349 U.S.

122
75 S.Ct. 649
99 L.Ed. 933

BOSTON METALS COMPANY, Formerly Named Boston

Iron and Metal Company, As Owner of the Canadian
Destroyer THE ST. FRANCIS, Petitioner,
v.
THE S/S WINDING GULF and Massachusetts Trustees of
Eastern Gas and FuelAssociates.
No. 70.
Argued March 1, 1955.
Decided May 16, 1955.

Mr. John H. Skeen, Jr., Baltimore, Md., for petitioner.

Mr. Charles S. Bolster, Boston, Mass., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, Boston Metals Company, brought this suit in admiralty against
the steam vessel Winding Gulf and her owners to recover for loss of its obsolete
destroyer which sank after colliding with the Winding Gulf. The collision
occurred while the destroyer was being towed by the tug Peter Moran; the
destroyer itself was without power or crew. The owners of the Winding Gulf
filed a cross-libel against petitioner, charging that the collision was due to
unseaworthiness of the destroyer. After hearings, the District Court found that
the collision was due to negligent navigation by the Winding Gulf, to
inadequate lights on the destroyer and absence of a crew on the destroyer to
keep its lights brightly burning. This absence of lights and crew the District
Court found was the fault of the master of the tug Peter Moran. The tug
master's negligence, however, was imputed to the petitioner because of
provisions in the towage contract that the master and crew of the tug would
become the servants of the petitioner and that the towing company would not
be responsible for their negligent towage. On this basis, the District Court
entered a decree in favor of the cross-libellant against petitioner which resulted
in dividing the damages equally between petitioner and respondents. 72 F.Supp.

50. The Court of Appeals affirmed on the same grounds. 209 F.2d 410. We
granted certiorari. 348 U.S. 811, 75 S.Ct. 26.
2

In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, we held invalid
a contract designed to shift responsibility for a towboat's negligence from the
towboat to its innocent tow. That holding controls this case. For whatever this
contract said, here as in the Bisso case, the persons who conducted these
towing operations were in fact acting as employees of the towing company, not
as employees of the owner of the tow. Under these circumstances it was error to
hold petitioner liable for negligence of the towing company's employees. Cf.
The Adriatic, 30 T.L.R. 699.

Reversed.

Mr. Justice HARLAN took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER, concurring.

Release-from-liability clauses generally, and specifically with regard to towage

contracts, are not to be applied to alter familiar rules visiting liability upon a
tortfeasor for the consequences of his negligence, unless the clarity of the
language used expresses such to be the understanding of the contracting parties.
Even when such a clause undeniably alters the normal relationship between tug
and tow as to some aspects of liability for negligence, it is not to be construed to
impose every consequence of the tug's negligence upon the tow unless the
clause decisively requires this result. See The Devonshire and St. Winifred,
(1913) P. 13; The Richmond, 19 T.L.R. 29 (P.D.).

The issue before us in this case is not the bare question whether the tow has
contracted away its right to recover damages caused by the negligence of the
tug. It is whether in addition the tow has undertaken to become directly liable to
all third parties injured as a consequence of the negligence of the tug.

These are the relevant clauses governing the towage here:

'2. Tug services will be supplied upon the condition that all towing * * * of a
vessel or craft of any character by a tug or tugs owned or employed by the Tug
Company is done at the sole risk of such vessel or craft and of the owners,
charterers or operators thereof, and that the Master and crew of such tug or tugs
used in the said services become the servants of and identified with such vessel

or craft and their owners, and that the Tug Company only undertakes to provide
motive power.
10

'3. The Tug Company will not be responsible for the acts or defaults of the
Master, or crew of such tug or tugs, or any of their servants or agents or else
whosoever, nor for any damages, injuries, losses or delays from whatsoever
cause arising that may occur either to such vessel or craft, or property or
persons on board thereof, or to any other ship or vessel or property of any kind
whether fixed or movable and the Company shall be held harmless and
indemnified by the Hirer against all such damages, injuries, losses and delays,
and against all claims in respect thereof.

11

'4. Such exemption from liability shall apply regardless of whether such vessel
or craft assists in the services with its own steam or power or in any other way,
and irrespective of whether any employee of the Tug Company or the Master,
or any of the crew of such tug or tugs is at the time of said services on board of
such vessel or craft, or in command thereof.

12

'5. The foregoing conditions shall apply to any damages, injuries or loss from
whatsoever cause arising that may occur to the vessel or craft requiring the tug
or tugs or to any other vessel or craft, or to any person or property on board
thereof, or to any other property whether fixed or movable, while such tug or
tugs is or are in attendance upon * * * the vessel or craft * * * provided
however that the said conditions shall not apply to loss or damage to the tug or
tugs or to property on board the tug or tugs or to damages for personal injuries
to or loss of life of members of the crews of the tug or tugs or persons on board
thereof, unless such loss or damage or such damages for personal injuries or
loss of life shall have been caused or contributed to by the fault or negligence of
the vessel or craft requiring the tug or tugs.'

