Facts
- A newly completed 45-foot motorboat, the Drifter, needed towage from Morris Heights, New York, to Port Newark to be placed alongside a steamer for shipment.
- An employee of the builder arranged towage; the excursion tug White City (owned and operated by its owners) performed the tow.
- The Drifter was attached to the tug with a towline; a cradle was towed behind the Drifter.
- A builder’s employee was placed aboard the Drifter primarily to tend lines upon arrival.
- During transit near Hell Gate, the cradle detached and was reattached after a delay; no damage to the Drifter was observed at that time.
- Upon delivery at Port Newark, the Drifter was found with a round dent in its hull planking.
- The time, place, and cause of the damage were not established, and the damage itself did not indicate tug fault; the tug’s owners could not explain when, how, or where it occurred.
Issues
- Whether an ordinary towage contract creates a bailment of the tow, such that unexplained damage permits a presumption of tug negligence.
- Whether proof that the tow was received in good condition and delivered damaged, without more, shifts the burden of proof or establishes a prima facie case of tug negligence.
- What duty a tug owes under an ordinary towage contract, and whether the tug is liable as an insurer or common carrier.
Decision
- The Supreme Court affirmed the judgment for the tug, rejecting liability based on bailment and presumed negligence.
- An ordinary towage contract does not create a bailment; the tug receives only the control necessary to perform towage.
- The claim for tow damage based on alleged tug negligence is ex delicto; the tow owner bears the burden to prove a negligent breach of duty.
- The tug is not an insurer or common carrier; its duty is reasonable care and maritime skill used by prudent navigators in similar service.
- The unexplained fact of damage—good condition at commencement and damage at delivery—does not, by itself, create a presumption of negligence.
- Where evidence leaves the time, place, and cause of the injury unknown and is as consistent with non-negligence as negligence, the tow owner has not carried the burden of proof.
- The Court also noted that a party responsible for printing unnecessary parts of the appellate record may be charged the associated printing costs under the Court’s rules.
Legal Principles
- Ordinary towage does not constitute a bailment and does not transfer exclusive possession and control of the tow to the tug.
- A tug is not liable as an insurer or common carrier; it must exercise reasonable care and maritime skill consistent with prudent navigation.
- A tow owner suing for damage allegedly caused by tug negligence must prove that the injury resulted from a breach of the tug’s duty of care.
- No presumption of tug negligence arises solely from proof that the tow was received in good order and delivered damaged.
- Speculative evidence that does not establish the time, place, or cause of damage is insufficient to prove tug negligence.
Conclusion
The Court held that ordinary towage is not a bailment and does not trigger a presumption of negligence from unexplained damage; because the tow owner could not prove that the tug’s lack of reasonable maritime care caused the injury, recovery was denied.