Emiliusen
v.
Pennsylvania Railroad Co.

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentMay 1, 1898
30 App. Div. 203 (N.Y. App. Div. 1898)
30 App. Div. 20351 N.Y.S. 606

May Term, 1898.

Le Roy S. Gove [ James J. Macklin with him on the brief], for the appellant.

Henry Galbraith Ward, for the respondent.


The plaintiff was the owner of the canal boat J.N. Thompson, and on August 23, 1893, employed the defendant to tow it from New York to South Amboy, N.J., where it was consigned to the Wyoming slip, for the purpose of loading a cargo of coal to be transported to New York. The defendant's tugboat Brinton took the Thompson, with other boats, in tow, and on arriving at South Amboy left them at what is known as the old freight dock, which is not sheltered from the open bay. The plaintiff made his own boat fast outside of four other boats which were moored to the dock. This was at noon of the twenty-third. It does not appear that there were at this time any indications of a storm. Indeed, the certificate of the weather bureau, produced by the plaintiff, only contains statements of the velocity of the wind from six o'clock in the evening of the twenty-third to four or six o'clock of the morning of the twenty-fourth. It may be assumed that if there was anything in the reports of the weather bureau to show a threatened storm at noon of the twenty-third, when the boat tied up, the plaintiff would have had the blanks in the certificate, as to the condition of the weather from noon to six o'clock, filled. There are two of such certificates, one of which shows the velocity of the wind at Sandy Hook, at six o'clock, to have been eleven miles, and the other shows the velocity at New York city, at the same hour, to have been seventeen miles. From that hour the wind increased and attained a velocity at Sandy Hook of seventy miles an hour, which in marine parlance constitutes a hurricane. The plaintiff testifies that the storm came up on the evening of the twenty-third; that he had no anxiety about his boat until midnight, and that between that hour and early morning the boat was sunk by the storm. At the close of the plaintiff's case the court directed a dismissal of the complaint, and from the judgment entered thereon the plaintiff appeals.

The main contention of the plaintiff is that by the contract between him and the defendant the tug was bound to take his boat to Wyoming slip instead of leaving it at the old freight dock; but his own testimony shows that he has been towed by the defendant during the last ten years, and that the custom has always been to leave empty boats at the old freight dock until notified by shippers of the coal of their readiness to load, when the boats are taken into Wyoming slip. The contract was made in the light of this custom, and the defendant was not guilty of negligence in following out the custom. It was not negligent for the defendant to leave the Thompson at the old freight dock until the load was ready for her, at a time when there was no indication of any approaching storm, nor was the defendant bound to remove the boat until notice so to do.

A tugboat is not a common carrier. This is elementary in maritime law, which imposes upon the tugboat no greater duty than that it shall carry out its undertaking with reasonable caution and skill such as prudent navigators usually employ in similar services. ( The Steamer Webb, 14 Wall. 406.)

The learned counsel for the plaintiff cites a number of additional authorities, in respect of which it is sufficient to say that they are cases where the tugboat either left its tow in an exposed berth at a time when danger was imminent or failed to discharge its responsibility before the termination of its contract of towage. In the present case the tug had temporarily ended its service, and had left the boat at its mooring at a time when no danger could be reasonably apprehended.

I think the complaint was properly dismissed and that the judgment should be affirmed.

All concurred, except HATCH, J., absent.

Judgment affirmed, with costs.