1. An ordinary towage contract does not create a bailment, but
surrenders to the tug only such control over the tow as is
necessary for the performance of the tug's engagement. P.
285 U. S.
2. This is so even where the owner of the tow has no one aboard
her, or where his boatman, on board at the beginning, leaves before
the voyage is ended. P. 285 U. S.
Page 285 U. S. 196
3. A suit by the owner of a tow against her tug to recover for
an injury to the tow caused by negligence on the part of the tug is
a suit ex delicto
and not ex contractu.
285 U. S.
4. The tug is not liable as an insurer or as a common carrier.
Its duty is to exercise such reasonable care and maritime skill as
prudent navigators employ for the performance of similar service.
P. 285 U. S.
5. In a suit against the tug for injury to the tow, the burden
is upon the tow's owner to show that the injury was caused by a
breach of that duty. Id.
6. The mere fact that the tow was in good order when received by
the tug and in damaged condition when delivered by it does not
raise a presumption of negligence against the tug. Id.
where the injury occurred while no one was with
the flotilla save the owners of the tug, who could not explain
when, how, or where the injury happened, and where there was
nothing about the injury itself to warrant an inference that it
resulted from fault or negligence on the part of the tug.
7. The burden of proving negligence in such a case is not
satisfied by evidence which leaves the time, place, and cause of
the injury in the realm of conjecture, and which is as consistent
with an hypothesis that the tug was not negligent a with one that
it was. P. 285 U. S.
8. The party causing unnecessary parts of the record to be
printed may be charged with the cost of printing them, under Rule
13, par. 9. P. 285 U. S. 204
48 F.2d 557 affirmed.
Certiorari, 284 U.S. 602, to review the reversal of a decree in
admiralty awarding damages against a tug for injury to her tow. For
opinion of the District Court, see
35 F.2d 1006.
Page 285 U. S. 197
MR. JUSTICE BUTLER delivered the opinion of the Court.
Petitioner, the assignee of the owner of a forty-five-foot
motorboat, the Drifter, filed a libel in admiralty in
Page 285 U. S. 198
the Southern District of New York against respondent to recover
for injury sustained by the former while being towed by the latter.
The court held that the tug was a bailee of the tow, and that, it
having been shown by the evidence that the former received the
latter in good condition and delivered it damaged without being
able to account for the injury, there was a presumption of
negligence on the part of the tug, and that she must be held
liable. 35 F.2d 1006. The Circuit Court of Appeals held the towage
contract did not put the tow in bail to the tug, and that the mere
fact of injury created no presumption of negligence, and reversed
the decree. 48 F.2d 557.
Petitioner maintains that the tug was bailee for hire, and that,
by proving the tug received the tow in good order and delivered it
in a damaged condition, he made a prima facie
negligence which cast upon such bailee the burden of showing the
circumstances surrounding the damage. And he insists that, even if
the presumption did not so arise, there was ample proof of
negligence on the part of the owners of respondent.
The facts supported by the evidence, so far as they are material
to these contentions, may be stated briefly as follows:
October 13, 1925, Roos, an employee of the Consolidated
Shipbuilding Corporation, which had just completed the
made an agreement with Alexander Simpson for its
towage from the builder's plant at Morris Heights in New York City
to Port Newark, alongside the steamer Suscalanco
it was to be shipped. Later, Simpson told Roos that the White
an excursion boat owned by Herbert Simpson and one
Rhodes, would do the towing. Roos told Simpson that the boat should
be at the plant at six o'clock in the morning. Her owners brought
her about eight, and were the only persons aboard at any time here
involved. Employees of the builder assisted
Page 285 U. S. 199
in attaching the Drifter,
then in good condition, to
the White City
by a forty-foot rope. A cradle in which the
former was to be stowed on the deck of the Suscalanco
attached by another rope about the same length to the stern of the
The builder put an employee, one Weston, on the
merely, as petitioner maintains, to tend lines
when she was brought alongside the Suscalanco.
