dissented on the grounds assigned in the following opinion by him. He said his opinion would be confined to the causes of error assigned which related to that portion of the charge to the jury by the court below and which declared that the owners of the several barges for the time being, and for the purposes of transportation on the occasion in question, were the agents and subordinates of, and under the control and direction of the tug's commander, and that the owners of the tug being the principal, and the owners of the barges being their agents or subordinates, were liable to the plaintiffs below, provided *Page 82 the collision was occasioned by negligence or want of ordinary care, skill and diligence on the part of any person whose duty it was to steer the barges. The persons whose duty it was to steer the barges were the persons in and upon the barges, and they were the same persons who were on them before and at the time when the commander of the tug assumed the duty of towing them through the canal, and they continued on them while the barges were being towed through it, and it was the duty of the commander of the tug to tow the barges with those persons who constituted their crews upon them. He had no authority to displace them and to supply their places as steersmen with other persons. They were the employees of the owners of the barges and were entitled to receive pay from them while passing through the canal in like manner as when passing over the Delaware or Chesapeake Bay. They were not employed in any manner by the owners or the commander of the tug. They could not, therefore, have been responsible for their misconduct to the owners of the tug. Under these circumstances it is not in my opinion reasonable to consider them or the owners of the barges the agents or subordinates of the owners of the tug, or to consider the owners of the tug their principal in any sense whatever. There was no element of agency or of principal and agent in the relation which existed between the owners or the commander of the tug and the owners of the barges or the persons on them.
The law in relation to the business of towing vessels is of recent origin. In my opinion, which, I think, is warranted by the authorities, the contract of the owners of the towing vessel with the owners of the vessel towed, and their obligation to third parties, extended no further than that by no act of those having the towing vessel in charge, willful or negligent, shall the tow or such third party suffer injury or loss. No man is responsible for an act of commission or negligence which he did not do, command, aid, or assist in doing, or neglect to do, having the power to act to the contrary, or which he could not prevent being done. The contract of towage does not invest the towing party with the authority to displace the persons on board of the vessel towed, or from the command or management of it, and *Page 83 imposes no obligation upon them other than to properly tow the vessel, and to give such signs, signals, and directions, and to exercise such careful supervision as to the steering and management of the vessel towed, as may be proper, according to the circumstances as they shall arise. It is the duty of the persons on board of the vessel towed to steer it as near as may be in the wake of the towing vessel, and to obey all proper signs, signals, and directions of those in command of the towing vessel, and to be in a position to receive these signs and directions, and to exercise due care and diligence in these respects. They are bound to be at their posts of duty and to perform it faithfully, and if by their omission to do so, those in command of the towing vessels being themselves in no default, if injury or loss thereby results to the towed vessel or a collision occurs with another vessel and injury or loss thereby results to a third party, the owners of the towing vessel are not chargeable, but the owners of the vessel towed must in the one case suffer the loss and injury, it being occasioned by their own act or by the act of those in their own employ, and in the other case for a like reason they must answer in damages to such third party.
It was the duty of the commander of the tug in this case to connect it with the barges and to furnish them with the motive power properly directed to pass through the canal. If he did, that, and performed those other acts of duty and careful supervision which I have named, his whole duty was fully discharged. If it be said that he might have refused to tow the barges through the canal in case the men whose duty it was to steer them persisted in neglecting that duty, and because he did not do so, but undertook to tow them notwithstanding their neglect, he thereby made himself responsible for their negligence, it must be shown and not assumed that such a responsibility is imposed by a contract of towage. No authority has or can in my opinion be shown establishing that principle. Some weight seems to have been given in the argument, and even in the opinion of the court below, to the circumstance that the Bradys had a contract with the canal company — securing to them the exclusive right of towing vessels through the canal. It may be improper on the part of the canal company to enter into such a. contract, and if by *Page 84 doing so those having a right to pass through the canal shall be delayed, suffer inconvenience, or be deprived of proper facilities for passing through it, the company may by such act become liable in damages to such persons, but this would not change the law or increase their responsibility in respect to those for whom they tow or in respect to third parties passing through or using the canal.
The argument advanced, that if the owners of the tug are not liable for any damage done the sloop in this case by reason of the neglect and negligence of those on board of the barge which collided with it, the owners of the sloop would be without remedy owing to the circumstances that the owners of the barge are unknown and reside out of the State, and no authority existed by which the barge itself could be seized and detained and sold to satisfy such damage, can have no effect in the decision of this cause. We are not to make, but to decide the law. If there be a defect in this respect it arises from the want of legislation on the subject. The court cannot supply the defect. It is not at all uncommon for many barges and for several vessels to be towed at the same time by a single tug or steamer, and to hold that in such a case the tug or steamer or their owners should be liable for the negligence of every crew and helmsman on board of each barge or vessel composing such a tow, on the principle that each of the persons so employed on board of them and each of them, were for the time being and for the purpose of the towing of them the agents or servants of the owners of the tug or steamer would work the destruction of the towing business. This result is not suggested for the purpose of showing what the law is, but that my interpretation of it is more reasonable than the contrary interpretation of it.
