
    Wells & Tucker vs. The Steam Navigation Co. et al.
    
    The owners of a steamboat employed in the business of towing boats for hire are not common carriers.
    Nor are they bailees of any description. Per Bbonson, 3.
    Whether common carriers and innkeepers can contract for a more restricted liability than the law imposes upon them in the absence of a special agreement qitere, But other bailees and persons engaged in other employments may contract for a larger or more restricted liability than the law would imply against them.
    And therefore the owners of a steamboat employed in the business of towing other boats may restrict their liability by special agreement-.
    This was an action on the case, tried at the Chenango circuit, before Gray, circuit judge, in August, 1846. On the trial the case was this : In the spring of 1844, the plaintiffs were the owners of the canal boat Jay, and were engaged in transporting goods thereon, on the Hudson river, and on the Erie and Che nango canals, from New-York to Norwich, in the county of Chenango. Tucker, one of the plaintiffs, was also the mastei of the boat. The defendants were the proprietors of the steam boat Sandusky, the employment of which was to tow boats on the Hudson river between New-York and Albany. On the 20th of April, 1844, the Jay was at. the city of New-York, freighted with goods for Norwich; and the master applied at the office of the defendants, kept in that city, for the purpose of having his boat towed up to Albany. He received from the office a permit, signed by the agent of the defendants, in these words:
    “ New-York, April 24th, 1844.
    Captain Young, of steamboat Sandusky, take in tow for Albany, canal boat Jay,-master, at the risk of the master and owners thereof, and collect $25.
    For owners, • E. Dennis.”
    In pursuance of such permit the Sandusky took the Jay in tow, and with that and other boats in tow, started on the voyage. While proceeding up the river and when some three or four miles from the place of starting, the Jay struck against a dock or pier, at the upper part of the city, and by the collision was stove and sunk so that the boat and cargo were damaged to the amount of $>10,675.
    On this state of facts the defendants moved for a nonsuit and urged as one ground of the motion, that by the contract they were exempt from liability for any loss which did not arise from their gross neglect. The motion was denied and the defendants excepted. The. defendants then offered to prove that the master and crew of the Sandusky were persons of great skill and prudence, and had not been guilty of any want of care, skill or prudence in the present instance. The circuit judge ruled that such evidence would not make out a defence ; that the defendants were common carriers of the plaintiff’s boat and cargo, and were liable for the damage sustained thereto, unless it was occasioned by the act of God or the public enemy; and that they could not by any contract with the plaintiffs exempt themselves from such liability. The evidence so offered was accordingly rejected, and the defendants excepted. The plaintiffs had a verdict for the amount above mentioned. The supreme court having denied a motion for a new trial, made on bill of exceptions, the defendants appealed to this court.
    
