
    Alexander, and others vs. Greene and others.
    The owners of a steamboat who undertake for hire to tow a canal boat and her cargo, her master and hands remaining on board and in possession, are not common carriers, but only responsible as ordinary bailees for hire; and this, though they carry on the towing of boats as a business, holding themselves out as ready to engage for all who may desire their services.
    Though common carriers cannot stipulate for a restricted liability, other bailees may; and hence, a special contract by the latter for exemption from all liability arising from want of ordinary care and skill, is valid.
    Accordingly, where a canal boat laden with merchandize was towed by a steamboat, under a permit stating, as the terms of the undertaking, that the canal boat was to be towed at the risk of her master, $c.; Held, that though the canal boat was sunk on the passage, by reason of a want of ordinary care on the part of those having charge of the steamboat, the owners of the latter were not liable.
    A bailee, however, cannot in this way secure against liability for loss or damage occasioned by fraud; for the law will not tolerate that a man shall contract to be Safely dishonest.
    Action on the case, tried at the Herkimer circuit in September, 1839, before Willard, C. Judge. The declaration charged the defendants with negligence in towing the plaintiff’s boat on the Hudson river between New-York and Albany, by reason of which the boat was run on the rocks and sunk, and the goods on board the boat damaged and lost. In 1837, and for several years before, the defendants were engaged in the business of towing canal and lake boats on the river between New-York and Albany, by means of several steamboats of which they were the proprietors. The boats towed wmre usually lashed to the sides of the steamboat having them in tow, and in such positions as the captain of the steamboats assigned to them respectively. The master and hands of the boats towed remained on their boats, and -were subject to the orders of the captain of the steamboat. It was their duty to have a man on deck to be ready to answer any order from the steamboat for the use of their helm, which was called in aid of the steamboat helm in difficult stituations. On the occasion in question, in October 1837, the defendants’ steamboat—the New London, A. Hitchcock, master—took in tow at New-York, one tow boat and six canal boats. The tow boat and one canal boat were lashed abreast on the east side of the steamboat; and on the west side of the steamboat three canal boats were lashed abreast—the plaintiffs’boat the Astorogan, being the outer one. In the rear of the plaintiff’s boat and the one next it, were two other boats in tow. In proceeding up the river, after passing Four Mile Point below Coxsackie, the plaintiffs’ boat struck on rocks under water near the west shore of the river, and sunk within a few minutes afterwards, by which the plaintiffs sustained damages to nearly $4,500, for the recovery of which this action was brought. These rocks are nearly three-fourths of a mile above Four Mile Point, and are well known to persons navigating the river. The channel opposite the rocks is about four hundred feet wide to a shore or mud island in the river. The steamboat with the boats in tow occupied a space of one hundred and twelve feet. A short distance below the rocks a sloop was at anchor near the centre, but nearest to the east side of the channel. The steamboat passed on the west side of the sloop, and for that purpose ran in towards the west shore, and after passing the sloop, failed to change the course to the east far enough to avoid the rocks. There was a conflict of evidence on the question, whether there was negligence on the part of the captain of the steamboat. Questions were also made, whether the injury was occasioned, either in whole or in part, by the neglect of the master and hands on the boats towed, in not having men at the helms, and whether there was negligence in this particular on the part of the persons in charge of the plaintiffs’ boat. When the master of the Astorogan applied to the defendants’ agent in New-York, he received a permit, stating the terms on which the boat was to be towed, which was in the following words : C{ New-York, Oct. 14th, 1837. Captain Hitchcock of steamboat New London—take in tow for Albany, canal boat Astorogan-master, at the risk of the master and owners thereof, and collect $30.” Eli Casler was the master of the Astorogan, and had endorsed his name on the back of the permit. Captain Hitchcock of the New London testified that his orders were, not to tow boats if the masters of the boats did not sign the permit to have the boats towed at their own risk. The defendants insisted, among other things, that they were not common carriers; that having furnished a good boat, with a skilful and careful commander and crew, they were not answerable for any accident, whether arising from the negligence of the crew or otherwise ; and that, if liable at all, they were only liable for gross negligence. The judge charged the jury, among other things, that the defendants were not liable as common carriers; but that they were liable to the plaintiffs, notwithstanding the permit, if the jury believed there had been a want of ordinary care and diligence in themselves or their servants. Again—that the defendants were bound to use such care and diligence as skilful and careful hands with a good boat would take to prevent any injury ; and if there was an omission in that respect, by which the injury and loss were occasioned, the defendants were liable. The defendants excepted to the charge. The jury found a verdiet' for the plaintiffs for $5,438,97 ; and the defendants now moved for a new trial on a case and bill of exceptions.
    
