
    THE CAR FLOAT NO. 37. NEW YORK CENT. R. CO. v. LONG ISLAND R. CO. THE TALISMAN.
    No. 274.
    Circuit Court of Appeals, Second Circuit.
    April 4, 1932.
    
      Burlingham, Vcoder, Feary, Clark & Hupper, of New York City (Chauncey L Clark and Paul Tison, both of New York City, of counsel), for claimant-appellant Lone- Island R Co * ‘
    r „ Bigham, Englar, Jones & Houston, oi New York City (Leonard J. Matteson and charles A. Van Hagen, Jr., both of New York City, of counsel), for libelant-appellee Now Yoi’k Cent R Co
    Purdy & of New York City (William F. Purdy and John E. Purdy, both of Now York City, of counsel), for Erie R. Co amici curia;
    Lefoi'e L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   AUGUSTUS N. HAND, Circuit Judge.

This is an appeal from an interlocutory decree in admiralty holding the steam tug' Talisman, belonging to claimant Long Island Railroad, liable for damages sustained by th* car float No. 37, belonging to New York n , •, -r> n j xr 0/7 ___ i j. Central Railroad. ISTo. 37 was moored at , . ij j • i • r r i claimant's terminal m Long1 Island City. j • •, n __ r vrAW East River, and was damaged by JSew York Central car float No. 58 in tow of claimant’s tug Talisman. The collision and damage occurred on October 29, 1926, and was caused solely through the negligence of the tug Talisman while engaged in shifting No. 58 to a point at the same terminal where No. nrr j ^ ’

On July 31, 1920, libelant received a notice from the Long Island Railroad by registered mail stating' that:

“On and after September 1, 1920, the following conditions will apply to all floating equipment lying at Long Island Railroad Company terminals, Long Island City, and Bay Ridge, Brooklyn: All vessels, floats or • any kind of floating equipment, lying at the Long Island Railroad terminal, Long Island City or Bay Ridge, Brooklyn, are at the risk o£ the vessel, float, or craft.
“This company will not be responsible for any damage received by said floating equipment while lying at the above mon-tioned terminals, whether said damage arises through the negligence of this company and/or its employees or through other, eaus-es.

There was no proof of any objection on the part of the New York Central to the terms outlined in. the foregoing notice, although it does not appear what, if any, use it made of the Bong1 Mand Railroad’s terminal between September 1, 1920, and the time o£ the collision.

. The tnal iMge held tbat notice dld n°t suffiee to rollove the Talisman from liability, for the reason that it could not contract against its own negligence.

Both railroads at the time of the acolwere common carriers engaged in inlátate commerce, and the claimant received car float No. 37 at its terminal a,t City ^connection with tonsPortation m interstate commerce of freight ears and In sucb. ™mstances a notice imposing the conditions under wln.cn floating equipment would be received justi£he Long Island Railroad Company in receiving the equipment at its terminal upon the conditions specified in the notice in the abseneepf some statute or rule of public policy prohibiting a contract against its own negligence.

It cannot be said that, because the no-was old one, given six years before it had no efficacy. Railroads must certainly , , , . *, . . _ * - - be deemed to nave m mind formal notices Tl . , ,, that are served upon them, it is probably n ~ \ - '[ tho £act tbat ^ork Central had sent ™any car floats tothe Long Island.Railroad t™al m tho interval between the service °fc ^ notlce alld .tbe date °£ the aceideat' tívont¿ l£ an?[ “í™6 mfht be d™ £rom Proo£ tllat l£ dld n0t> an absence oi dealing or otlier presumptive abandonment of the terms specified in the notice ^onld have been shown by the libelant, the matter stands, we have a notice giving the terms upon which the Long Island Railroad would receive floating equipment at its terminal and when the New York Central sent its ear float there it must ho regarded as having accepted the offer to receive it upon the terms indicated. Ten Eyck v. Director General (C. C. A.) 267 F. 974; The Cutchogue (C. C. A.) 10 F.(2d) 671; Sun Oil Co. v. Dalzell Towing Co. (C. C. A.) 55 F.(2d) 63.

The situation is quite different from that in McWilliams Bros. v. Davis (C. C. A.) 285 F. 312, where a notice had been served by the Director General as operator of the Pennsylvania Railroad, stating that all towing of barges would be done at the risk of the tow, and that neither the tugs nor the Director General would be responsible for any damage done through negligence of the masters and crews of the tugs while engaged m the towage service. McWilliams Bros., who owned the barges in that case, served a notice declining to accept any limitation of ordinary liability for towage. We held that, where the Director General undertook to-perform a towage service for McWilliams Bros, after receipt of the -notice from it declining to accede to limitation of liability, the contract was made without reference to the limitation clause. In the present case, however, there was no objection to the terms of the notice, and the New York Central was accordingly in the position of one accepting an offer to receive its equipment without liability for negligence.

