[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 238 The different grounds on which the court below granted the motion for a nonsuit embrace, substantially, these two propositions: 1st. That the plaintiff had no cause of action against the defendant because there was no privity of contract between them; and, 2d. Because the case was exclusively within the jurisdiction of the United States courts. Neither of them is well founded.
1st. It is true that the defendant's agreement was made with Cavanaugh alone, and that it did not obligate him to the performance of "any contract duty to the plaintiff," as is stated in one of those grounds; but that fact did not justify him, in the execution of that agreement, to do his work so *Page 241 negligently and carelessly as to injure the person or property of any other party, not himself in fault, lawfully on board of Cavanaugh's scow. His liability to the plaintiff arises from the negligence and want of care, by his servants, in the management of the tug while in the prosecution of his business, and is not based on the breach of any contract made by him with the plaintiff. Under the rule or principle applied by the judge on the trial and affirmed by the General Term, a hackman, employed by a party to carry him from his residence to a railroad station, would be absolved from all responsibility, while in the performance of that obligation, for injuries caused by or resulting from his negligence and carelessness in running over a foot passenger crossing the street with proper care and free from all imputation of negligence. It is clear that in such a case there would be no privity of contract between the hackman and the injured party; but it could not be claimed that the want of such privity would exempt the wrong-doer from liability for the wrong done by him.
2d. Assuming that the plaintiff's cause of action was cognizable in the courts of the United States, their jurisdiction was not exclusive. The learned judge, who delivered the opinion of the General Term of the Supreme Court, held, and properly, that the case came within the saving clause of the ninth section of the judiciary act of 1789, passed by Congress (1 U.S. Stat. at Large, 76 and 77) "saving to suitors, in all cases, the right to a common-law remedy when the common law is competent to give it;" and conceded that the courts of this State had jurisdiction of it, unless the act of Congress entitled "An act to limit the liability of ship-owners and for other purposes," passed March 3d 1851 (9 U.S. Stat. at Large, 635, 636, and Brightly's Digest, p. 834) is applicable to it. It is sufficient, in support of such conceded jurisdiction, to cite the case of Steamboat Company v.Chase (16 Wallace, 522, etc.), decided in December, 1872, without referring to previous cases to the same effect; and the following considerations will show that the act referred to by him does *Page 242 not prevent, or in any manner limit, restrict or qualify that jurisdiction; it confers no new right or remedy. Its object, as indicated by its title, was to relieve ship-owners from their onerous responsibilities as common carriers; and the decision in the case of the steamboat Lexington, which was burned on the Long Island Sound, reported in 6 Howard, 344, under the title of TheNew Jersey Steam Navigation Company v. The Merchants' Bank ofBoston (6 How., 344), is said by Justice NELSON, in Moore v.American Transportation Company (24 id., 1), and by Justice MILLER, in Walker v. The Transportation Company (3 Wallace, 150), to have led to its enactment. The first section declares that no owner or owners of any ship or vessel shall be liable for any loss or damage happening to any goods or merchandise shipped, taken in, or put on board thereof, "by reason or by means of any fire happening to or on board the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners, provided, that nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners." And the third and fourth sections, which are deemed to control this case, are in the following terms, viz.: "§ 3. The liability of the owner or owners of any ship or vessel, for any embezzlement, loss or destruction, by the master, officers, mariners, passengers, or any other person or persons, of any property, goods or merchandise shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners, respectively, in such ship or vessel, and her freight then pending."
"§ 4. If any such embezzlement, loss or destruction, shall be suffered by several freighters, or owners of goods, wares or merchandise, or any property whatever, on the same voyage, and the whole value of the ship or vessel and her freight for the voyage, shall not be sufficient to make compensation to *Page 243 each of them, they shall receive compensation from the owner or owners of the ship or vessel, in proportion to their respective losses; and for that purpose the said freighters and owners of the property, and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner or owners of the ship or vessel may be liable, amongst the parties entitled thereto. And it shall be deemed a sufficient compliance with the requirements of this act, on the part of such owner or owners, if he or they shall transfer his or their interest in such vessel and freight for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person or persons who may prove to be legally entitled thereto; from and after which transfer all claims and proceedings against the owner or owners shall cease."
The second section provides that no owner or master of any ship or vessel shall be liable for certain enumerated valuable articles of property, without a specification in writing of the true character and value thereof furnished by the shipper, and an entry thereof in the bill of lading therefor. The eighth section declares that the act shall not apply to the owner or owners of any canal boat, barge or lighter, or to any vessel of any description whatever used in rivers or inland navigation. Other sections provide that a charterer of a ship or vessel shall, in certain cases, be deemed the owner thereof, within the meaning of the act, and that the exemption of the owner shall not affect the liability of the master, or mariner, or any parties actually guilty of negligence or wrongful conduct.
There is nothing in the third or fourth sections, above set forth, that can be construed into a declaration or enactment that the rights of action which a party may have against a ship-owner shall be enforced in any particular court, or that the remedy for the enforcement of such right by the injured party was intended to be in any manner changed; but the general object and intent of the provisions contained therein *Page 244 was to restrict and limit the liability of such owner as a common carrier. Whether the act, within the principle decided inNorwich Company v. Wright (13 Wallace, 104, etc.), in any degree or at all affects or is applicable to such a case, as the present, where there is no ground or claim for saying that the defendant owed any duty or obligation as a common carrier, to the plaintiff (it appearing that plaintiff's damage was not sustained on board of the defendant's vessel), it is unnecessary to decide on the present appeal. Its provisions, if applicable, could only be used, or interposed, as a partial defence. Its effect was, as has been before stated, to reduce and limit the plaintiff's recovery to the mitigated or modified liability of the defendant as prescribed in and by the third and fourth sections above set forth. It does not entirely defeat the right of recovery or operate as an absolute bar to a right of action. The nonsuit was, consequently, improperly ordered.
It follows that the judgment, entered on that order, must be reversed, and a new trial is granted, costs to abide the event.