable today than when The Steamer Syracuse and The Wash Gray were decided. And both reasons apply with equal force whether tugs operate as common carriers or contract carriers.¹⁸ The dangers of modern machines make it all the more necessary that negligence be discouraged. And increased maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.

The practical result of leaving towers wholly free to contract against all liability for their negligence is strikingly illustrated in an English case. The Port of London controlled and operated all tugs in the harbor and by law no ship could enter without the aid of Port Authority tugs. But no shipowner could get a Port tug unless he first signed a contract agreeing to be liable for all damages caused by the negligence of the tug's employees. Under such a contract the court allowed the Port Authority to recover damages from a ship towed for injuries to the Port's tug caused by negligence of the Port's employees running the tug.¹⁹ Such a result would be impossible under the rule we accept as controlling.

It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311.²⁰ We disagree. Unlike the Steamer Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should not be liable for his negligent pilotage.²¹ Sun Oil construed this contract as relieving the tugboat owners from all liability for negligence of the tug captain while piloting Sun Oil's vessel and held the...