American Towing & Lightering Co. v. Baker-Whiteley Coal Co.

Thomas, J., delivered tbe opinion of tbe Court. This is tbe second appeal in this case, a judgment in favor of the appellee having been reversed and a new trial awarded in 111 Md. 504 . Suit was brought on tbe common counts, - and a special count for services rendered by tbe plaintiff’s tug Britannia ⁶⁶⁹ in towing certain scows at tlie request of the defendant. The defendant, in addition to the general issue plea, pleaded, first, payment; second, that the towing for which the plaintiff seeks to recover was so carelessly and negligently done that the scows were wrecked and the defendant sustained loss in excess of the plaintiff’s claim, and, third, that the defendant contracted to tow the scows from llobile to Baltimore, and “employed the plaintiff’s tug Britannia to do a portion of said towing;” that said tug was not properly equipped for that purpose, and used an improper cable or hawser, and by reason thereof said hawser broke and the scows were wrecked; that afterwards the owners of the scows “filed a proceeding in admirality in the District Court of the United States for the Eastern District of Virginia, and a decree was entered therein against the tug Britannia,” and that in the adjustment and settlement of the loss the Britannia was compelled to pay by reason of its said negligence the claim of the plaintiff was allowed and deducted.

The payment, negligence and allowance of the plaintiff’s claim set up in the pleas were denied by the plaintiff, and the trial resulted in a verdict and judgment in its favor, from which judgment the defendant has again appealed. During the trial the defendant reserved eleven exceptions, all of which relate to rulings on the evidence except the eleventh, which brings up for review the action of the Court below on the prayers. It appears from the evidence that the defendant was under a contract with ¡the Standard Dredging Company to tow four scows belonging to said Dredging Company from Mobile to Baltimore, and that the scows were accordingly towed by the defendant’s tug Buccaneer from Mobile to Charlestown. The defendant then engaged the plaintiff’s fug Britannia to bring two of the scows from Charleston to Baltimore, the other two being towed by the Buccaneer.

The plaintiff agreed to furnish the hawser. Shortly after the Britannia left Charlestown with the scows in question, and notwithstanding the weather was fair and the sea ⁶⁷⁰ smooth, the hawser parted twice, and two or three days later, during a storm, the hawser again parted, and the captain of the Britannia determined to abandon the scows, and went to Norfolk. The scows, several days after they were abandoned by the plaintiff’s tug, were found by their owner on the beach below Cape Henry, and were a complete wreck. The defendant offered evidence tending to show that the hawser was defective, and that the failure of the plaintiff to furnish a proper hawser was due to the plaintiff’s negligence, while the plaintiff produced evidence to show that the scows leaked, and were, therefore, more difficult to tow, and that the parting of the hawser the last time was, due to their condition and the storm they encountered.

The contract for the services of the Britannia was made by Edward H. Bay, the treasurer of the plaintiff, and Robert H. Bradford, secretary and treasurer of the defendant. It was not in writing, and there is a dispute as to its terms. Ray states that Bradford called him “up on the telephone and said he had two mud lighters in Charles-town, and that he would like to charter the tug Britannia to go down there and bring them to Baltimore;” and that he, Rav, “agreed to hire to Mr. Bradford, of the American Towing and Lightering Company, the Britannia, to go to Charlestown, at the rate of $125 a day, to bring-.” The witness was interrupted at this point, and later, when asked if he had stated all the conversation with Bradford, said he thought he had, and that “the object was for the Britannia to go there and tow the two lighters from Charleston to Baltimore.” Bradford states: “I called up Mr. Ray, secretary and treasurer of the Baker-’Whiteley Coal Company, and asked him if his tug Britannia was available to go to Charleston, S. C., and tow two mud scows to Baltimore. After repeating the question several times on the phone, I explained to him what was required, and after some dickering oar the price, I agreed on the price of $125 a day.

