(dissenting):
I am unable to concur with the court that this judgment should be affirmed. At the end of the plaintiff’s case the defendants moved to. dismiss the complaint on the ground that no evidence having been adduced to show that the defendants were in control of the lighter or of the men on board of her; and that as this boat was leased ’ to and hired by Mr. Schaenawelf, who had charge of the towing, and had entire control- over her, the defendants were not responsible for any negligence in unloading., the boat. This motion was denied, and the defendants excepted: After all the testimony was in,- this motion was renewed and again denied, to which the defendants excepted.
I think this denial was error and' that the complaint should have been dismissed for the grounds stated. The evidence was entirely undisputed that the defendants, owning this lighter and employing, the men in charge of her by the month, were applied to, to transport certain articles from New York to Newark, and refused to do that work; but offered to charter a boat to the person wishing such transportation, at fifteen dollars per day, which was to include the services of the two men oh board of the boat. That was agreed to, and the boat was placed, at the disposal of the'charterer. From that time on the charterer directed' the movements of the boat. He directed what goods .should be placed on board of her; he directed how they should be loaded and unloaded, and had entire charge and control both of- the boat and the men upon her. The instances narrated in the testimony, in which the defendants seem to have paid *265some attention to the existence of this boat during the period for which she was chartered, do not furnish the slightest evidence of any control over the boat by the defendants. ■ At one time the defendants’ superintendent went to the dock where the boat was to load, to ascertain if she was safely there and if everything was right! with her. There certainly was no attempt to control the use of the boat or the action of the captain at this time. It seems that the boat was laid up for a month or more, in consequence of the ice, and that one of the defendants went to Newark to see what had become of her, and.as a very large bill had accrued, in conseiquence of the delay, he told the captain to collect the bill and not to allow the goods to be removed until it was paid. Whether or not the captain had the power, under the agreement with the charterer, to withhold the goods on the boat until the amount was paid, would be a serious question, not necessary to discuss. But certainly there was here ho interference with the management of the boat by the charterer, or with the method which he chose to adopt by which it was to be loaded or unloaded. The work that this captain was doing at the time of the accident, the negligent performance of which, it is claimed, caused the injury, was not work connected at all with the navigation of the boat, or with its preservation or protection, and was not work in which these defendants had the slightest interest. It might well be that this captain owed a duty to the defendants to navigate the boat properly and to protect it during the period covered by the charter, and that for neglect in the performance of that duty the defendants would be liable. When we come, however, to the duty of putting aboard or taking off articles transported by the boat during the period for which she was chartered to another, it seems to me that with that the defendants had nothing to do. They were under no duty to load this boat or to unload her. They assumed no responsibility to the plaintiff or to any one else for the safe and proper loading or unloading of the boat. That they refused to do when they refused to undertake the transportation of the articles in question. When, the boat arrived at the.dock where she was to be loaded, could the charterer have placed these articles upon the dock and insisted that these defendants should load them upon the lighter under the contract *266between them ? Clearly not. And so, when the boat arrived at her destination, could the charterer have insisted that it was the duty of the defendants, at their own cost and expense, to unload the boat, and place the goods upon the dock ? Clearly, this was not a part of the defendants’ contract by which they chartered- the- boat to the-charterer at a certain price per day. When, therefore, the captain of the boat, at the request, either express or implied, of the charterer, assisted his men in -unloading the boat, they were not employed in doing any work which the defendants wére bound or had assumed to do, but were acting for the charterer (it is not important to determine whether as volunteers or in his regular' employ), payment for this being included in the amount paid for the charter of the boat..
The testimony of one of the defendants as to the contract between himself and the charterer was not disputed by any one, but was corroborated by the bill produced, which was paid by the charterer,, and by the évidence of defendants’ foreman, who was present and heard the conversation. That such testimony, thus corroborated,, absolutely uncontradicted, and where no claim is made on behalf of the plaintiff that it was false in any respect, presents a question fertile jury, seems to me to be untenable. A finding by the jury that this was not the contract would be clearly against the weight of evidence, and it would be our duty to reverse it. There was no evidence that the boat was chartered for any specific purpose, to-carry any specific goods from one particular place to another, but,, on the contrary, the evidence is that it was chartered for no particular time, but simply at so much per day. It is not claimed that the-defendants did not ■ furnish the lighter with competent men to man her, or with proper ropes and appliances to load and unload her, but-the negligence, it is claimed, consisted in the fact that, in tying on. a proper rope to raise a tank, it was placed but once around a cogwheel, which, by ‘reason of having a sharp corner, .was liable to cut the rope (which actually happened), or was placed around that cog wheel without a piece of cloth or some other . substance to prevent the sharp corner from cutting the rope. It is clear that this was. merely a method of unloading the lighter, and I. cannot see how it can be claimed upon this testimony that in loading or unloading this vessel these defendants had any duty , to perform. I think, therefore, that when the captain wus acting in either loading or *267unloading this lighter, he was not acting as an employee of the defendants, not engaged in the performance of any duty that they owed to any one, and that any negligence of his in that work was not the negligence of these defendants.
The case of Hagar v. Clark (78 N. Y. 48), relied on by the plaintiff, seems to me to be clearly distinguishable from this case ; in fact, an authority for the defendants. The charter party in that case provided that the owners agreed on the freighting and chartering of the whole of .the vessel, with the exception of the necessary room for the crew, etc., and it was held that, under that provision, the defendants (the charterers) did not acquire the right to-the whole vessel, for they were to have no more of it than was. necessary for the cargo, nor so much, if it did not leave room for the crew and their provisions and the ship’s clothing and cables ■ and, further, it was. held that thé owners, by the express terms of the charter party, liad undertaken duties in respect to the vessel and obligations to the charterers, which could not be performed unless, they remained owners of the vessel and had control over it; -and it. was further held that, under the charter party, the duties devolved upon the owners of loading, stowing and discharging the cargo. No such duties devolved upon the defendants in this case. On the contrary, the testimony is explicit that the agreement was to furnish the boat and two men at fifteen dollars per day. If more men were required to load or unload the vessel they were to be furnished, not. by these defendants, but by the charterer, and, as a fact, more men were required, and they were furnished and paid for by the charterer.
The question here is not as to who is responsible for negligence in the navigation of the vessel by the captain, placed there by the owner, as in Hagar v. Clark (supra), but who is responsible for negligence in unloading the vessel, and that, it seems to me, must be determined by the answer to the question, whose duty it was te unload it. If it was the owners’ .duty to unload it — if by their contract between themselves and the charterer, for whom the plaintiff was. working, any obligation existed on their part to do this work —then neglect in the performance of that duty, either by themselves or their agent, would make them liable. If, on the other hand, the defendants were under no obligation to load or unload this boat, or bound to-*268supply neither the persons to do that work or the materials with which it was done, then the neglect by the persons employed in the discharge of that duty; whether they had originally been employed' •by the defendants or by the charterer, was not the negligence of the defendants for which they were liable. '
1 think, therefore, that the judgment should be reversed.
Judgment affirmed, with costs.