CtWOJ(lases:),;:', :"'i ;
'of the' circuit court of the ';§lates 'f91' thesl;>uUiern district of New York, affirming pro forma 9f the cduitt' 'for said dishict. The libelants, 'De Witt Bonker ",m'iGeorge the owner of one of two scowaJost}nthe, caaes were beard together in the the libellJ,(40 Fed: Rep. 839,) and redistrict court, whhib .apondent Ontlliaappeal the court delivered its opinion in suit only,' d.isposition to be made 01 the other. 'Affirmed. , ",,¥oore $turges, for appella,nti Wing, SlWudy k PUtMm; (HarringtOrl Putna,m, of couosel,) for appelI ' " , . " , ' . "
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.. 1'41" decree for .the libelant fot tbe \'IlIue, 0.(.., scow. Scow of Bouker at anagleedprlceper day.. tp be ,transpol'tiQg abuilding from ion.locatilln ,to ",notber. use of a tug, and Smith engaged and,.crew., .While the tug ,was"towiog,tM'S(mV, be got off, and the scow,talLeij ,W', &r p}"eeof safety, a storm arose,' and the scow was t() "",' , ,, We, are satisfied is no iJ:l any .of fault .' It start upon the trip. The scow was to be taken through a channel from Rockaway iIi· let, and then()e a sl,1ort sea., It. was JptQceed wbell there was, Q,igh it 'was Jligh · water .. ; 4. .and . ble thllt if the .be too ro*gh, trip were postponec;l perhaps for several days, to permit the scow to be towed safely. Any delay consequent upon the postponement would have been at the expense of the charterer. Jaycox was interested in having such a delay, as he would get pay for his tug in the mean time; and his protests about the
danger of starting at that time were prompted, we think, by this motive. There is as little merit in the other allegations which set forth that the tug was of insufficient capacity to handle the scow, or that the scow should not have been taken through the channel. The accident was caused by the incompetency of Hults, w,4o was familiar with the channel, and was on board the tug for the trip, not to assist in her management, 9ll,t, to give Jaycox the benefitof his knowledge of the channel. He iti:'steering a tug and scow sufficilmHy to be intrusted wit,hthatduty iQ" the difficult passage through the. channel. Jaycox should have stood by the wheeL· Instead- of dhing 80, he deserted it, and asked Hults to take the wheel. Hults did the best he could, but could not control the tug, as she was influenced by the scow, and ran her aground. The case Seem$ to be one iii which the libelant in the .present action and the libelant in the other action, for the loss of scow No.5, have affiliated with Jaycox to fix Smith with the damages occasioned by Jaycox's negligence. the failure to establish the specific allegations of the' libel, its generalll.verments ficient to authorize a reco\1ery upon the facts as they appear, and the only question is whether Smith is liable for the I)egligent acts 6fJIlycox or Hults. It is elementary law that the hirer oj a chattel impliedly undertakes to use it well, to use it for no other purpose than that for which it is hired, to take proper care 01 if, and to restore it at the time appointed. In all these things, he is bound to exercise the diligence of a prudent manjand for any default, whether his- own personal fault or negligence or that of his subagents or servants, is respousible to the owner. There il'l a clitss of cases in which one who makes a contract with another to perform a specified undertaking, not reserving to himself any control over the means or instrumentalities to be employed, is not liable for the negligent act of the other in the course of performing the contract, or olthe servant of the latter. This Case is not of that class. No one can escape from the burden of an obligation which rests primarily upon him by engaging for its performance with the contractor. Whart.Ag. § 485. Smith could not absolve himself from his duty as a bailee by employing Jaycox to perform any part of it. Although Jaycox was towing the. scow with his tug by a contract with Smith, he was nevertheless performing Smith's implied contract, as were also all those who were employed for the time being by Jaycox. If, by reason of Bome negligent act of Jaycox or Hults in the management of the tug, a third person had been injured, who was a to the implied contract between Smith and the libelant for the proper care of the scow, Smith would not have been responsible, if it appeared that he had no control over the service which he had contracted with Jaycox to perform.. v. CO'TUJtrudinn Co., 46 Fed. Rep. 506. The decree of the court below is affirmed, with interest and the costs ohhis conrt, and the cause is remitted with instructions to proceed accordingly.
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NlllW YORK ANp
01 Awea18, BeooncJ mrauo£t.
The .steamer City of New York, going river"ran into a fog before rojlndl;ng :tqe Battery. A 1iOwsome 1,000 feet lOng, 1D charge of two tugs, was prooeedingfrom Alnpoy to jersey CitY,'and was at the time of 'collision at the interseotion oUhe North andEQ.st rivers, below the Battery. 'j;p.e togs were sounding fog SigIlQIs.. No llignals,wer\lgiven from the tow, exoept that a woman in a rear boat of t)1e tow blew a 'horn when she disCovered the The latter, when she tirst;saw the tow, was::i:lloving at the ,ate of; six miles an hour; and, though shc at Ol1oe ,reversed, she stl,'uck.and sank one of. the canal-boats. Held, that the stealJ1er's speed was not'moderate, as required by rule, and that she should have ')l9al'd and aoted upon the signals of the tow, and was in faJllt for not doIng so. ,B.:ld,IlZ8Q,that, as the tugs were performil1gall their statutory duties, they were Dot guUtY of negligence because no signals were given from the tow. 44 Fed. Rep. 693, rever$ed. '
OF Tow TO SOUND FOG SIGNALS.
Appeal from'the Circuit C<1Urt of the .United States for the Southern District of New York., . " , In Admiralty. Suit by Moore to recover for the loss .of a canal-boat incollision·with the City of New York while the canal-boat was in tow oLthe tugs Young America and John E. Berwind. The districtcourt .held,all the steamers in fault, (44 Fed. 693,) and their owners each appealed. Reyersed. . . Wing, ShC)'/,ldy &:Putnam; (Charles O. Burlingham, Qf counsel,) for the City ofNew,Yotk. ',., . RobinsO'n, Brigh,t; ,Biddle&: Ward, (Hen.ry Galbraith, Ward, of counsel,) for the _, Mc(J(J8'f1lJy &:Berier, (Edwin D. McOarfh,y, of for Moore and Daily. ', Before WALJ;ACE and LACOMBE, Circllit Judges. Judge. The libel in this cause "as filed by the W owner of the canal-boat Western Star against the steam-boat and the two steam-tugs to recover the damages occasioned by a collision between his canal-boat, ,while she was in tow of the, two tugs, with the steam-boat. The districtcClurt adjudged the steam-boatand the two tugs jointly in fault for the collision, and condemned them for the damages sustained by the libelant. The- owner of the steam-boat and the owner of the two tugs both appealed ,from that decree. The question now to be determined is whether the'stea.m-boat was solely in fault, or the tugs were solely in fault, or whether both wete in fault. The collisiop, took place between Governor's island and the Battery, at the intersection of the East river with the North river, a few minutes after 7 o'clock in the morning of