William O. Douglas

“ The Court of Appeals felt justified in reaching a different construction of a similar agreement because it had become clear that a tug is not in relation to the tow a common carrier and thus, the court reasoned, no risk could now be referred to by such clauses except the tug's negligence. The discussion of the majority related entirely to construction, not to validity. The later statement on rehearing 'We do appreciate keenly that the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions. ”

“ 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.'
If the tug is only a contract carrier, it is not liable for injury to the tow in the absence of negligence. ”

“ It is safe to say that, aside from temporary intra-circuit conflicts within the Second Circuit, [12] never since ordinary towage has been recognized as not amounting to common carriage [13] has there been a decision in any district court holding invalid clauses which were clearly designed to relieve a tug from liability in the course of its service as a private carrier. Every decision is either limited to a construction of the clause or, if expressions concerning validity appear, they are the merest dicta. ”

“ This creative judicial function of making admiralty law remains unimpaired, so that it is within the Court's jurisdiction now to announce, as new doctrine, that tow and tug may not by agreement relieve the tug of liability for damage to the tow caused by the tug's negligence. Of course, the Court should not restrict the area of full bargaining between tow and tug unless an overriding public interest calls for such restriction. ”

“ Reliance is placed on the unique position of pilots in the maritime world and the extensive regulation to which they are subjected: they are assimilated to public officers. If the pilotage involved in Sun Oil took place in the detailed regulatory context thus suggested, decision in this case should follow a fortiori from Sun Oil in allowing the agreement of the parties to stand. ”

“ Towage does not involve bailment, and the services covered by the contract were less than towage. * * * 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. ”

“ In conducting their affairs, men naturally assume that courts will not unsettle a settled rule for the conduct of business, certainly not unless experience has made manifest the need for overturning the law. ”

“ The reasons stated by Judge Coxe seem, therefore, as germane to the contract carrier as to the common carrier.
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. ”

“ The Steamer Syracuse therefore could not have decided, and it did not purport to decide, the validity of such an exemption. The Wash Gray, 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787, purports to be no more than a decision on a question of construction, in which The Steamer Syracuse was cited as precedent for placing a narrow construction on exculpatory clauses.
(2) The Circuits other than the Ninth do not disclose decisions that towboats cannot by contract escape liability for negligent towage. In the Ninth there is talk, not decision. ”

“ The Brauer case involved a contract for carriage of cattle on the deck of a steamer "at owner's risk; steamer not to be held accountable for accident to or mortality of the animals, from whatever cause arising". The contract specified that it was to be interpreted according to English law. A libel against the shipowner was brought for the loss of the cattle which, during a storm at sea, had been unnecessarily driven overboard by the crew. ”

“ The masters and crews and employees of all boats and/or other equipment assisting the 'craft to be towed' shall, in the performance of said service, become and be the servants of the 'craft to be towed,' regardless of whether the 'craft to be towed' assists in the service in any way and irrespective of whether they be aboard the 'craft to be towed' or in command thereof. ”