13

Is the significance of these clauses to permit a third party, injured by collision

with the tow due to the negligence of the crew of the tug, to proceed directly
against the owner of the tow by virtue of this clause?

14

The District Court refused to allow the third party to invoke the indemnity
clause, but apparently held that the contract made the faults of the tug
attributable to the tow, imposing a vicarious liability upon its owner.1 The
Court of Appeals reasoned that since the tow had agreed to indemnify the tug
against claims of third parties, the third party could proceed directly against the
tow because 'The libel was filed by the owner of the tow who had agreed to
take the risk of the enterprise and pay any damages that might be incurred, and

as was said by Judge Learned Hand in The Kookaburra, 2 Cir., 69 F.2d 71, 73,
'the admiralty, whose procedure is especially plastic, can skip the by-ways and
head direct for the goal." 209 F.2d 410, 414.
15

In the absence of the contractual provisions quoted, the owner of the tow would
not be liable to the third party. Sturgis v. Boyer, 24 How. 110, 16 L.Ed. 591;
The Eugene F. Moran, 212 U.S. 466, 473, 29 S.Ct. 339, 53 L.Ed. 600. On the
other hand, the tow did agree to indemnify the tug against liability in the
circumstances here involved. But a promise to indemnify is a promise running
to the indemnitee, here the tug, and is not ordinarily construed as a contract for
the benefit of third parties. Nor does an agreement to hold another harmless
against claims of third parties, if it conveys anything more than the term
'indemnify,' suggest that the contract was intended for the benefit of third
parties.

16

It is true that the clause states that the members of the crew are to 'become the
servants of and identified with such vessel or craft' and that the tug will 'not be
responsible' for their acts. If in fact this were the relationship, the tow would be
liable directly to third parties. This was not the fact, however, and any liability
of the tow to the Winding Gulf can only be based upon the contractual
language.2 But the history of towage and pilotage release-from-negligence
clauses suggests that this terminology is merely an attempt to phrase a
disclaimer of liability applicable to a towage service in the terms of the pilotage
clause successfully invoked in Sun Oil Co. v. Dalzell Towing Co., 287 U.S.
291, 53 S.Ct. 135, 77 L.Ed. 311. Like all attempts to describe desired legal
consequences through use of inapposite concepts, the momentum of the
symbolic concept may induce consequences beyond those which the true
nature of the problem justifies.3 Placed in its commercial and judicial context,
the phraseology does not sufficiently indicate an agreement to undertake direct
liability to third parties.4 There are good reasons why this should not be
undertaken, among them the fact that in a suit to which the tug is not a party it
may be difficult to obtain the full assistance of the tug in establishing
nonliability or avoiding an unfairly larger recovery than might have been or
subsequently is had against the tug.

17

The only remaining question then is whether the fact that the tow owner
instituted this libel against the third party should permit the third party to assert
as a defense, or affirmatively as a cross-libel in this case, the claim against the
tug. The quotation cited by the Court of Appeals from The Kookaburra is not in
point for there all parties were before the court, and the question was one of
contribution. In such a situation circuity of action may be avoided without the
danger of injury to any of the parties. But it is no defense to an action for

negligence that a claim over against an absent third party exists, and the
situation is not different because the absent third party in turn would, if held
liable, be entitled to indemnity from the libellant.
18

Mr. Justice DOUGLAS, concurring.

19

I join in the opinion of the Court. I do not think we know enough about the
economics and organization of this business1 to change the established rule of
The Steamer Syracuse, 12 Wall. 167, 171, 20 L.Ed. 382, and The Wash Gray,
277 U.S. 66, 73, 48 S.Ct. 459, 460, 72 L.Ed. 787, that a tug may not contract
against her own negligence.

20

I agree with the Court that Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53
S.Ct. 135, 77 L.Ed. 311, was not a departure from that rule. In that case the
vessel which was being assisted by the tugs was under her own power and was
manned by her own crew. The negligence was that of a tug captain on board the
vessel under tow. The Court enforced the contract, which made his negligence
the negligence of the vessel, under the familiar 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.' Id., 287 U.S.
295, 53 S.Ct. 136.

21

In the Sun Oil case, the tug was not a common carrier or a contract carrier. It
was merely assisting a vessel under her own power. Here we are dealing with
dead tows, where the tug and the tug alone is in control, where the tows are
without power and without crews.

22

In that situation, the tugboats are common carriers 2 when they so hold
themselves out, State of Washington ex rel. Stimson Lumber Co. v.
Kuykendall, 275 U.S. 207, 48 S.Ct. 41, 72 L.Ed. 241, Cornell Steamboat Co. v.
United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978, or contract carriers.

23

So far as we know, the tugboats in the present cases are as much common
carriers as the tugboats in the Cornell Steamboat case and the Stimson Lumber
Co. case.

