While one carrying on private business may be answerable for the
tort of another to whom he entrusts part of the work, he is not
answerable for the torts of one whom he cannot select, control or
discharge.
The member of a pilot association recognized by state statute
and to which every pilot licensed by the state belongs, are not to
be held liable as partners to owners of piloted vessels for the
negligence of each other,
Page 203 U. S. 400
because the association collects the fees for pilotage and,
after paying certain expenses, distributes them to those on the
active list according to the number of days they have been on duty.
So
held as to Virginia Pilot Association.
135 F. 429 reversed.
The facts are stated in the opinion.
Page 203 U. S. 403
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes before us on a certificate from the circuit
court of appeals. It is a libel brought by the owners of a steamer
against the members of the Virginia Pilot Association, and seeks to
hold them all liable for the alleged negligence of Guy, one of
their number. For the proceedings in the district court,
see 127 F. 228, 135 F. 429. The negligence occurred when
Guy was acting as pilot of the steamer and led to a collision, for
which the owners of steamer paid damages to the other vessel in
order to end a suit. The questions certified are (1) whether the
members of
Page 203 U. S. 404
the association are partners on the facts set forth; (2)
whether, if partners, they are liable to owners of piloted vessels
for the negligence of each other; (3) whether, if not technically
partners, they nevertheless are so liable.
The facts appear in the third article of the libel, which was
excepted to, and in answers to interrogatories. They are as
follows: the defendants are a voluntary, unincorporated
association. By their agreement, they take turns in boarding
vessels required by law to take a pilot, and the fees, which
otherwise would be paid to the pilot that boarded the vessel are
paid, except in cases of national vessels and disputed bills, to
the association upon bills made out by it, and go into a common
fund, from which the association pays the expenses of the business,
including office rent. At the time of the accident, the net profits
were divided according to the number of days the several pilots
were upon the active list. The constitution and bylaws of the
association are exhibited, and will be referred to. It is proper to
add here a few words as to the Virginia law. By the Code of 1887, a
board of commissioners is instituted to examine persons applying
for branches as pilots, and the commissioners are given "full
authority to make such rules as they may think necessary for the
proper government and regulation of pilots licensed by them." §
1955. There are details as to the qualification and classification
of pilots and their duties, including a requirement as to boats, of
the pilot "or the company to which he belongs." § 1960. Acting as
pilot without authority is punished. § 1963. Certain vessels are
required to take the first pilot that offers his services or to pay
full pilotage. § 1965.
See § 1976. The amount of pilotage
is fixed. § 1969. A personal liability is imposed for the amount,
and it is to be noticed that it is a liability to the individual
pilot employed. § 1978. The pilot's right to collect his account is
fortified by a penalty. § 1979. The board of commissioners is
authorized to decide any controversy between licensed pilots or
between a pilot and the master, owner, or consignee of a vessel,
and to enter judgment,
Page 203 U. S. 405
which, if for money, may be collected by a sheriff, etc. § 1980.
But a judgment of suspension against a pilot is limited in general
to between one and twelve months. § 1981. And the board cannot
decide upon the liability of "a pilot" to any party injured by his
negligence. § 1982. Pilots demanding or receiving more or less than
their lawful fees are subjected to a forfeiture. § 1985. And
certain further duties are prescribed.
The rules of the board of commissioners provide for the
appointment by them of a supervisory board from the pilot
association, to report to the president of the board of
commissioners all cases of insubordination, breach of rules, etc.,
or any misdemeanor, afloat or on shore, on the part of any member
of the association. A pilot desiring to go off duty for five days
or longer is required to apply to the board of commissioners.
Suspensions, by whomsoever ordered, are to be reported within
twenty-four hours to the president of the board, and are to be
acted upon by the board. All pilots are required to look out for
their turns, and each pilot is held responsible for whatever turn
he may hold upon the list, officers being prohibited from having
anything to do with the swapping of turns. It will be seen that the
rules of the board, made under the authority of this statute,
recognize the association, as does the Code, more vaguely, in §
1960, quoted above. The rules also recognize the substitution of
turns for the free competition of which there are traces in the
Code. The rules tacitly assume that every pilot is a member of the
association. All punishment and suspension is in the hands of the
board, except, as may be added here, that the bylaws of the
association impose a fine of $10 for a first violation of the rules
of the association, of $20 for a second offense, and provide that a
third shall be reported to the board of pilot commissioners. Thus,
substantially the whole government of the association is in the
hands of the board.
