1. A contract for the transportation of cargo shipped on board a
barge, with privilege to the carrier of reshipping, in whole or in
part, on steamboats or barges and of towing with one steamer two or
more barges at the same time, is a contract of affreightment, in
which it is necessarily implied that the barge as a means of
transportation will be used in conjunction with a steamer or tug,
to be furnished by the carrier, the two constituting together the
effective instrumentality. P. 273 U. S.
2. In such case, the barge and the tug together constitute the
"vessel transporting merchandise or property" within § 3 of the
Harter Act. P. 273 U. S.
3. The rule of strict construction is not violated by permitting
the words of a statute to have their full meaning or the more
extended of two meanings. P. 273 U. S.
3 F.2d 759 reversed.
Certiorari (268 U.S. 683) to a decree of the circuit court of
appeals which affirmed a decree of the district court in favor of
Salz, the present respondent, in a suit in personam
brought by him to recover for the loss of a cargo of barley while
it was being towed by the petitioner under a contract of
Page 273 U. S. 327
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This appeal involves the construction and application of § 3 of
the Harter Act, 27 Stat. 445, c. 105, which, so far as pertinent
"That if the owner of any vessel transporting merchandise or
property to or from any port in the United States of America shall
exercise due diligence to make the said vessel in all respects
seaworthy and properly manned, equipped, and supplied, neither the
vessel, her owner or owners, agent, or charterers shall become or
be held responsible for damage or loss resulting from faults or
errors in navigation or in the management of said vessel. . .
Petitioner is a common carrier on the Sacramento River in
California, and owns and operates the barge Tennessee,
which is not equipped with motive power, and the steamer San
Joaquin No. 4.
On September 23, 1921, petitioner received from
respondent for transportation a quantity of barley in sacks. The
bill of lading acknowledges shipment of the barley
"on board of the Sacramento Transportation [Navigation] Co.'s
. . . with the privilege of reshipping in
whole or in part, on steamboats or barges; also with the privilege
of towing with one steamer at the same time, . . . two or more
barges, either loaded or empty."
While being towed by the steamer in the course of
transportation, the barge came into collision with a British ship
at anchor, and was swamped. The barley was a total loss. The sole
cause of the collision was the negligence of the steamer. That both
barge and steamer were "in all respects seaworthy, and properly
manned, equipped, and supplied " is not in dispute. Upon these
facts, respondent filed its libel in personam
In the view we take of the case, the sole question to be
determined is whether the barge alone, or the combination
Page 273 U. S. 328
of tug and barge, was the "vessel transporting" the barley
within the meaning of the Harter Act. This question is a nice one,
and the answer to it is by no means obvious. The court below
thought the contract was between the respondent and the barge, and
did not include the tug; that, since the barge had no power of her
own, there was an implied contract that a tug would be furnished to
carry her to her destination, and that the Harter Act should
receive a strict construction, and, so construed, it applied only
to the relation of a vessel to the cargo with which she was herself
laden -- that is to say, in this case, the barge alone. The decree
of the district court for respondent accordingly was affirmed. 3
The libel recites that it is "in a cause of towage," and, in
argument, this is strenuously insisted upon. Towage service is the
employment of one vessel to expedite the voyage of another. Here,
while there was towage service, the contract actually made with
respondent was not to tow a vessel, but to transport goods, and
plainly that contract was a contract of affreightment. See
Bramble v. Culmer,
78 F. 497, 501; The Nettie Quill,
124 F. 667, 670. Respondent's contention, however, seems to be that
the shipping contract, as evidenced by the bill of lading, was with
or for the barge alone, but that, when petitioner took the barge in
tow, an implied contract of towage with respondent at once arose.
This view of the matter, we think, is fallacious.
The fact that we are dealing with vessels which, by a fiction of
the law, are invested with personality does not require us to
disregard the actualities of the situation -- namely that the owner
of the tug towed his own barge as a necessary incident of the
contract of affreightment, and that the transportation of the cargo
was in fact effected by their joint operation. The bill of lading
declares that the cargo was shipped on board
Page 273 U. S. 329
But it was to be transported, and this the barge alone was
incapable of doing, since she had no power of self-movement. It
results necessarily that it was within the contemplation of the
contract that the transportation would be accomplished by combining
the barge with a vessel having such power. Respondent says there
was an implied contract to this effect -- that is, as we
understand, a distinct contract implied in fact. But a contract
includes not only the promises set forth in express words, but, in
addition, all such implied provisions as are indispensable to
effectuate the intention of the parties and as arise from the
language of the contract and the circumstances under which it was
made. 3 Williston on Contracts, § 1293; Brodie v. Cardiff
 A.C. 337, 358. And there is no
justification here for going beyond the contract actually made to
invoke the conception of an independent implied contract.
Considering the language of the bill of lading in the light of
all the circumstances, it is manifest that we are dealing with a
single contract, and the use of the tug must be read into that
contract as an indispensable factor in the performance of its
obligations. To transport means to convey or carry from one place
to another, and a transportation contract for the barge without the
tug would have been as futile as a contract for the use of a
freight car without a locomotive. In this view, by the terms of the
contract of affreightment, in part expressed and in part
necessarily resulting from that which was expressed, the
transportation of the goods was called for not by the barge, an
inert thing, but by the barge and tug, constituting together the
effective instrumentality to that end.