I told Mr. Ray that I had to confer with the owners ⁶⁷¹ of the scows, but I would advise him later.” He states further that “The time was to begin when the tug Britannia sailed and to cease on delivery of the scows in Baltimore.” Evidence was introduced by the defendant tending to show that there was a general and uniform, custom prevailing in the towing business, according to which unless the tow is delivered at its destination the tug is not entitled to any compensation, except when payment in case of loss of tow is specially provided for in the contract, while evidence was produced by the plaintiff to show that according to the established custom if the tug is hired by the day tlie owner is entitled to compensation whether the tow reaches its destination or not. The defendant also offered in evidence the answer of the plaintiff in the case of the Standard .Dredging Company against the Britannia, in the District Court of the United States, in which the plaintiff stated that it was under a contract with the American Towing and Lightering Company, the defendant in this case, to tow the scows from Charleston to Baltimore, and the plaintiff offered evidence of certain alleged admissions of Mr. Bradford to the effect that under the contract in question the plaintiff was entitled to recover for the services rendered notwithstanding its failure to deliver the scows. At the close of the case the plaintiff offered six prayers, which were granted by the Court below, and the defendant offered ten, all of which (with some modifications of the third, fourth and fifth) were granted, except the second, eighth, ninth and tenth, the last three of which sought to take the case from the jury on the ground that there was no evidence in the case tó justify a verdict for the plaintiff. By the plaintiff’s first prayer the jury were told ithat if they found that the plaintiff chartered the tug Britannia to the defendant for so long a time as the defendant might require the services of the tug, and that the defendant agreed to pay for such services one hundred and twenty-five dollars a day; and further found that the defendant did use the tug for ten days, but did not pay tbe plaintiff, then ⁶⁷² the plaintiff was entitled to recover, unless tbe jury further found that the defendant, by reason of the negligence of the plaintiff, lost a greater sum than the amount due the plaintiff under said contract.

Plaintiff’s second prayer instructed the jury that if they found for the plaintiff under its first prayer, then they were to allow the plaintiff one hundred and twenty-five dollars a day for each of the ten days that the defendant used the plaintiff’s tug, less whatever sum the jury should find the defendant lost by reason of plaintiff’s negligence, with interest in the discretion of the jury. Plaintiff’s fifth and sixth prayers are practically the same as its first and second, except that the fifth prayer is based upon the finding of the jury that the plaintiff chartered the tug Britannia to the defendant for so long a time as the defendant might require the services of said tug in going to Charleston and bringing the scows from there to Baltimore. By the plaintiff’s third prayer the jury were instructed that if they found “that the plaintiff entered into a contract with the defendant, whereby the plaintiff hired the tug Britannia to the defendant at the sum of one hundred and twenty-five dollars per day to bring certain scows from Charleston to Baltimore;” and further found that in accordance with the contract, the Britannia went from Baltimore to Charleston and did there take said scows in tow and start -with them to Baltimore; and further found that the scows were lost by the Britannia and destroyed, and that such loss and destruction was not due to any negligence on the part of the Britannia or her master or crew; and should further find that the defendant had not paid the plaintiff for the services of said tug, then their verdict should be for the plaintiff, and its fourth prayer directed the jury that if (they found for the plaintiff under the third prayer, the plaintiff was entitled to recover what the jury should find the services of the Britannia were reasonably worth from 'the time she left Baltimore until the time the scows were lost, with interest in the discretion of the jury. ⁶⁷³ The defendant’s exception to the granting of these prayers is based primarily on its contention that all of tbe evidence shows that the contract sued on was one by which the plaintiff undertook and contracted to tow the scows from Charleston to Baltimore, and having failed to do so it cannot recover, and the further contention that there is no evidence in the case to show what the sendees rendered by the tug Britannia were reasonably worth. We think the evidence to which we have already referred is a sufficient answer to the -first of these contentions.