Respondent took the tow down the East River; the cradle became
detached at Hell Gate; reattaching it caused delay of fifteen or
twenty minutes, but no damage occurred to the Drifter
that time. Respondent continued down the river, across the Upper
Bay, through Kill van Kull and into Newark Bay, where, about five
o'clock in the afternoon, she sighted the Suscalanco
out to sea. Then the tug went to Fisher's Dock in Bayonne, and, her
owners having learned by telephone that the shipment could be made
on a later steamer, remained there over night. The Drifter
was tied alongside the pier with fenders to prevent injury. Weston,
with the acquiescence of the owners of the tug, went home for the
night, but did not return. Simpson testified that, on the morning
following, he went aboard the Drifter
to steer her while
she and the cradle were being towed to destination; that, before
leaving the dock he inspected her, and that she was in the same
condition as when received. When they arrived at Port Newark, about
eight in the morning, the Drifter's
hull planking was
broken or damaged amidship on the starboard side just above the
water line causing a dish-shaped depression about three-quarters of
an inch deep, roughly circular, and about twelve or fourteen inches
in diameter. At the trial, it was suggested by way of explanation
that the hole might have been made by a piece of driftwood of which
there was much in the bay. But there was no evidence to show, and
the trial court found that neither Rhodes nor Simpson
Page 285 U. S. 200
could explain when, how, or where the damage happened.
Decisions of this Court show that, under a towage contract, the
tug is not a bailee of the vessel in tow or its cargo. And it is
established here and by numerous rulings of lower federal courts
that evidence showing a tug's receipt of a tow in good order and
delivery in damaged condition raises no presumption of
The supplying of power by a vessel, usually one propelled by
steam, to tow or draw another is towage. Many vessels, such as
barges and canal boats, have no power of their own and are built
with a view to receiving their propelling force from other sources.
And vessels having motive power often employ auxiliary power to
assist them in moving about harbors and docks. Benedict on
Admiralty, 5th ed., § 100.
The tug does not have exclusive control over the tow, but only
so far as is necessary to enable the tug and those in charge of her
to fulfill the engagement. They do not have control such as belongs
to common carriers and other bailees. They have no authority over
the master or hands of the towed vessel beyond such as is required
to govern the movement of the flotilla. In all other respects and
for all other purposes the vessel in tow, its cargo and crew,
remain under the authority of its master; and, in emergency, the
duty is upon him to determine what shall be done for the safety of
his vessel and her cargo. In all such cases, the right of decision
belongs to the master of the tow and not to the master of the tug.
A contract merely for towage does not require or contemplate such a
delivery as is ordinarily deemed essential to bailment.
Wall. 406, 81 U. S. 414
Eastern Transportation Line v. Hope, 95 U. S.
, 95 U. S. 299
The L. P. Dayton, 120 U. S. 337
120 U. S. 351
The Burlington v. Ford, 137 U. S. 386
137 U. S. 391
The J. P. Donaldson, 167 U. S. 599
167 U. S.
-604; Alexander v. Greene,
3 Hill 9, 19;
Wells v. Steam Navigation
Page 285 U. S. 201
2 N.Y. 204, 208. Cf. American Ry. Express Co.
v. American Trust Co.,
47 F.2d 16, 18; Berting v.
101 Ark. 75, 81, 141 S.W. 201; Sawyer v. Old
Lowell National Bank,
230 Mass. 342, 346, 119 N.E. 825;
Blondell v. Consol. Gas Co.,
89 Md. 732, 746, 43 A. 817;
Gilson v. Pennsylvania R. Co.,
86 N.J.Law, 446, 449, 92 A.
59; Fletcher v. Ingram,
46 Wis.191, 202, 50 N.W. 424. The
owner of the Drifter
did not surrender to respondent any
right of control that does not pass in virtue of a contract merely
for towage. The fact that the man put aboard by the builder did not
remain to the end or that the owner did not choose to keep some one
on the tow is immaterial.
Petitioner's claim against respondent is not for breach of
contract, but one in tort. His allegations and proof in respect of
the agreement between the parties were made by way of inducement to
his real grievance which was the damage to the Drifter
claimed to have been caused by negligence of the respondent. It has
long been settled that suit by the owner of a tow against her tug
to recover for an injury to the tow caused by negligence on the
part of the tug is a suit ex delicto
and not ex
contractu. The Quickstep,
9 Wall. 665, 76 U. S. 670
12 Wall. 167, 79 U. S. 171
The J. P. Donaldson, supra, 167 U. S. 603
The John G. Stevens, 170 U. S. 113
170 U. S. 125
Fed.Cas. No. 1,938, 2 Ben. 547; The
Fed.Cas. No. 3,737, 4 Ben. 352; The Arturo,
F. 308. In the case last cited, Judge Lowell said (p. 312):
"These cases of tow against tug are, in form and fact, very like
collision cases. The contract gives rise to duties very closely
resembling those which one vessel owes to others which it may
In The John G. Stevens, supra,
this Court cited The
approvingly and said (p. 126):
"The essential likeness between the ordinary case of a collision
between two ships, and the liability of a tug to her tow for
damages caused to the latter by a collision with a
Page 285 U. S. 202
third vessel, is exemplified by the familiar practice in
admiralty . . . which allows the owner of a tow, injured by a
collision caused by the conduct of her tug and of another vessel,
to sue both in one libel, and to recover against either or both,
according to the proof at the hearing."