      S. Stevens, for the defendants.
    The circuit judge erred in charging the jury. He should have charged, that the defendants were not liable, under the circumstances, even for a want of ordinary care. The contract between the parties, as evidenced by the permit, was special, and exempted the defendants from all liability for losses not occasioned by fraud or gross neglect on their part. The circuit judge disregarded this feature of the case, and treated the contract as of no force. He has virtually decided that the defendants could not stipulate for immunity against want of ordinary care ; and whether this be so, presents the only point which ought to be discussed on the present motion. Were the defendants to be regarded as common carriers in respect to their undertaking with the plaintiffs, the cases of Hollister v. Nowlen, (19 Wend. 246,) and Cole v. Goodwin, (id. 281,) might be relied on as furnishing some powerful arguments against them. But they did not stand in this relation. (Caton v. Rumney, 13 Wend. 387.) Unlike common carriers, they were at liberty to act or refuse to act. Their condition, independent of any special contract, would be that of ordinary bailees for hire ; and the latter may always stipulate for restricted liability to the extent claimed by these defendants. (Story on Bailm. 7,20 to 24.)
    
      D. Burwell & M. T. Reynolds, for the plaintiffs.
    The case of Catón v. Rumney, cited by the opposite counsel, has by no means settled that the present defendants are not to be treated as common carriers. At the time of the undertaking in question, they were and had been for years engaged in the business of towing boats between Albany and New-York for all who might require their services. They held themselves out to the public as constantly ready to act in this business. Their occupation was essentially public in its character ; as much so, at all events, as that of common carriers. We deny that they could lawfully refuse to act at their option. The principle of the law which compels a carrier to receive goods, an innkeeper to entertain guests, a stage owner to send forward travellers, and even a farrier to shoe a horse, applies to the defendants with full and peculiar force. (Jackson v. Rogers, 2 Show. 327 ; Batson v. Donovan, 4 Barn, & Aid. 32 ; Rex v. Kilderby, 1 Saund. 312, c. note (2) ; Bull. N. P. 70 ; Story on Bailm. 328, § 508 ; Hollister v. Nowlen, 19 Wend. 239,247 ; Orange Co. Bank v. Brown, 9 Wend. 97 ; 3 id. 161, S. C. ; Jeremy’s Law of Carriers, 59 ; Massiter v. Cooper, 4 Esp. Pep. 260 ; White’s case, Dyer, 158,b. (32) ; Lane v. Cotton, 12 Mod. 485 ; 1 Ld. Raym. 654, S. C. ; Anonymous, 12 Mod. 3.) It has been laid down that if property be delivered “ to a person in a public employment, for a purpose in respect to which he is to have a reward, he is answerable for any loss or damage which is not occasioned by the act of God or the king’s enemies;” and this, it is added, is the case of common carriers, ¿re. (Per Holt C. J. in Coggs v. Bernard, 2 Ld. Raym. 917, 918.) Now what is there to prevent the operation of this rule in respect to the defendants'? The canal boat with its lading was property susceptible of transportation, and was delivered for that purpose to the defendants ; they being at the time engaged in a public employment, and to have a reward for the services which they undertook to render. We submit, that they cannot be regarded otherwise than as common carriers. (Story on Bailm. 297, 317, 338, 9 ; Kemp v. Coughtry, 11 John. Rep. 107 ; Allen v. Sewall, 2 Wend, 327 ; Sproul v. Hemmingway, 14 Pick. 1 ; Gilb. Law of Ev. p, 423 ; Gisbourn v. Hurst, 1 Salk. 249 ; Jeremy’s Law of Car. 4, 31 ; Gordon v. Hutchinson, 4 Law Reporter, 144 ; Bull. N. P. 70 ; 2 Kent’s Com. 597, 609 ; Dwight v. Brewster, 1 Pick. R.50 ; Orange Co. Bank v. Brown, 3 Wend. 161 ; Richards v. Gilbert, 5 Day’s Rep. 415 ; 1 Leigh’s N. P. 507 ; Smith’s Merc. Law, 168.) It is not an answer to this view to say, that no case can be found,where persons situated precisely like the defendants have been adjudged common carriers or liable as such. No case can be found to the contrary. The business of towing boats by the use of steam, though now in operation upon most of the navigable rivers of the U. States, has sprung up within a few years. The commercial community have a deep and increasing interest that it shall not fall into the hands of unskilful or negligent men ; for scarcely any other department of business can be mentioned which involves or is destined to involve so vast a pecuniary trust. Those who engage in it should