24

Common carriers may not 'by any form of agreement secure exemption from
liability for loss or damage caused by their own negligence.' Sun Oil Co. v.
Dalzell Towing Co., supra, 287 U.S. 294, 53 S.Ct. 136. See New York Cent. R.
Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 927; Liverpool & Great Western

Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. The
reasons are as germane to a tugboat that is a contract carrier as they are to a
tugboat that is a common carrier. They were well stated by Judge Coxe,
dissenting in The Oceanica, 2 Cir., 170 F. 893, 896:
25

'It ought to be against public policy to permit a vessel to contract against her
own fault. To allow her to do so begets recklessness, carelessness and neglect.
The same reasons for prohibiting such a contract in the case of common carriers
apply, though not, perhaps, to the same extent, in the case of a towage contract.
In both cases the design is to prevent those who have the absolute control of
another's property from extorting an agreement that they may neglect all
reasonable precautions to preserve it.'

26

If the tug is only a contract carrier, it is not liable for injury to the tow in the
absence of negligence. See Stevens v. The White City, 285 U.S. 195, 52 S.Ct.
347, 76 L.Ed. 699. But though a contract carrier, the tug may as effectively
command the market and have as complete control of the tow and cargo as any
common carrier. The reasons stated by Judge Coxe seem, therefore, as germane
to the contract carrier as to the common carrier.

27

It may be that the rule of The Steamer Syracuse is outmoded and should be
changed. It may be that the tugboat industry is less able to carry the risks of
those losses than its customers. It may be fairer in the long run to let the
tugboat operator free himself from his own negligence and transfer the liability
to the shippers who employ his services. But the very statement of the problem
raises large questions of policy on which the present records throw no light. We
would have to know much more about the economics and organization of the
tugboat industry than we are offered here to fashion a new rule.3 Accordingly, I
would continue to enforce the established rule of The Steamer Syracuse that has
its roots deep in history and experience, until and unless Congress adopts
another one.

28

Mr. Justice BURTON, whom Mr. Justice REED joins, dissenting.

29

Recognizing the validity of the agreement that 'the Master and crew of such tug
or tugs used in the said (towing) services become the servants of and identified
with such (towed) vessel or craft and their owners,' I would give that agreement
full effect. To me, the agreement is sufficient to make the tow owners directly
liable to third parties for the acts of the Master and crew who thus become their
servants. Accordingly, I would affirm the judgment of the Court of Appeals.

72 F.Supp. 50. Respondent contends that in fact the District Court held that the
owners of the tow were personally negligent in entering into the arrangement
without taking steps to insure that the towage would be properly performed.
There are some phrases in the opinion which tend to support this view, but on
the whole it is not consistent with the course of reasoning of the District Judge.
It was not the view taken by the Court of Appeals, and we would not be
justified in adopting it.

Cf. The Adriatic and The Wellington, 30 T.L.R. 699 (P.D.), in which the third
party sued tug and tow, relying on a similar clause of the towage contract
declaring the tug's crew to be servants of the tow. The tow was held not liable.
In view of the English doctrine regarding contracts for the benefit of third
parties, our problem of construction of the contract did not arise.

See Guy v. Donald, 203 U.S. 399, 406, 27 S.Ct. 63, 64, 51 L.Ed. 245: 'As long
as the matter to be considered is debated in artificial terms there is a danger of
being led by a technical definition to apply a certain name, and then to deduce
consequences which have no relation to the grounds on which the name was
applied.'

Note that the clause involved in Bisso v. Inland Waterways Corp., 349 U.S. 85,
75 S.Ct. 629, similar to the present one in most respects, expressly states that it
is not to be construed to make the owner of the tow liable to third parties.

Aspects of the economics of the tugboat industry in New York Harbor are
shown in Harbor Fleet, 27 Fortune 99 (May, 1943); Docking Leviathans in the
World's Busiest Harbor, 75 Travel 4 (June, 1940); Friendly Ushers of New
Page 128-Continued.
York Harbor, Christian Science Monitor Magazine Section, July 14, 1937, p. 8;
Tugging in the Big Time, Saturday Evening Post, Mar. 24, 1945, p. 26;
Admiral Moran's Private Navy, Collier's, Jan. 15, 1949, p. 9; Earnings on
Tugboats and Barges in New York Harbor, Jan. 1945, 61 Monthly Labor
Review 1192.
For an English historical account see Bowen, A Hundred Years of Towage
(1933).

If they are common carriers, they may be subject to pervasive regulation by the
Interstate Commerce Commission under Part III of the Interstate Commerce
Act, 54 Stat. 898, 929, 49 U.S.C. 901, 905 et seq., 49 U.S.C.A. 901, 905,
as Cornell Steamboat Co. v. United States, supra, held. If they are contract
carriers, certain of their activities may likewise be subject to regulation under

that Act. See, for example, 49 U.S.C. 906(e), 907(i), 913917, 49 U.S.C.A.
906(e), 907(i), 913917.
3

Available statistics of the tugboat industry do not show the breakdown, port by
port, between common carriers and contract carriers. Nor do they show how
many of the contract carriers are 'captive' carriers, servicing one company. Nor
do they give a picture of the competitive or monopolistic conditions prevailing
in the various ports. We would need an economic brief to enlighten us, if we
were to undertake to reformulate the established rule.