The question in the present case is whether the carrier was free to make such conditions as to liability as it thought best. If it was, there was a good contract, and the Long Island Railroad Company is not liable. Baltimore & Ohio, etc., Railway v. Voigt, 176 U. S. 498, 20 S. Ct. 385, 44 L. Ed. 560; Owen McCaffrey’s Sons v. Director General (D. C.) 282 F. 728; McCormick v. Shippy (C. C. A.) 124 F. 48; Long v. Lehigh Valley R. R. Co. (C. C. A.) 130 F. 870; Graves v. Davis, 235 N. Y. 315, 139 N. E. 280; Foreign T. & M. Co. v. Moran T. & T. Co., 57 F.(2d) 143, decided by us April 4, 1932.

Ten Eyck v. Director General (C. C. A.) 267 F. 974, and The Cutchogue (C. C. A.) 10 F.(2d) 671, were towage cases where the carrier, sought to be held liable irrespective of its attempt to limit liability for its own negligence, was regarded as within itsi rights because the barge was not obliged to obtain the service. The distinction drawn by the trial court relied on the fact that the New’ York Central was obliged to go to the terminal and the Long Island Railroad Company was obliged to receive the New >'York Central float and to furnish it terminal facilities. The claimant, therefore, was thought to be in a position similar to that of a common carrier dealing with a passenger or shipper of freight. But the rule limiting the right of a common carrier to contract against its own negligence in dealing with passengers and shippers does not necessarily apply to dealings between connecting carriers, who are in many aspects treated as equals, neither of which is entitled to any special privileges or protection in the making of contracts. Central R. Co. of New Jersey v. Anchor Line (C. C. A.) 219 F. 716.

Under Interstate Commerce Act, § 3, par. 3, 49 USCA § 3(3), carriers engaged in the transportation of passengers or property must afford reasonable facilities for the interchange of traffic between their respective lines. Under section 3, par. 4, 49 USCA § 3(4), “if the commission finds it to be in the public interest and to be practicable, without substantially impairing the ability of a carrier owning or entitled to the enjoyment of terminal facilities to handle its own business, it shall have power to require the use of any such terminal facilities, * * * on such terms and for such compensation as the carriers affected may agree upon, or, in the event of a failure to agree, as the Commission may fix as just and reasonable for the use so required, to be ascertained on the principle controlling compensation in condemnation proceedings.”

Under section 3, par. 4, of the Interstate Commerce Act, connecting carriers are at liberty to agree upon “terms” for the use of terminal facilities. By reason of the notice received by the New York Central without comment, we must hold that it acquiesced in the “terms” indicated in the notice, and that, when it sent its ear float to the terminal, it contracted that the Long Island Railroad should be free from liability for damages suffered through the latter’s negligence.

The meaning of the word “compensation” in paragraph 4 might be restricted to charges to be paid for furnishing “terminal facilities.” But the word “terms” is broad, and naturally includes everything which may be regarded as a consideration for affording these facilities, including in the present ease a relinquishment of claims against the Long Island Railroad for damages occasioned by the not unlikely negligent operations of its tugs about the entrance to the terminal. We think that subdivision 4 clearly shows that the carriers were free to contract as to the terms on which “terminal facilities” were 'furnished, and that the New York Central was under no obligation to accept the terms offered if it was dissatisfied with them. It contracted without an appeal to the Commission. The act plainly contemplates that it may do this. Having done so, it is in a similar position to that of the owners of the floating equipment in Ten Eyck v. Director General (C. C. A.) 267 F. 974, and The Cutchoguo (C. C. A.) 10 F.(2d) 671, where the railroads had given notiee that they would not be liable for injuries arising from negligent towage or shifting.

It cannot be said that the Long Island Railroad furnished no consideration for affording terminal facilities, because it was obliged to furnish them in any event. It was not obliged to furnish them, upon any terms, for, if the Central had refused to accede to its proposal, it could have appealed to tht Commission. When it agreed upon terms, it gave up that right. We find nothing in the record indicating that the “terms” were not freely agreed upon by the two carriers, though they would have been open to revision if libelant had declined to accede to the arrangement. In such cireumsl anees no rule of public policy is involved. The common law does not inhibit the contract, and the Interstate Commerce Act recognizes the right to make it. If Congress had intended further limitations npon the power to contract, it would doubtless have imposed them. Accordingly, the parties are in a position where, as was said in Gooch v. Oregon Short Line R. R. Co., 258 U. S. 22, 42 S. Cl. 192, 193, 66 L. Ed. 443, Congress must have been “satisfied to leave them to the Interstate Commerce Commission and the common law.”

The New York Central has proved no canse of action against the tug Talisman. The decree is accordingly reversed,' with costs, and the cause remanded, with directions to dismiss the libel.  