know that they will be held to the most rigid responsibility. (Per Walworth, chancellor, in Sewall v. Allen, 6 Wend. 335, 352 to 354.) “General convenience,” therefore, or, in other words, public policy, which is said to be a legitimate principle of legal judgment in new cases, (Ram. on Leg. Judg. 53,) requires that the rule respecting common carriers should be applied here. Even conceding that the language in which the rule has ordinarily been expressed will not embrace the present case ; that is immaterial so long as all its reasons are applicable. The common law is not inflexible in this respect; but accommodates itself to the' changing circumstances of society • (Per Shaw, C. J. in Sproul v. Hemmingway, 14 Pick. 5 ;) and where a new interest arises, either in the ordinary course of improvement, or through the direct action of the legislature, it is to be “ governed by the same law that like interests have been governed by before.” (Per Holt, C. J. in Lane v. Cotton, 12 Mod. 485, 6 ; S. C. 1 Ld. Raym. 646, 654.)
    It may be urged, that the plaintiffs’ servants accompanied the boat in question, and that for this reason the defendants were exempt from the responsibility of carriers. Not so. The plaintiffs’ servants were, for the time being, the servants of the defendants. The evidence shows that they had no control over the movements of the plaintiffs’ boat, but were entirely subject to the orders of the defendants’ captain. (Robinson v. Dunmore, 2 Bos. & Pul. 417,419 ; Hollister v. Nowlen, 19 Wend. 234, 236, 7.)
    If we are right in supposing that the defendants must be regarded either as common carriers eo nomine, or as persons standing in the like relation and subject to the same law, then it is clear, no special contract for restricted liability on their part could operate. Such a contract would be void, as contrary to public policy, and the general interests of commerce. This is shown by the cases incidentally noticed by the opposing counsel. (Hollister v. Nowlen, 19 Wend. 246 ; Cole v. Goodwin, id. 281.)
    / But conceding that the defendants are not to be treated as common carriers, still the verdict should be allowed to stand. The boat in question was received by them to be transported to Albany, and they were bound to excuse their omission to perform this undertaking by showing that the loss happened by mere accident—without any negligence on their part. (Story on Bailm. 280, 1, 347 ; 1 Bell’s Comm. 459 ; Stokes v. Saltonstall, 13 Peters’ R. 181 ; Hand v. Baynes, 4 Whart. Rep. 204 ; Parsons v. Hardy, 14 Wend. 215 ; Camden & Amboy R. R. Co. v. Burke, 13 id. 611, 627, 8 ; Moneypenny v. Hartland, 1 Carr. & Payne, 352 ; S. C. 2 id. 378.) The permit cannot excuse them. Even viewing it in the light of a special contract, what does it import ? We submit, that its intention was merely to guard the defendants on the point of liability for casualties, unaccompanied by negligence. If there be ambiguity in respect to its meaning, the construction should be most strongly against them. A stipulation for negligence of any kind is not to be presumed or spelled out from doubtful phraseology. The party intending a thing so unreasonable, must use clear and precise language. (Story on Bailm. 25, 365, 358 ; 1 Bell’s Comm. 473 to 475 ; Jeremy’s Law of Carr. 37, 8; Dwight v. Brewster, 1 Pick. 50; Bodenham v. Bennet, 4 Price, 31; Smith v. Horne, 2 Moore, 18 ; Camden & Amboy R. R. Co. v. Burke, 13 Wend. 628 ; Garnett v. Willan, 5 Barn. & Ald. 53 ; Sleat v. Fagg, id. 342 ; Riley v. Horne, 2 Moore & Payne, 341 ; Langley v. Brown, 1 Moore if Payne, 583 ; Cole v. Goodwin, 19 Wend. 271,281.) The phrase 11 at the risk” &c., applies only to accidents happening without fault; for surely none other can be deemed to have been contemplated when the permit was given. (Phil, on Ins. 543 ; Parr v. Anderson, 6 East, 203 ; Bell v. Carstairs, 14 id. 374, 382 ; Vase v. Union Ins. Co., 2 John. Cas. 187 ; Grim v. Phoenix Ins. Co., 13 John. R. 451 ; American Ins. Co. v. Ogden, 20 Wend. 287.) If, however, the permit is to be deemed a contract that the defendants might be negligent with impunity ; then, we insist, it is totally void. No class of individuals should be suffered to engage in a business like that of the defendants on such terms. To allow it, would be to put at hazard the interests of trade and commerce ; and if for this reason a carrier should not be permitted to repudiate his common law liability as an insurer, neither should these defendants their’s for want of due care. (Hollister v. Nowlen, 19 Wend. 246, 7 ; Cole v. Goodwin, id. 280, 1.)
    
