1. A towage company, in performing a contract to assist a vessel
propelled by her own power and manned by her officers and crew, is
neither common carrier nor bailee, and is not subject to the rule
that prevents common carriers, and others under like duty to serve
the public, from escaping by agreement liability for damage caused
by their negligence. P. 287 U. S.
Page 287 U. S. 292
2. In a contract merely to furnish tugs to assist a vessel while
using her own propelling power, it may validly be stipulated that
the tug captains, when they board the vessel, shall become the
servants of her owners, so that, for damage resulting from their
orders in piloting the vessel, the owners of the tugs shall not be
liable. P. 287 U. S.
55 F.2d 63 affirmed.
Certiorari, 286 U.S. 538, to review a decree affirming a decree
dismissing a libel in a suit in admiralty. For opinion of the
District Court, see
48 F.2d 598.
MR. JUSTICE BUTLER delivered the opinion of the Court.
This is a suit in admiralty brought by petitioner in the
Southern district of New York against respondent and three steam
tugs, Dalzellite, W. F. Dalzell,
and Fred B. Dalzell,
to recover damages alleged to have been caused by their
negligence to petitioner's tank steamer Sabine Sun.
court dismissed the libel., 48 F.2d 598. Petitioner appealed from
so much of the decree as dismissed the libel as to the towing
company. The Circuit Court of Appeals affirmed. 55 F.2d 63.
Respondent operates steam tugboats in and about New York harbor.
May 14, 1925, in anticipation of the arrival of the Sabine
Turnbull, petitioner's assistant marine superintendent,
arranged by telephone to have respondent send tugs to take her
through waters leading to Newark Bay and to a dock at Bergen Point,
N.J. There was no writing or formal contract concerning the service
to be rendered. The agreement pieced out from the oral order and
acceptance and prior like transactions between the parties included
as one of its terms the following clause:
"When the captain of any
Page 287 U. S. 293
tug engaged in the services of towing a vessel which is making
use of her own propelling power goes on board said vessel, it is
understood and agreed that said tugboat captain becomes the servant
of the owners in respect to the giving of orders to any of the tugs
engaged in the towage service and in respect to the handling of
such vessel, and neither the tugs nor their owners or agents shall
be liable for any damage resulting therefrom."
On the next day, the tanker anchored off Stapleton, Staten
Island. The W. F. Dalzell
came alongside, and Bennett, her
captain, went on board and acted as pilot. Using her own power and
accompanied by the tug, she got under way. The Dalzellite
joined them off St. George, and thence the three vessels went on
through the Kill van Kull. Off Port Richmond the Fred B.
became part of the flotilla. Fort, her captain,
then went upon the tanker and acted as pilot, relieving Bennett.
The tanker's captain, his third officer, a quartermaster and
Turnbull were also there. She continued on her way using her own
propelling power and assisted by the tugs. When rounding Bergen
Point, she went aground outside the channel, and it was then, as
alleged in the libel, that she sustained the damages for which
petitioner seeks to recover. She was backed off the obstruction,
turned into the channel, and, without other mishap, taken to the
In view of petitioner's failure to appeal from the dismissal as
to the tugs, we must assume that, as to them, petitioner failed to
make out its case, and that the stranding of the tanker was not in
whole or in part due to any fault of theirs. It was not shown that
respondent was to have, or at any time did have, control of the
tanker, or that it agreed or undertook to do more than to furnish
tugs to assist her while using her own propelling power. Her
master, officers, and crew were at their stations, and her
propelling power and steering apparatus were used to bring her to
destination. And, if the pilotage clause is
Page 287 U. S. 294
valid, the tug captains, while on board the tanker and
respectively acting as her pilot, were, for that turn, the servants
of petitioner, and the respondent may not be held responsible for
any act or omission of theirs during the period of that
The validity of its applicable provision cannot reasonably be
doubted. So far as concerns the service to be rendered under the
agreement, respondent was not a common carrier or bailee or bound
to serve or liable as such. Towage does not involve bailment, and
the services covered by the contract were less than towage.
Stevens v. The White City, 285 U.
, 285 U. S. 200
There is no foundation in this case for the application of the
doctrine that common carriers and others under like duty to serve
the public according to their capacity and the terms of their
undertaking cannot by any form of agreement secure exemption from
liability for loss or damage caused by their own negligence.
Railroad Co. v.
17 Wall. 357; Liverpool & G. W.
Steam Co. v. Phenix Ins. Co., 129 U.
, 129 U. S. 440
Respondent had no exclusive privilege or monopoly in respect of the
services that petitioner desired to have performed for its tanker.
And petitioner was under no compulsion to accept the terms of
respondent's pilotage clause. There is nothing to suggest that the
parties were not on equal footing, or that they did not deal at
"There is no rule of public policy which denies effect to their
expressed intention, but, on the contrary, as the matter lies
within the range of permissible agreement, the highest public
policy is found in the enforcement of the contract which was
Santa Fe, p. & P. Ry. Co. v. Grant Brothers,
228 U. S. 177
228 U. S.
Respondent's responsibility is not to be extended beyond the
service that it undertook to perform. It did not furnish pilotage .
The provision that its tug captains, while upon the assisted ship,
would be the servants of her
Page 287 U. S. 295
owner, is an application of the well established rule that, when
one puts his employee at the disposal and under the direction of
another for the performance of service for the latter, such
employee, while so engaged, acts directly for, and is to be deemed
the employee of, the latter, and not of the former. Denton v.
Yazoo & M.V. R. Co., 284 U. S. 305
284 U. S. 308
It would be unconscionable for petitioner, upon occurrence of a
mishap, to repudiate the agreement upon which it obtained the
The decree under consideration is not in conflict with the
decisions of this Court cited by petitioner, The
12 Wall. 167, and Compania de
Navegacion v. Ins. Co., 277 U. S. 66
Neither involved an agreement similar to the provisions of the
pilotage clause on which this case turns.