Stevens v. the White City

• Decision Date: 14 March 1932
• Docket Number: No. 217,217
• Citation: 285 U.S. 195,52 S.Ct. 347,76 L.Ed. 699
• Parties: STEVENS v. THE WHITE CITY
• Court: U.S. Supreme Court

285 U.S. 195

52 S.Ct. 347

76 L.Ed. 699

STEVENS

v THE WHITE CITY.

No. 217.

Argued Jan. 6, 1932.

Decided March 14, 1932.

[Syllabus from pages 195-196 intentionally omitted] Messrs. Neil P. Cullom and William F. Purdy, both of New York City, for petitioner.

Mr. Chauncey I. Clark, of New York City, for respondent.

Mr. Justice BUTLER delivered the opinion of the Court.

Petitioner, the assignee of the owner of a forty-five foot motorboat, the Drifter, filed a libel in admiralty in the Southern district of New York against respondent to recover for injury sustained by the former while being towed by the latter. The court held that the tug was a bailee of the tow, and that, it having been shown by the evidence that the former received the latter in good condition and delivered it damaged without being able to account for the injury, there was a presumption of negligence on the part of the tug, and that she must be held liable. 35 F.(2d) 1006. The Circuit Court of Appeals held the towage contract did not put the tow in bail to the tug, and that the mere fact of injury created no presumption of negligence, and reversed the decree. 48 F.(2d) 557.

Petitioner maintains that the tug was bailee for hire, and that, by proving the tug received the tow in good order and delivered it in a damaged condition, he made a prima facie case of negligence which cast upon such bailee the burden of showing the circumstances surrounding the damage. And he insists that, even if the presumption did not so arise, there was ample proof of negligence on the part of the owners of respondent.

The facts supported by the evidence, so far as they are material to these contentions, may be stated briefly as follows:

October 13, 1925, Roos, an employee of the Consolidated Shipbuilding Corporation which had just completed the Drifter, made an agreement with Alexander Simpson for its towage from the builder's plant at Morris Heights in New York City of Port Newark alongside the steamer Suscalanco on which it was to be shipped. Later Simpson told Roos that the White City, an excursion boat owned by Herbert Simpson and one Rhodes, would do the towing. Roos told Simpson that the boat should be at the plant at 6 o'clock in the morning. Her owners brought her about 8 and were the only persons aboard at any time here involved. Employees of the builder as- sisted in attaching the Drifter, then in good condition, to the White City by a forty-foot rope. A cradle in which the former was to be stowed on the deck of the Suscalanco was attached by another rope about the same length to the stern of the Drifter. The builder put an employee, one Weston, on the Drifter, merely, as petitioner maintains, to tend lines when she was brought alongside the Suscalanco.

Respondent took the tow down the East River; the cradle became detached at Hell Gate; reattaching it caused delay of fifteen or twenty minutes, but no damage occurred to the Drifter at that time. Respondent continued down the river, across the Upper Bay, through Kill van Kull and into Newark Bay, where, about 5 o'clock in the afternoon, she sighted the Suscalanco going out to sea. Then the tug went to Fisher's Dock in Bayonne, and, her owners having learned by telephone that the shipment could be made on a later steamer, remained there over night. The Drifter was tied alongside the pier with fenders to prevent injury. Weston, with the acquiescence of the owners of the tug, went home for the night, but did not return. Simpson testified that on the morning following he went aboard the Drifter to steer her while she and the cradle were being towed to destination; that before leaving the dock he inspected her, and that she was in the same condition as when received. When they arrived at Port Newark, about 8 in the morning, the Drifter's hull planking was broken or damaged amidship on the starboard side just above the water line causing a dish-shaped depression about three-quarters of an inch deep, roughly circular, and about twelve or fourteen inches in diameter. At the trial it was suggested by way of explanation that the hole might have been made by a piece of driftwood of which there was much in the bay. But there was no evidence to show, and the trial court found that neither Rhodes nor simp- son could explain when, how, or where the damage happened.