The questions certified very properly go beyond the question
Page 203 U. S. 406
of the existence of a partnership. As long as the matter to be
considered is debated in artificial terms, there is a danger of
being led by a technical definition to apply a certain name, and
then to deduce consequences which have no relation to the grounds
on which the name was applied. The substance of the case is this: a
man who is responsible before the law is alleged to have committed
a tort. It is proposed to make other men pay for it who not only
have not commanded it or any act of which it was the natural
consequence, but who would have prevented it if they could, and who
have done what they could to prevent it, so far as the
qualifications and employment of the pilot were not taken out of
their hands by law. Why they should have to pay is the problem
recurring through agency in all its forms, and whatever may be
thought of some of the reasons that have been offered when the
obligation has been imposed, it is certain that something more and
better must be found than that the defendants divide the pay for
the work that they have done, or that it is a convenience to the
party aggrieved to discover a full purse to which to resort.
Whether the ground be policy or tradition, such a liability is
imposed, as we all know, in many cases. When a man is carrying on
business in his private interest and entrusts a part of the work to
another, the world has agreed to make him answer for that other as
if he had done the work himself. But there is always a limitation.
It is true that he is not excused by care in selection or orders
sufficient to secure right conduct, if obeyed. But when he could
not select, could not control, and could not discharge the guilty
man, he does not answer for his torts. As a familiar instance, the
servants of an independent contractor are not the servants of the
contractee. The liability of a vessel when in the hands of a
compulsory pilot is not put upon the ground that the pilot is the
agent or servant of the owners, and therefore does not bear upon
the question.
The China, 7
Wall. 53. Now we are not curious to inquire what form of test shall
be accepted as
Page 203 U. S. 407
the most profound for the existence of a partnership when
considering liability for debts, but it is plain that, when we are
considering a liability for torts under the circumstances supposed
no stricter or different criterion ought to be applied than in
those cases where agency is the admitted ground. The rule, however
stated, presses to the verge of general principles of liability. It
must not be pressed beyond the point for which we can find a
rational support.
So far as appears, the Virginia Pilot Association had no one of
the three powers which we have mentioned. Seemingly it could
neither select nor discharge its members, as certainly it could not
control or direct them in the performance of their duties as
pilots. To take the last first, it is quite plain that the Virginia
Code contemplates a bond of mutual personal liability between the
master of a vessel and the pilot on board. If we imagine such a
pilot performing his duties within sight of the assembled
association, he still would be sole master of his course. If all of
his fellows passed a vote on the spot that he should change, and
shouted it through a speaking trumpet, he would owe no duty to
obey, but would be as free as before to do what he thought best.
Then, as to the selection of members, there is no indication of any
in the Code, the rules of the board, or the constitution and bylaws
of the association. Nothing is said about membership, and the
implication is plain that a condition of the association being
permitted by the board to exist is that every pilot belongs to it.
Probably, while it exists, a pilot scarcely would find it possible
to compete from the outside. It is still plainer that the only
provision for expulsion is that which would follow upon a pilot's
being deprived of his license. The association has no power over
that.
All that there is upon which to base a joint liability is that
the pilots, instead of taking their fees as they earn them,
accomplish substantially the same result by mingling them in the
first place, and then, after paying expenses, distributing them to
those on the active list according to the number of
Page 203 U. S. 408
days they respectively have been there. Apart from the possible
slight difference between the proportion of days on the active list
and days of active service, the case is the same as if each pilot
kept his fees, merely contributing to keep up a common office from
which his bills might be sent out and where a few details of common
interest could be attended to. In the latter case this suit hardly
would have been brought. The distinction between it and the one at
bar is not great enough to justify a different result.
See The
City of Dundee, 108 F. 679, 684, 103 F. 696.
The second and third questions certified are answered
"No."