It is said that the Harter Act is to be strictly construed.
The Main v. Williams, 152 U. S. 122
152 U. S. 132
Even so, the rule of strict construction is not violated by
permitting the words of a statute to have their full meaning, or
Page 273 U. S. 330
extended of two meanings. The words are not to be bent one way
or the other, but to be taken in the sense which will best manifest
the legislative intent. United States v.
6 Wall. 385, 73 U. S. 396
United States v. Corbett, 215 U.
, 215 U. S. 242
In the light of the decisions presently to be noted, the words a
"vessel transporting merchandise," etc., are entirely appropriate
to describe the combination now in question, and we see no reason
to think that Congress intended that they should not be so applied.
This Court and other federal courts repeatedly have held that such
a combination constitutes, in law, one vessel. See The
9 Wall. 526, 76 U. S.
-529; The "Civilta" and the "Restless,"
103 U. S. 699
103 U. S. 701
The Nettie Quill, supra; The Columbia,
73 F. 226; The
241 F. 43, 45; The Fred W. Chase,
91, 95; The Bordentown,
40 F. 682, 687; State v.
34 Or. 173, 175, 176.
In The Northern Belle, supra,
this Court, speaking of a
combination of barge and steamboat, said that "the barge is
considered as belonging to the boat to which she is attached for
the purposes of that voyage." In The "Civilta" and the
a tug and a ship which she was towing by
means of a hawser were held to be, in contemplation of law, "one
vessel, and that a vessel under steam."
In The Columbia, supra,
it was held that a barge having
no motive power and a tug belonging to the same owner and
furnishing the motive power constituted one vessel for the purposes
of the voyage. In that case, wheat was to be transported by means
of the barge, and the owner of the barge and tug undertook the
transportation. The court said (p. 237):
"As the wheat was to be carried on board the barge, which had no
motive power, of necessity such power had to be supplied by the
carrier. . . . When the tug made fast and took in tow the barge, to
perform the contract of carriage, the two became one
Page 273 U. S. 331
vessel for the purpose of that voyage -- as much so as if she
had been taken bodily on board the tug, instead of being made fast
thereto by means of lines."
It was accordingly held that, without surrendering both vessels,
the owner was not entitled to the advantages of Revised Statutes, §
4283 et seq.
, providing for a limitation of liability of
"the owner of any vessel," etc.
The court below rejected this decision as not applicable to a
case arising under the Harter Act, but it is hard to see why the
case is not pertinent, and, if sound, controlling. What we are
called upon to ascertain is the meaning of the term "any vessel,"
and the point decided in that case is that it includes a
combination identical in all respects with that here dealt with.
True, the court there, in construing the phrase "the owner of any
vessel," was considering one statute, while here we are considering
another and different statute; but there is no such difference
between the statutes in respect of the connection in which the
phrase is used, or in respect of the subject matter to which it
relates, as to suggest that Congress intended that it should bear
Respondent contends that his view to the contrary is sustained
by The Murrel,
195 F. 483, aff'g
200 F. 826, and
233 F. 1, aff'g
230 F. 505. Some
things are said in those cases which, if we should not consider the
differences between them and the present case, might justify this
contention. The most important of these differences is that, in
both cases, it was held that contracts of towage, and not of
affreightment, were involved. We do not stop to inquire whether
this conclusion as to the nature of the contracts was justified by
the facts. It is enough that it was so held, and this holding was
the basis of the decisions. Here, upon all the facts, as we have
just said, the contract upon which respondent must rest is one of
affreightment, the obligation of which is to carry a cargo, not to
tow a vessel.
Page 273 U. S. 332
Liverpool, etc., Nav. Co. v. Brooklyn Terminal,
251 U. S. 48
relied upon by respondent, is not to the contrary. There, the libel
was for a collision with petitioner's steamship, the moving cause
of which was respondent's steam tug, proceeding up the East River,
with a loaded car float lashed to one side and a disabled tug to
the other, all belonging to respondent. The car float came into
contact with the steamship, but the Court said it was a passive
instrument in the hands of the tug, and did not affect the question
of responsibility. The controversy arose upon a claim to limit
liability, petitioner contending that the entire flotilla should
have been surrendered. This Court held that it was necessary to
surrender only the active tug, saying
"that, for the purposes of liability, the passive instrument of
the harm does not become one with the actively responsible vessel
by being attached to it."
But this is far from saying that the entire flotilla might not
be regarded as one vessel for the purposes of the undertaking in
which the common owner was engaged at the time of the collision.
The distinction seems plain. There, the libel was for an injury to
a ship in no way related to the flotilla. It was a pure tort; no
contractual obligations were involved, and the simple inquiry was
what constituted the "offending vessel"? Here we must ask what
constituted the vessel by which the contract of transportation was
to be effected? -- a very different question. If the British ship,
which here was struck by the barge, were suing to recover damages,
and a limitation of liability were sought by the owner of the tug
and barge, the Liverpool
case would be in point. But the
present libel is for a loss of cargo, and falls within the
principle of The Columbia, supra,
where, upon facts
substantially identical with those here, a surrender was required
of the combined means by which the company undertook the
transportation of the cargo.