      S. Stevens, for appellants.
    I. The law presumes that neither the defendants nor their servants have been guilty of gross negligence, fraud or breach of good faith ; and this presumption will prevail and protect the defendants, unless it is repelled by express, clear and unequivocal evidence of bad faith. (Williams v. The East India Co. 3 East, 192; Kinlock v. Palmer, I Mills’ Rep. of Const. Court of S. C. 224; Livingworth ads. Fox, Bay, 520—1; Marshall v. Lewis, 4 Litt. Rep. 140, 155; Hardin v. Bard's heirs, Litt. Select Ca. 346; Starr v. Peck, 1 Hill’s Rep. 272-3; Sill v. Thomas, 8 Car. & P. 761; S. C. 34 Com. Law Rep. 624; Fort v. Metayer, 10 Martinis Rep. 439.) The onus lies upon the plaintiffs to repel and overcome this presumption, and this can only be done by clear and unequivocal proof that the injury was occasioned by the bad faith of the defendants or their servants. See the cases cited above. Also, Story on Bailments, pp. 152, 3, §§ 212, 213; pp. 230—1, § 339; pp. 270, 1, § 410; Fleming v. Slocum, (18 John. Rep. 405;) Cooper v. Barton, (3 Camp. 5, in note;) Finucane v. Small, (1 Esp. Rep. 315.)
    II. The judge erred in excluding the evidence offered by the defendants. The defendants were not common carriers of the plaintiff’s boat or its cargo. (Caton v. Rumsey, 13 Wend. 387; Alexander et al. v. Greene, 3 Hill’s Rep. 9.) They were not engaged in the business of common carriers, and never had possession of the plaintiff’s boat or her cargo, as common carriers or otherwise. (East India Co. v. Pullen, 1 Strange, 690; Brine v. Dole, 8 Car. & P. 207; S. C. 34 Com. Law Rep. 355.) The defendants could maintain no action against arty person who should steal, or otherwise wrongfully take any part of the cargo of plaintiff’s boat, or who should commit any trespass upon the boat or cargo. They had no property, special or otherwise, in either. Is it not absurd, then, to say that the defendants were even bailees of the boat or goods for any purpose—much less common carriers ? (2 Black. Com. 452-3.) They were not bound to tow the plaintiff’s boat, unless they .chose to do so; but common carriers are bound to carry, upon request and tender of a reasonable reward. (Story on Bailments, p. 328, § 508.)
    III. But if the defendants are to be deemed common carriers of the boats which they tow, they had a legal, equitable and moral right to exempt themselves by contract from all liability for any loss or damage which might occur to the boat and cargo towed by them, from any cause except their own personal fraud or breach of good faith. Chitty on Contracts, 487, ed. of 1842; Story on Bailments, pp. 20-1, §§ 31, 32; Maving v. Todd, 1 Starkie’s Rep. 50; Leeson v. Holt, id. 148; Coke Litt. 89 a; Kenrigg v. Eggleston, Alleyn’s Rep. 93 (24 Car. I.); 4 Coke, 84, note to Southcote’s Case (1 James I.); Morse v. Sluce, 1 Ventris, 190, 238 (25 Car. II.); Tyly v. Morrice, Carth. 485 (11 Wm. III); Gibbon v. Paynton, 4 Burr. 2298 (9 Geo. III, 1769); Nicholson v. Willan, 5 East, 507 (1804); Harris v. Packwood, 3 Taunt. 271 (1810). For residue of English cases to the same point, see 5 Petersdorffs’ Abr. 64 to 75, Am. ed.; Orange Co. Bank v. Brown, 9 Wend. 115; Story on Bailments, p. 350, § 549.)
    
      J. A. Collier, for respondents.
    I. The defendants were common carriers, and were subject to all the responsibilities which the law imposes upon those acting in that character. Alexander v. Greene, 7 Hill, 533; Smith v. Pierce, 1 Louis. R. 349; Sprout v. Hemingway, 14 Pick. R. 1; Story on Bailm. § 495, 1st ed.; Slocum v. Fairchild, 7 Hill, 292, 296; Fish v. Chapman, 2 Kelly’s R. 349; Bouvier’s Law Dict., tit. “ Common Carriers”; 2 Kents Com. 3d ed., 597 to 600; Kinne’s Compendium, January No., 1849, tit. “ Carrier,” and authorities there cited; Hale v. N. J. Steam N. Co., 15 Conn. R. 539; Crosby v. Fitch, 12 Conn. R. 410, 418, 419, and authorities there cited; Mc Arthur v. Sears, 21 Wend. 190, 193; Powell v. Myers, 26 id. 591; Van Santvoord v. St. John, 6 Hill, 157, 159, 162; Patten v. Magrath, Dudley’s (S. C.) R. 169; Singleton v. Hilliard, Strobhert’s (S. C.) R. 203; 18 Verm. R. 140; Murphy v. Storm, 3 Munf. R. 239; 1 Smith’s Lead. Cas. 101, 103.)
    II. It was conceded on the trial that the loss was not occasioned by inevitable accident, and that the proof offered was not sufficient to exempt the defendants from liability, if they were held liable as common carriers. The permit, so called, did not exempt the defendants from such liability. (7 Hill, 292, 533; Schiffelin v. Harvey, 6 John. R. 170, 179; Camden and Amboy R. R. Co. v. Burke, 13 Wend. 611, 628; 21 id. 190, 194; 15 Conn. R. 539, 546, 548; Boyle v. McLaughlin, 4 Harris & John. 291.)
   Bronson, J.

