Before
BETTS, District Judge.This was an action brought by the master and owner of the canalboat J. K. Eldridge against the Syracuse, to recover the damages occasioned by the sinking of the canalboat while in tow of the steamboat in rounding from the North into the East river, on the 1st day of December, 1861. The canalboat was one of a number of boats which were towed down from Albany in five tiers, being the starboard boat in the last tier but one. On coming down into the harbor of New York, a great number of vessels were found to be lying at anchor off the Battery, and the master of the Syracuse chose his path through them. The tide was setting strong ebb. Two other steamtugs were employed to assist the tow in coming round, and the Syracuse and the barges alongside passed safely through the vessels, and had headed up against the ebb tide which sets out of the East river above Governor’s Island, but the tow behind her was not drawn round so quick but that the libelant’s boat was carried against the bow of a vessel lying at anchor, and so injured that she was compelled to ran ashore on Governor’s Island, where she filled and sank and became a total loss. The libelant claimed that the steamboat was charged with the responsibilities of a common carrier, while the respondents claimed that the towing was done under a contract by which the vessel was to be towed “at the risk of her master and owners.”
HELD BY THE COURT: That prima fa-cie the relation in which the Syracuse stood to the canalboat under the maritime law guaranteed to the latter a safe conveyance to her place of destination at the charge and responsibility of the former. The Express [Case No. 4,596]. That it was entirely competent to the parties to vary that responsibility by the contract they entered into, and that under that contract the steamboat was not liable as a common carrier, but is liable only ex contractu. That the words in the receipt, “at the risk of her owners,” did not operate to relieve or discharge the steamboat and her owners from the exercise of all reasonable skill, attention, fidelity, and precaution in the performance of the trust of hiring and transportation upon which she was engaged. The facts of this collision are very similar to those in the case of Rea v. The New York, 18 How. [59 U. S.] 225. The collision occurred about midday, in fair and bright weather, and the master of the Syracuse had a clear and plain view of the state of the river in his front, and the impediments of vessels at anchor on his route of travel to the pier in the East river to which his tow was destined. The testimony of the master of the Syracuse is that the rapidity and contrariety of the tidal currents at the place at which the vessel was lying at anchor, against which the canalboat was drawn by the Syracuse, did not leave a sufficient space and passageway for the Syracuse and her tow of forty boats to avoid her. It was most manifest that the Syracuse was adhering to her course in endeavoring to make her passage around the Battery, long after it was obvious to the towing vessel that she could not, with her force and means in use, succeed in carrying her numerous train of boats through the difficulties in the way without applying further help in aid of the tow, or bringing it to anchor. All the testimony in the case is full to the necessity of having more power employed in. towing the train of boats attempted to be carried on the voyage, and that the Syracuse was well aware of it; that she placed two tugboats as helpers attached to the towing hawser, and secured the libelant’s canalboat directly alongside the Syracuse, where she was personally in command of the tugs also, but offered no aid to her at the moment of the collision or help from either the tugs or steamer to the canalboat, but continued the motion of the general train ahead, and drew the canalboat into collision with the vessel at anchor, which collision caused the canal-boat to founder and sink, and become a total loss, by the wrongful and tortious act of the Syracuse and her master. That the libelant is therefore entitled to recover his damages; decree accordingly.