      Stevens, in reply. The question whether the defendants are common carriers, is not properly here for discussion. This motion is to be determined upon the assumption that the ruling of the circuit judge on that point was correct. For had he been against us, non constat that the defendants might not have adduced additional evidence at the trial which would forbid their being called common carriers in any sense, however loose and latitudinary.
    But I have no desire to avoid that question, even upon the evidence now before the court. And my first answer to what has been urged is, that the defendants never had possession of the goods on board the plaintiffs’ boat, as common carriers; nor was it a part of their undertaking that they should have. The master and hands of the boat remained upon her, having the immediate care of her cargo ; and neither the captain or crew of the defendants’ vessel had the right to go on board for any purpose. This should be conclusive against the pretence now urged. (East India Co. v. Pullen, 2 Strange, 690 ; Hyde v. The Trent & Mersey Nav. Co., 1 T. R. 394.) Suppose the goods had been lost by theft or robbery : would the defendants be liable for them in that case 1 The injustice, not to say absurdity, of extending the doctrine thus far, is perceived at once; and yet, regarding them as common carriers, they could not escape liabiltiy. (Story on Bail. 338, § 528.) The relation in which these parties stood was simply this : The plaintiffs being common carriers, employed the defendants to assist them. If, therefore, -the latter are to be deemed common carriers, it is difficult to see why all the other assistants whom the plaintiffs found it necessary or convenient to employ, would not be common carriers also.
    Again : to bring a person within the definition of a common carrier, it is essential that he be in a situation where he is obliged to serve all persons generally, on being tendered a suitable reward ; and he must exercise the calling as a public employment. (Story on Bail. 322, 328.) The defendants occupied no such relation. It is true, they had been in the habit of towing boats ; and, it may be, had publicly invited patronage in that business. But does this constitute their employment a public one, in the legal sense, and render them, liable should they refuse to serve 1 Suppose a master builder advertises that he will serve all who are willing to employ him, and continues to act in that capacity for years: does he thereby constitute himself a public servant, and alienate his right to refuse to contract in particular instances, as interest or option or caprice may dictate 1 The same may be put of a warehouseman or a wharfinger. The condition of the defendants has been likened to that of a smith, who, it is said, is obliged to shoe the horse of a traveller on tender of compensation •, and for this, counsel have referred to Lane v. Cotton, (12 Mod. 484.) The case contains nothing beyond a mere dictum of Holt, C, J., who was overruled there in his main position by the other judges. Holt cites Keilway at p. 50, and the latter fails to maintain the doctrine. No instance can be found in the books where such a doctrine has been acted on ■ and I deny that it is to be regarded as law.
    If I am right thus far, neither the reason nor the language of the law relating to common carriers, applies to the case of the defendants. That law, moreover, is not one which ouglff to be extended. It has been repeatedly characterized by learned judges as a law of great harshness and rigor; and though, within the limits which former adjudications have assigned to it, its necessity and policy may be admitted, I deny that it is to be carried further and applied to new cases. (Boyce v. Anderson, 2 Peters’ Rep. 150, 155 ; Clark ads. McDonald, 4 M' Cordi's Rep. 223 ; Colt v. M’Mechen, 6 John. Rep. 164 ; Roberts v. Turner, 12 id. 232.) To apply it to those engaged in towing boats upon our rivers, would not be to secure any interest which the public have in the prosecution of that business ; but to destroy such interest, by putting an end to the business altogether, or confining it to reckless hands. Prudent men would not embark in it on such terms.
    It is said, however, that conceding the law of common carriers not to apply to the defendants, still the verdict should stand, inasmuch as the permit does not import a stipulation against liability for want of ordinary care. In order to interpret the permit, we must give the words of it their fair and natural signification ; and assume, moreover, that both parties understood the law. There is nothing ambiguous in the language, and no room for cavil or doubt. It admits of but one construction, which is, that the plaintiffs’ boat shall be towed at their entire risk. No exception is expressed ; and none can be inserted by construction, without imposing upon the parties a contract which they never designed to make. Assuming, moreover,that the parties knew the law and contracted in reference to it, then they knew the defendants were not common carriers, nor responsible as such : and possessing this knowledge, what could they have meant by the term u rislA in the permit 1 Clearly, nothing less than risk arising from an omission of ordinary care; for otherwise the term wrould be senseless, and without a subject matter upon which it could operate.
    The only remaining enquiry is, as to the right of the defendants to stipulate against their common law liability for ordinary neglect. On this subject, nothing need be added. If the defendants were not- common carriers, they stood upon the same footing as other private persons, and were at liberty to assume or repudiate the risk in question at their option. No judge or jurist has ever doubted on this point; indeed, it is too plain to admit of either doubt or elucidation.
   By the Court, Bronson, J.