And the rule that the lien for damages occasioned by negligent
towage takes precedence of liens for supplies previously furnished
the offending vessel rests upon the ground that the claim, like
those in case of collision, is one in tort arising out of duty
imposed by law and independently of any contract or consideration
for the towage. The John G. Stevens, supra, 170 U. S. 126
The Arturo, supra.
While respondent was not an insurer or liable as a common
carrier, it owed to the owner of the Drifter
the duty to
exercise such reasonable care and maritime skill as prudent
navigators employ for the performance of similar service. The
burden was upon petitioner to show that the loss for which he
sought recovery was caused by a breach of that duty. The mere fact
that the Drifter
was in good order when received by
respondent, and in damaged condition when delivered, does not raise
any presumption of fault. As said by this Court in The L. P.
(p. 120 U. S.
"To hold otherwise would require that, in every case, as between
the tow and its tug, the latter should be required affirmatively to
establish its defense against the presumption of its negligence. .
P. 120 U. S.
"Neither is it material that the facts of the case, and the
causes of the collision, are peculiarly within the knowledge of the
respondents. It is alleged in the present case, as one of the
inconveniences of the libelant's situation, that it would be
compelled, in order to establish the allegations of the libel, to
resort to the testimony of those navigating the respective tugs,
and thus call witnesses interested to exonerate the vessel to which
they were attached. We are not aware, however, of any ground on
which such an inconvenience can affect the rule of law which
Page 285 U. S. 203
the rights of the parties."
See The Webb, supra; Eastern Transportation Line v. Hope,
The rule has been applied in numerous cases in the
lower federal courts. *
There is nothing
about the injury itself to warrant any inference that it resulted
from fault or negligence on the part of respondent.
There is no support for petitioner's contention that, without
regard to the asserted presumption, the evidence shows that the
injury to the Drifter
was caused by negligence of
respondent. The facts to which he refers are these: the tug arrived
at the plant two hours late; respondent remained over night at
Bayonne without authority and left the Drifter
watchman; on the following morning, without effort to obtain the
services of Weston or another, the tug proceeded to Port Newark. He
calls attention to the absence of evidence further to show how the
was moored at Bayonne and whether she was lighted
during the night. On that basis, he argues that it is possible that
the injury occurred during the night; that the Drifter
"might have been rammed by some other boat or if the lines were
not slackened and the tide receded she might have been hanging on
the side of the dock as the result whereof, a pile might have stove
a hole in her side."
The burden of proof as to respondent's negligence remained upon
petitioner throughout the trial. His contentions clearly show that
the evidence leaves the time, place, and cause of the injury
Page 285 U. S. 204
in the realm of conjecture. The evidence is consistent with an
hypothesis that the tug was not negligent and with one that it was,
and therefore has no tendency to establish either. Gunning v.
Cooley, 281 U. S. 90
281 U. S. 94
and cases cited.
We find that respondent caused unnecessary parts of the record
to be printed amounting in all to 186 pages. This is admitted in a
statement filed by counsel for respondent. The cost of such
printing will be charged to respondent.Rule 13, par. 9.
* Wilson v. Sibley,
36 F. 379; The A. R.
57 F. 667; The W. H. Simpson,
80 F. 153;
Pederson v. Spreckles,
87 F. 938, 944-945; The El
162 F. 567; The Kunkle Bros.,
211 F. 540, 543;
The R. B. Little,
215 F. 87; The Atlantic City,
241 F. 62, 64; The Clarence L. Blakeslee,
243 F. 365;
Aldrich v. Pennsylvania R. Co.,
255 F. 330; The
270 F. 42; The W. H. Baldwin,
271 F. 411,
413; The Ashwaubemie,
3 F.2d 782; The Buttercup,
8 F.2d 281; Southgate v. Eastern Transp. Co.,
21 F.2d 47,