It- must be considered as settled, that a towboat engaged in the business of towing, is not for such purposes a common carrier, nor subject to the liabilities assumed by such engagements. The case of Wells v. Steam Navigation Co. (2 N. Y. Rep. 208, and 8 id. 381) decides this point, and I know of ho later decision to the contrary.
The defendants, then, were liable for negligence in performing the special duty they had undertaken, and not otherwise. The construction of the words, “ at the risk of the master and owners,” has been settled, and the cases above referred to, as well as that of Alexander v. Green, (7 Hill, 533,) decide that such a clause does not excuse the proprietor of the tow boat from liability for negligence in péforming his contract.
The point upon which a reargument was ordered, was whether the master of the tow boat was chargeable with negligence because the captain of the barge did not provide a watch or lights on board of the canal boat.
I do not understand the captain of the tow boat to have the entire charge and control of the boats he takes in tow. They are attached to his vessel, but the captain and crew are on board and are required to use care and caution on their part. They are not the servants of the captain of *562the tow boat. His undertaking is to tow them. In doing so he is required to use skill and care to avoid injury, but he does not put his men on board of the boat towed. The captain of that boat must see to her guidance, to steer her. when necessary, and to take the necessary precautions on his part. If he omits such care and precaution, and injury ensues from such neglect, he, and' not the tow boat, is to bear the consequences.
The master of the towing boat might, as a matter of precaution, give directions as to what was necessary or proper to be done on board of the canal boat, and such directions would more strongly show the negligence of the captain of the towed vessel if not obeyed; but the omission to do so is not clearly negligence on his part. It may go to the jury as all the other facts in the case, and it becomes a question of fact for the jury to decide whether there was negligence, and if so, on whom are the consequences of such negligence chargeable.
This has been so settled by the Court of Appeals in Milton v. Hudson River Steamboat Company, (4 Trans. Rep. 252.) In that case it was held that the master of the towed boat was bound to use care and caution, and he was bound to use reasonable exertions to protect his property; if he did not, the towing boat was not liable. Grover, J., says: “ The defendant is liable for a breach of his contract, but only for such damages as the owner of the towed boat by reasonable care and diligence could not guard against. I think, therefore, it was error to charge the jury that the captain or owner of the property towed must be deemed in law as having surrendered to the steamer such jurisdiction as is necessary to render that towing safe; and that the captain of the steamer would have the right to put lights upon her.” And again, where he says: “I charge you as matter of law that it is not a negligent act on the part of the captain of the canal boat, not to keep a watch upon his boat at night.”
*563This charge was evidently made under the impression, that the whole charge of the boat towed was in the captain of the towing vessel, and that the former were not required to exercise any care or caution.
The case referred to, from'the Court of Appeals, being in direct opposition to that ruling, the judgment should be reversed and a new trial ordered.
Sutherland, J.There is much force in the opinion of
Justice Clerke, in this case; but upon the whole, lam of the opinion we should grant a new trial, with costs to abide the event. The reported cases do not seem fully to sustain the position I took in the opinion written upon the first argument; and if this position cannot be sustained, I am of the opinion there should be a new trial.