The defendants carry on the business of towing boats laden with merchandize and produce, and are undoubtedly willing to engage for all persons who may desire their services. But I think they are not common carriers. They do not receive the property into their custody, nor do they exercise any control over it other than such as results from the towing of the boats in which it is laden. They neither employ the master and hands of the boats towed, nor do they exercise any authority over them beyond that of occasionally requiring their aid in governing the flotilla. The goods or other property remain in the care and charge of the master and hands of the boat towed. ■ In case of loss by fire or robbery, without any actual default on the part of the defendants, it can hardly be pretended that they would be answerable ; and yet carriers must answer for such loss. If the case of Caton v. Rumney, (13 Wend. 387,) does not go the whole length of deciding this question, we entertain no doubt that the circuit judge was right in ruling that the defendants are not common carriers.

If the defendants are not common carriers, then, aside from any express contract, they would be holden to the same rule of responsibility as ordinary bailees for hire. They would be answerable for a loss occasioned by the want of ordinary care and skill. This is the rule which the judge gave on the trial. But he laid the permit or special acceptance entirely out of view, and put the cause to the jury in the same way as though there had been no express agreement between the parties. This presents the question, whether an ordinary bailee for hire may not stipulate for a different degree of liability from that to which he-would be subject in the absence of an express contract. I think he may. He can ifiidoubtedly bind himself as an insurer for the safe delivery of the goods at all events ; and; I see no good reason why, on the other hand, he should not be allowed to. contract for any degree of exemption from liability which stops short of protection in case of fraud. Other bailees are not bound, like common carriers and innkeepers, to accept business whenever it is- offered; nor are they obliged to bestow their labor or care at what may be deemed a reasonable price. They are as fully at liberty to refuse employment as- is a day laborer, and may, like him, settle the terms on which their services shall be rendered. In the absence of an express contract, the law will imply an undertaking on the part of the bailee for the use of ordinary skill and care, and will secure to him a reasonable compensation for his services. But those matters may be otherwise settled by compact between the parties.

It is very questionable whether innkeepers and common carriers can contract for a restricted liability ; but there seems to be no such doubt in relation to other bailees. (Hollister v. Nowlen, 19 Wend. 246 ; Cole v. Goodmn, id. 272—282 ; Story on Bail. 7, 20—24, 2d ed.) If the obligation which the law would- imply in the absence of an express contract, can be- in any degree restricted by the agreement of the parties, I see no reason why they may not go the length of contracting for the entire exemption of the bailee, and thus leave the whole risk-on the owner of the property. That they may do so, has never, I think, been seriously questioned. But this impunity cannot be extended to a case where there is fraud on the part of the bailee; for the law will not' tolerate such an indecency and immorality, as that a man shall contract to be safely dishonest. (Story on Bail. 21.)

In this case, the defendants agreed to tow the boat “-at the risk of the master and' owners thereof.” These terms are broad enough to embrace every risk arising from a want of ordinary care and skill, and I think we are not at liberty to construe them in a more limited sense. The plaintiffs were content with those terms before the loss happened; and they must abide by them still, unless there has been a want of good faith on the part of the defendants or their servants.

New trial granted. 
      
      
         When this opinion was delivered, the case of Gould and others v. Hill and others, (2 Hill, 623,) was not yet decided. The latter, it will-be seeti, determines that a carrier cannot thus restrict his liability.'
     
      
       This case was twice argued by the same counsel. The above is the opinion delivered after the first argument. After the second argument, the case was disposed of as follows:
      
        By the Court, Bronson, J. On a re-consideration of this case, we see no sufficient reason for changing the opinion which has already been expressed.
      New trial granted.
     