The judge rejected evidence offered by the defendants to show that there had been no want of care, skill or prudence on the part of the master or crew of the Sandusky, and decided, that the defendants were common carriers of the plaintiffs’ boat and cárgo, and were liable for the damage which had been sustained, unless it was occasioned by the act of God, or the public enemy; and further, that the defendants could not, by any contract with the plaintiffs, exempt themselves from such liability. This presents two questions for our consideration, though if the judge was wrong upon either point, there must be a new trial.

1. It is a gi eat misnomer to call the defendants common carriers, or carriers of any kind in relation to the business of towing boats. Nor are they bailees of any description; for the property towed is not delivered to them, nor placed within their exclusive custody or control. It remains in the possession, and for most purposes in the exclusive care of the owners or their servants. There is no bailment within any definition of that term to be found in the books. But whether a bailment or not, it is clear that those who tow boats and vessels are not common carriers of the things towed. As we are all agreed in this opinion, and the point has been adjudged, (Caton v. Rumney, 13 Wend. 387, and Alexander v. Greene, 3 Hill, 9,) I will not discuss the question more at large. It is true that the judgment in Alexander v. Greene was reversed by the court of errors. (7 Hill, 533.) But what particular point or principle of law was decided by the court, or what a majority of the members thought upon any particular question of law, no one can tell. It appears by the reporter’s head note, that he could not tell; and from his note at the end of the case, it is apparent that the court itself could not tell. Two merchants and two lawyers thought the defendants were common carriers, while other senators expressed a different opinion, and went upon other grounds; and it does not appear that more than four of the seventeen senators who voted for the reversal were agreed concerning any one of the questions in the case. Two efforts were made hi the time to ascertain the ground of the judgmentbut both proved abortive; and thus the majority virtually said, that although the judgment was reversed, no point or principle of law was settled by the decision. It happened in that case, as it has happened on other occasions, that a majority of the members of that multitudinous court made up their minds to reverse a judgment, and they did it; but not being able to agree concerning the ground of their action, they plainly enough admitted that nothing was settled by the decision. The case is not an authority for any thing: it could only have been re Doi ted for the purpose of preserving the reasons of those who delivered opinions.

2. It is perhaps a debatable question whether common carriers and inn-keepers can contract for a more restricted liability than the law imposes upon them in the absence of a special agreement. (Gould v. Hill, 2 Hill, 623.) But there is no room for doubt that other bailees, and persons engaged in other employments, may contract for either a larger, or a more restricted liability than would be implied against them in the absence of a special contract. They are not, like common carriers and inn-keepers, bound to accept employment when offered ; nor, like them, are they tied down to a reasonable reward for their services. They are at liberty to demand an unreasonable price before they will undertake any work or trust, or to reject employment altogether; and they may make just such stipulations as they please concerning the risk to be incurred. They may become insurers against all possible hazards, or they may say, we will answer for nothing but a loss happening through our own fraud, or want of good faith. In short, the parties stand on equal terms, and can in this matter, as they may in others, make just such a bargain as they think will answer their purpose. There is, I believe, no authority to the contrary ; and on this question, as well as the other, we are all agreed. There must of course be a new trial.

Although the discussion at the bar took a wider range, there is no other question in the case; and if we should attempt to decide any other, we should neither bind ourselves, nor our successors.

New trial granted. 
      
       It has been frequently decided, both in the state and federal courts, that the owners of a tug-boat are not common carriers, but bailees for hire. Arctic Fire Insurance Co. v. Austin, 54 Barb. 559. Leonard v. Hendrickson, 18 Penn. St. 40. Brown v. Clegg, 63 Ibid. 51. Hays v. Millar, 77 Ibid. 238. The Enterprise, 3 Wall. Jr. C. C. 58. The Angelina Corning, 1 Ben. 109. The Thomas Riley, 5 Ibid. 301. The Neaffie, 1 Abb. U. S. 465. Brawley v. The Jim Watson, 2 Bond 356. The Stranger, Bro. Adm. 281. They ars liable, however, for negligence in the performance of the service contracted for. Wells v. Steam Navigation Co., 8 N. Y. 375. The Cayuga, 16 Wall, 177. The Caleb, 10 Bl. C. C. 467. The Morton, Bro. Adm. 137.
     