In the courts exercising admiralty jurisdiction, where both the towing vessel and the vessel towed are in default, and injury or loss is occasioned by collision with another vessel, they are both liable in damages for it, which are assessed according to the proportion of injury which they have occasioned, or according to the breach of duty of which each has been guilty; but neither in admiralty nor in the common law courts will the towing vessel be held liable for loss or injury occasioned solely *Page 85 by the vessel towed; nor will the vessel towed or its owners he held liable in damages for loss or injury wholly occasioned by the towing vessel. In the common law courts where loss or injury is occasioned by both the towing and the vessel towed, both are liable for the whole amount of damage done, and in such case there is no apportionment of the damages. The principles which apply to cases of collision on navigable rivers, bays, arms of the sea, and in harbors, in my opinion apply to collisions in canals and other artificial channels of water communication. I find no cases to the contrary. The cases referred to in the note to Parson on Mercantile Law do not support the note itself, which seems to recognize a distinction in this respect. I shall now proceed to show that the authorities support the opinions which I have expressed.
In the case of the Cleadon, Lush 13, the court held that the towing and the towed vessel were to be considered as constituting one long steamer for the conduct of which the vessel towed was responsible; that a vessel being so towed in the night time was bound to avoid other vessels, and in such case the motive power was in the towing vessel and the governing power in the vessel towed; and the authority of which was recognized in the case of the Arthur Gordon,Lush. 14, and in subsequent cases in the courts of England. And if such was the correct doctrine and it was applicable to towing generally, the principle he had stated in reference to the liability in the present case would seem to be strengthened rather than weakened by it. In the case of the John Counter, 18 Law Rep. 553, cited in the note to Pars. on Merc. Law, which note was read in the argument, the towing steamer was held responsible for damage done to a brig by collision with a barge in tow of the steamer. She was struck by two of the barges in tow of the steamer and the evidence in the case clearly showed that the responsibility for it rested solely on the pilot and the master of the steamer towing them, and in commenting upon it the court in the opinion says: "Cases may occur in which an accident may arise from the fault of the tow without any error or mismanagement on the part of the tug, and in such case the tow alone must be answerable for the consequences." But in that case there was no recognition of the *Page 86 doctrine of principal and agent as applicable to the owners of the steamer and the men steering the barges. In the case of theSyracuse, 12 Wall. 171, Mr. Justice Davis in delivering the opinion of the court says: "Although the policy of the law has not imposed on the towing boat the obligation resting on a common carrier, it does require on the part of the persons engaged in her management the exercise of reasonable care, caution and maritime skill, and if these are neglected and disasters occur the towing boat must be visited with the consequences. It is admitted in the argument and proved by the evidence that the canal boat was not to blame, and the inquiry therefore is, was the steamer equally without fault?" In that case a barge or canal boat near the rear end of as many as forty in all in tow of the steamer into the harbor of New York was damaged by collision with a vessel lying at anchor in it, and the court held that the commander of the steamer with so long a line of canal boats in tow was guilty of negligence in neglecting to divide it before he attempted to tow such a line through the harbor. There was no recognition in that case of the doctrine of principal and agent as applicable to the relation existing between the steamer and the crew of the canal boat.
In the case under consideration it nowhere appears that those in charge of the tug did not exercise reasonable care, caution, and maritime skill, or that these were neglected, but it does appear that the disaster occurred from the neglect of those in charge of the barges from not steering them in the wake of the tug, and from being absent from their post of duty, so as not to be able to answer the signal of the tug to steer the barges aright when that signal was given by those in command of the tug.
In the case of Sproul v. Hemmingway, 14 Pick. 1, it was decided that the owner of a brig towed lashed to the side of a steamboat employed in the business of towing vessels on the Mississippi River below New Orleans, and which through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had no control, was brought into collision with a schooner at anchor, was not responsible for the damage sustained by the schooner. The court in that case, while very properly holding that the owner of the brig was not responsible *Page 87 for the negligence of the master and crew of the steamboat towing it, very clearly states what would have been their opinion had the brig been towed astern of the steamboat by means of a cable, and the damage had been occasioned by the negligence of those on board of the brig, for they say "that on board a ship towed astern of a steamer by means of a cable something may and ought to be done by the master and crew keeping watch, observing and obeying orders and signs, and if there be any want of care and skill in the performance of these duties and damage ensue, then the case we have been considering does not exist; the damage is then attributable to the master and crew of the towed ship, and they and their owners must sustain it." The jury were so instructed at the trial and it was left to them to find whether the damage was caused by the negligence of the one or the other.
