(dissenting). It appears by the case that, on the 28th of April, 1857, the defendants contracted with the plaintiffs to tow their canal boat, the Eree Trader, on the river Delaware, from Bordentown to Schuylkill, and back, at the risk of the master and owners of said boat, and subject to the following stipulations: 1st, the plaintiffs expressly agreed to keep a competent man at the *199helm of the said boat at all times while the tow is in motion; and 2d, the plaintiffs expressly guarantee that their said boat is seaworthy, and reasonably fit for the trip undertaken.
It further appears by the ease that, in going down tiie Delaware, the tug struck on a permanent sand-bar, and the canal boat coming, in consequence, in collision with some other boat in the tow, was so injured that she sunk, and was a total loss. It further appeared that at the time of the grounding of the tug, and at the time of the collision, and while the tow was in motion, there was no person whatever at the helm of the canal boat.
It was contended, on the argument, by the plaintiffs that the defendants were common carriers, and therefore could not limit their liability by special contract.
I think, both upon principle and authority, that they wore not common carriers, and consequently had a right to make this contract.
It was contended, in the second place, that the master of the canal boat had no authority to make a special contract that the towing should be at the risk of the owners. But if this be so, then there was no contract at all, express or implied, and the plaintiffs were in the condition that their captain had lashed the boat to the tug without authority, and if he got swamped, had nobody to blame but himself.
It was contended by the plaintiffs, in the -third place, that by the true construction of this special contract, the defendants were bound to ordinary care In this I think the plaintiffs were right, and that such is the true construction of the contract; and even if this were not so, I think that they would be liable in the case of gross negligence, and that the evidence would justify the jury in concluding that such was the case here. That the jury could justly and legally infer that the vessel grounded by being run upon a permanent and well known sand-bar, and that such is gross negligence.
*200But I do not think any of these considerations are material to the present controversy; because, even supposing the defendants to have been common carriers, they had the right, upon well settled principles in relation to common carriers, to prescribe that a competent man should be at the helm whenever the tow was in motion, as much so as that common carriers should prescribe that they would not cany wheat flour or produce loose in the hold in the vicinity of the fires. This provision in the contract, that there should always be a man at the helm, was one which the defendants had clearly a right to prescribe, even if they were common carriers.
The sole question, therefore, material to the present controversy is as to the true construction of this contract in this regard, it clearly appearing by the evidence that when the collision occurred there was no person at the helm.
The agreement to tow is subject to the plaintiffs having a competent man at the helm of said boat at all times while the to'w is in motion. The moment the man leaves the helm the contract to tow is suspended. When there is no man.at the helm there is no contract to tow. They commence, they co-exist, and they terminate together. When the man leaves the helm,' the tug may leave ordinary care. Here, at the instant of collision, each had abandoned his contract, one the care and the other the helm. Suppose the steamer had been injured while aground, and he could have shown that if there had been a man at the helm it might have been avoided, could not the plaintiff have said it was occasioned as much by your carelessness as ours % The plain answer is, when the accident happened both parties had abandoned their contract, the defendants their. implied contract to use ordinary care, and the plaintiffs their express contract to have a man at the helm.
The contract was not that a jury might ascertain *201whether if the plaintiffs had performed their contract the accident w'ould not have happened. That was not the intention of the parties.
The jury in this case have found that if there had been a man at the helm the accident would nevertheless have happened. How could any jury intelligently say that. The boats in tow at the instant the steamer grounded were some distance in the rear ? The slightest touch of the rudder instantly affects their motion, and would have induced a collision of a kind different from that which actually did happen. A blow in any other form, or at any other spot, might have produced an entirely opposite result. How could the jury say, from the evidence, it might not have been so Í There were several other boats in tow; so far as appears the only one lost was the one which had no man at the helm. But it is enough to say that the parties saw fit to put themselves upon express contract, and not upon what the jury might conclude, which could be at best hut a guess upon the subject.
My opinion is, that the accident having happened at-a time when both parties had suspended their contract, that the defendants are not liable.
Cited in Ohio, &c., R. R., v. Selby, 47 Ind. 485; Brown v. Clegg, 68 Pa. St. 58; Railroad Co. v. Lockwood, 17 Wall 367.