Certainly if the statement of the treasurer of the- plaintiff that he hired the Britannia to the defendant, at one hundred and twenty-five dollars a day, to go to Charleston for the purpose of towing the scows to Baltimore, and the statement of the secretary and treasurer of the defendant, after the Britannia had returned to Baltimore without the scows, that the plaintiff’s bill should have been for eleven days instead of ten, constituted the only evidence in the case of the terms of the contract, it would not be contended that the agents of the plaintiff and defendant, who made the contract. intended that the plaintiff was not to receive compensation for the use of the tug unless the scows were delivered in. Baltimore. The hiring or chartering of a tug-for a certain purpose does not necessarily imply a contract on the part of the owner of the tug that the purpose for which it was hired shall be accomplished. The question, however, was practically decided on the former appeal, where this Court refused to hold that the uncontradicted evidence showed that the plaintiff contracted to tow the scows to Baltimore.

It is true that the evidence in this ease is not exactly the same, and that the Court on the first appeal-relied very largely on the statement of Bay that he “refused to agree” on behalf of the plaintiff “to tow the scows from Charleston to Baltimore.” But the Court also referred to the statement of Bradford that he “hired from Mr. Bay the Britannia to proceed to Charleston, South Carolina, for the purpose of towing the scows to Baltimore for the ⁶⁷⁴ compensation of $125 a day,” as evidence tending to show that the plaintiff did not contract to tow the scows from Charleston to Baltimore. The statement of Ray at the last trial does not differ substantially from the statement of Bradford at the first trial, which we have just referred to, and to which, as we have said, Judge SchmucKee. referred as evidence corroborating the statement of Ray that he did not contract to tow the scows to Baltimore. There being a dispute as to the terms of the oral contract, we must hold as we did in 111 Md. 504 , that it was for the jury to find whait the contract was, and that there was therefore no error in the rejection of defendant’s eighth, ninth and tenth prayers. We see no objection to the first, second, fifth and sixth prayers of the plaintiff, and we do not understand the legal propositions presented by them to be questioned by the appellant.

The only ground of its exception being that they were not justified by the evidence in the case. The defendant’s second prayer instructed the jury that according to the uncontradicted evidence in the case, the contract between the plaintiff and the defendant was that the plaintiff’s tug Britannia “should proceed from Baltimore to Charleston, and from there tow two scows to Baltimore, at the compensation of $125 a day — the tug to provide the hawser,” and if they found “that the scows were lost while being towed by the plaintiff’s tug by reason of the failure of the plaintiff' to provide a good and sufficient hawser,” etc., their verdict should be for the defendant. Apart from the objection that the prayer withdraws from the jury the question of what the contract was, it asserts the proposition that if the scows were lost by reason of the failure of plaintiff to provide a good and sufficient hawser, the plaintiff is not entitled to recover. It may be said that the authorities agree that ordinarily it is the duty of the owner of tugs engaged in the towing business to “furnish a seaworthy vessel of sufficient capacity and' power, and properly equipped with the necessary fittings and appliances.” 38 Cyc, 567-9; Baker-Whiteley Co. v. Neptune Nav.

Co., 120 Fed. 249 ; ⁶⁷⁵ In re Britannia, 148 Fed. 499 ; The Quickstep, 9 Wallace, 665. But we think it equally clear that tugboats engaged in towing are not common carriers or insurers, and in discharging their duties are only required to exercise reasonable skill and care. 38 Cyc. 562; Baker-Whiteley Co. v. Neptune Nav. Co., supra; Steamer Webb, 14 Wallace, 406; Trans. Line v. Hope, 95 U. S. 297 ; In re Moran, 120 Fed. 556 ; The J. P. Donaldson, 167 U. S. 599 ; In re Ravencourt, 103 Fed. p. 674.

In the case of The Tug Moran, supra, the Court held that there was no ground upon which the owner of a tug could be regarded as an insurer of the tug’s equipment- In the case of the Steamer Well, supra, the Court said: “It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence, or