In the case of The Owners of the Brig James Gray v. TheOwners of the Ship John Fraser, 21 Wall. 184, it was decided that where a vessel being towed into port by a steam-tug came into collision with a vessel at anchor, and the steam-tug and vessel at anchor were both in fault, the loss was to be equally divided between them, provided the ship in tow was thrown against the vessel at anchor without any fault or negligence of the vessel in tow. The collision occurred in Charleston harbor. The John Fraser was being towed into it by a steamer and was driven against the James Gray lying at anchor and injured her, for which the owners of the James Gray sued the owners of the John Fraser; and the court said that, "as this collision was forced upon the John Fraser by the controlling power and mismanagement of the towing steamer, and not by any negligence or fault on her part, she ought not to be answerable for the consequences. Suppose, however, that it had not been forced on her by the controlling power and mismanagement of the towing steamer, but by some fault or negligence on her part, is not the inference irresistible that the decision would have been that the owners of the towing steamer were not, but the owners of the John Fraser were answerable for the consequences. It was not contended in that case that the relation of principal and agent existed between the owners of the towing steamer and the master and crew on board of the John Fraser which she had in tow. *Page 88 If such relation had existed between them then the John Fraser would not have been answerable for the consequences had they resulted solely from fault and negligence on her part, or on the part of her master and crew, because if the latter were the agents of the owners of the towing steamer at the time, their fault and negligence would have been the fault and negligence of their principals, the owners of the steamer which had her in tow.
The case of Sturgis v. Boyer et al., 24 How. 110, established these principles that where the tug and tow were both under the command of the master of the tug, who gave all the orders, none of the ship's crew being on board the tug except the mate, who did not interfere with the management of the vessel, the tug is responsible for the whole loss incurred. Second, that a case may arise when both the tow and the tug are jointly liable for the consequences of the collision, as where those in charge of the respective vessels jointly participate in their control and management, and the master or crews of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Third, whenever the tug is under the charge of her master and crew, and in the usual and ordinary course of such an employment undertakes to tow a vessel which for the time being has neither her master nor crew on board, over waters where such accessory motive power is necessary or is usually employed, she must be held responsible for the proper management of both vessels. In that case the court says: "Whether the party charged ought to be held liable is made to depend in all cases of this description on his relation to the wrong-doer. If the wrongful act was done by himself or was occasioned by his negligence, of course he is liable, and he is equally so if it was done by one toward whom he bore the relation of principal; but liability ceases where the relation itself entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged."
The law applicable to this subject in my opinion is correctly stated by Judge Nelson in the case of the Express, 1 Blatchf. C. C. Rep. 365. He says "The business of towing by steamboats is comparatively modern, and has become extensive on all the navigable rivers of the country. The obligations and responsibilities *Page 89 arising out of this kind of navigation and properly resting upon the respective vessels concerned are novel and peculiar, and there may be some difficulty in assigning to each vessel its proper measure of responsibility, a difficulty that is intrinsic and arises out of the peculiar relations which the respective vessels bear to each other in the course of the navigation. In all cases where the tug is under the direction and control of the master and hands on board of the tow, there is no difficulty in assigning to the latter a responsibility for all the damage that may happen through the fault of either vessel. The converse of the proposition will hold equally good where the tow is under the exclusive direction and control of the tug. But where there is a divided command and direction in the navigation of the vessel, there must necessarily be in some measure a divided and several responsibility assigned to each. What that measure shall be is a question of some difficulty. In the case before us the helm of the tow was under the direction of her captain, but all other means used in her navigation were under the absolute control and direction of the master of the tug. Such is understood to be the common relation which these different vessels bear to each other in the business of towing up and down the North River. Now, although the tow and her master and owners are properly chargeable for any injuries that may happen by reason of neglect or unskillfulness in her management in the course of the voyage, it by no means follows that the tug is free from fault. Her power over the navigation of the tow is paramount and controlling, and a corresponding responsibility attaches. Therefore in all cases where the proper and reasonable exercise of that power can be interposed for the purpose of arresting and avoiding the impending injury, she is bound to exert it faithfully and should be held answerable in case of neglect. Her whole duty is not discharged when she is so navigated as to avoid committing immediately the injury herself."
In the present case it would have been perfectly proper for the court below to have instructed the jury that it was the duty of the person in charge of the tug to exercise a watchful supervision with respect to those steering the barges, and to see that they steered the barges properly throughout the entire passage *Page 90 through the canal, and if they neglected so to do, and only attended to this duty when the collision was unavoidable, omitting it before that, then that neglect was such default of duty as to render the owners of the tug responsible as well as the owners of the barges. Whether there was such a want of supervision was a fact upon which the jury might properly have passed.
I therefore am of the opinion that the court below erred in their charge to the jury that the relation of principal and agent or subordinates existed between the owners of the steam-tug and the persons on board of the barge whose duty it was to steer them while being towed by the tug through the canal, and that the owners of the tug were their principals and they were their agents or subordinates in their joint or common undertaking, and as such principals the owners of the tug were liable for any injury which resulted to the sloop and the plaintiffs from the negligence of those whose duty it was to steer the barges. We do not know upon what grounds the jury returned their verdict. It may have been because in their opinion on the facts proved that the collision was occasioned by the mismanagement, want of care, or negligence of those in command of the tug, or it may have been because they believed it was occasioned by the negligence of those whose duty it was to steer the barges. The charge of the court would have warranted the verdict on that ground alone, even if the jury were of opinion that those in command of the tug had been guilty of no default whatever in the matter. It was, therefore, in my opinion too broad, and for that reason erroneous in law. I am accordingly of the opinion that the judgment of the court below in this case should be reversed.