## Facts

- The United States, owner of the S.S. *Christopher Gale*, hired Dauntless Towing Line to assist in moving the *Gale* from Hoboken to a Brooklyn pier using two Dauntless tugs.
- The *Gale* proceeded under its own power, guided by a Dauntless tug captain who boarded the *Gale* to direct the operation.
- The towage contract included a “pilotage clause” stating that a tug captain/pilot aboard the assisted vessel would become the assisted vessel’s servant as to giving orders to the assisting tugs and handling the vessel, and that the tug provider and its tugs “shall not be liable for any damage resulting therefrom.”
- During the maneuver, following the pilot’s orders, one Dauntless tug was crushed between the *Gale* and a pier.
- Dauntless sued the United States in admiralty, alleging the pilot’s negligent orders caused the damage and that, under the pilotage clause, the pilot’s negligence was attributable to the United States.
- The district court found the pilot negligent (persisting in attempting to enter a slip despite wind and tide) and entered judgment for Dauntless; the Second Circuit affirmed.

## Issues

1. Whether the pilotage clause permitted the tug owner to recover from the shipowner for damage to the tug caused by negligent pilotage of the tug owner’s captain while directing the operation from aboard the assisted vessel.
2. Whether the clause’s “not liable for any damage” language operated only as an exculpatory defense against claims, or also as an affirmative loss-shifting provision in favor of the tug owner.

## Decision

- The Supreme Court reversed the Second Circuit.
- The Court held the pilotage clause did not authorize Dauntless to recover from the United States for damage to Dauntless’s own tug caused by negligent pilotage by Dauntless’s captain.
- The clause was construed as relieving the tug provider from liability for damages resulting from the pilot’s orders, not as creating an affirmative right of recovery against the assisted vessel’s owner.

## Legal Principles

- Contract language providing that a tug provider “shall not be liable for any damage” resulting from a pilot’s orders is an exculpatory provision against claims; it does not, without clear terms, shift to the assisted vessel’s owner the tug provider’s own loss for damage to its tug.
- A “borrowed servant” designation for pilotage purposes does not, by itself, create a right of indemnity or affirmative recovery for the tug provider’s own property damage caused by its employee’s negligent pilotage.
- Courts will avoid construing towage/pilotage clauses to produce the result that a tug owner both avoids liability for its pilot’s negligence and also recovers from the shipowner for damage caused by that same negligence.

## Conclusion

The Court rejected a reading of the pilotage clause that would have allowed the tug owner to shift onto the shipowner the loss for damage to the tug caused by the tug owner’s pilot’s negligent handling of the operation, holding that the clause functioned only as a limitation on the tug owner’s liability, not as a basis for affirmative recovery.


United States v. Nielson, 349 U.S. 129 (1955)