Decisions of this Court show that under a towage contract the tug is not a bailee of the vessel in tow or its cargo. And it is established here and by numerous rulings of lower federal courts that evidence showing a tug's receipt of a tow in good order and delivery in damaged condition raises no presumption of negligence.

The supplying of power by a vessel, usually one propelled by steam, to tow or draw another is towage. Many vessels, such as barges and canal boats, have no power of their own and are built with a view to receiving their propelling force from other sources. And vessels having motive power often employ auxiliary power to assist them in moving about harbors and docks. Benedict on Admiralty (5th Ed.) § 100.

The tug does not have exclusive control over the tow, but only so far as is necessary to enable the tug and those in charge of her to fulfill the engagement. They do not have control such as belongs to common carriers and other bailees. They have no authority over the master or hands of the towed vessel beyond such as is required to govern the movement of the flotilla. In all other respects and for all other purposes the vessel in tow, its cargo and crew, remain under the authority of its master; and, in emergency, the duty is upon him to determine what shall be done for the safety of his vessel and her cargo. In all such cases the right of decision belongs to the master of the tow and not to the master of the tug. A contract merely for towage does not require or contemplate such a delivery as is ordinarily deemed essential to bailment. The Webb, 14 Wall. 406, 414, 20 L. Ed. 774; Eastern Transportation Line v. Hope, 95 U. S. 297, 299, 24 L. Ed. 477; The L. P. Dayton, 120 U. S. 337, 351, 7 S. Ct. 568, 30 L. Ed. 669; The Burlington v. Ford, 137 U. S. 386, 391, 11 S. Ct. 138, 34 L. Ed. 731; The J. P. Donaldson, 167 U. S. 599, 603, 604, 17 S. Ct. 951, 42 L. Ed. 292; Alexander v. Greene, 3 Hill (N. Y.) 9, 19; Wells v. Steam Navigation Co., 2 N. Y. 204, 208. Cf. American Ry. Express Co. v. American Trust Co. (C. C. A.) 47 F.(2d) 16, 18; Bertig v. Norman, 101 Ark. 75, 81, 141 S. W. 201, Ann. Cas. 1913D, 943; Sawyer v. Old Lowell National Bank, 230 Mass. 342, 346, 119 N. E. 825, 1 A. L. R. 269; Blondell v. Consol. Gas Co., 89 Md. 732, 746, 43 A. 817, 46 L. R. A. 187; Gilson v. Pennsylvania R. R. Co., 86 N. J. Law, 446, 449, 92 A. 59; Fletcher v. Ingram, 46 Wis. 191, 202, 50 N. W. 424. The owner of the Drifter did not surrender to respondent any right of control that does not pass in virtue of a contract merely for towage. The fact that the man put aboard by the builder did not remain to the end or that the owner did not choose to keep some one on the tow is immaterial.

Petitioner's claim against respondent is not for breach of contract, but one in tort. His allegations and proof in respect of the agreement between the parties were made by way of inducement to his real grievance which was the damage to the Drifter claimed to have been caused by negligence of the respondent. It has long been settled that suit by the owner of a tow against her tug to recover for an injury to the tow caused by negligence on the part of the tug is a suit ex delicto and not ex contractu. The Quickstep, 9 Wall. 665, 670, 19 L. Ed. 767; The Syracuse, 12 Wall. 167, 171, 20 L. Ed. 382; The J. P. Donaldson, supra, 167 U. S. 603, 17 S. Ct. 951, 42 L. Ed. 292; The John G. Stevens, 170 U. S. 113, 125, 18 S. Ct. 544, 42 L. Ed. 969; The Brooklyn, Fed. Cas. No. 1,938, 2 Ben. 547; The Deer, Fed. Cas. No. 3,737, 4 Ben. 352; The Arturo (D. C.) 6 F. 308. In the case last cited Judge Lowell said (page 312 of 6 F.): 'These cases of tow against tug are, in form and fact, very like collision cases. The contract gives rise to duties very closely resembling those which one vessel owes to others which it may meet.' In The John G. Stevens, supra, this court cited The Arturo approvingly and said (page 126 of 170 U. S., 18 S. Ct. 544, 549): 'The essential likeness...