Boston Metals Company v. The Winding Gulf/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

Release-from-liability clauses generally, and specifically with regard to towage contracts, are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties. Even when such a clause undeniably alters the normal relationship between tug and tow as to some aspects of liability for negligence, it is not to be construed to impose every consequence of the tug's negligence upon the tow unless the clause decisively requires this result. See The Devonshire and St. Winifred, (1913) P. 13; The Richmond, 19 T.L.R. 29 (P.D.).

The issue before us in this case is not the bare question whether the tow has contracted away its right to recover damages caused by the negligence of the tug. It is whether in addition the tow has undertaken to become directly liable to all third parties injured as a consequence of the negligence of the tug.

These are the relevant clauses governing the towage here:

'2. Tug services will be supplied upon the condition that all     towing *  *  * of a vessel or craft of any character by a tug      or tugs owned or employed by the Tug Company is done at the      sole risk of such vessel or craft and of the owners,      charterers or operators thereof, and that the Master and crew      of such tug or tugs used in the said services become the      servants of and identified with such vessel or craft and      their owners, and that the Tug Company only undertakes to      provide motive power.

'3. The Tug Company will not be responsible for the acts or     defaults of the Master, or crew of such tug or tugs, or any      of their servants or agents or else whosoever, nor for any      damages, injuries, losses or delays from whatsoever cause      arising that may occur either to such vessel or craft, or      property or persons on board thereof, or to any other ship or      vessel or property of any kind whether fixed or movable and the Company shall be held harmless and indemnified by the      Hirer against all such damages, injuries, losses and delays,      and against all claims in respect thereof.

'4. Such exemption from liability shall apply regardless of     whether such vessel or craft assists in the services with its      own steam or power or in any other way, and irrespective of      whether any employee of the Tug Company or the Master, or any      of the crew of such tug or tugs is at the time of said      services on board of such vessel or craft, or in command      thereof.

'5. The foregoing conditions shall apply to any damages,     injuries or loss from whatsoever cause arising that may occur      to the vessel or craft requiring the tug or tugs or to any      other vessel or craft, or to any person or property on board      thereof, or to any other property whether fixed or movable,      while such tug or tugs is or are in attendance upon *  *  * the      vessel or craft *  *  * provided however that the said      conditions shall not apply to loss or damage to the tug or      tugs or to property on board the tug or tugs or to damages      for personal injuries to or loss of life of members of the      crews of the tug or tugs or persons on board thereof, unless      such loss or damage or such damages for personal injuries or      loss of life shall have been caused or contributed to by the      fault or negligence of the vessel or craft requiring the tug      or tugs.'

Is the significance of these clauses to permit a third party, injured by collision with the tow due to the negligence of the crew of the tug, to proceed directly against the owner of the tow by virtue of this clause?

The District Court refused to allow the third party to invoke the indemnity clause, but apparently held that the contract made the faults of the tug attributable to the tow, imposing a vicarious liability upon its owner. The Court of Appeals reasoned that since the tow had agreed to indemnify the tug against claims of third parties, the third party could proceed directly against the tow because 'The libel was filed by the owner of the tow who had agreed to take the risk of the enterprise and pay any damages that might be incurred, and as was said by Judge Learned Hand in The Kookaburra, 2 Cir., 69 F.2d 71, 73, 'the admiralty, whose procedure is especially plastic, can skip the by-ways and head direct for the goal." 209 F.2d 410, 414.

In the absence of the contractual provisions quoted, the owner of the tow would not be liable to the third party. Sturgis v. Boyer, 24 How. 110, 16 L.Ed. 591; The Eugene F. Moran, 212 U.S. 466, 473, 29 S.Ct. 339, 53 L.Ed. 600. On the other hand, the tow did agree to indemnify the tug against liability in the circumstances here involved. But a promise to indemnify is a promise running to the indemnitee, here the tug, and is not ordinarily construed as a contract for the benefit of third parties. Nor does an agreement to hold another harmless against claims of third parties, if it conveys anything more than the term 'indemnify,' suggest that the contract was intended for the benefit of third parties.

It is true that the clause states that the members of the crew are to 'become the servants of and identified with such vessel or craft' and that the tug will 'not be responsible' for their acts. If in fact this were the relationship, the tow would be liable directly to third parties. This was not the fact, however, and any liability of the tow to the Winding Gulf can only be based upon the contractual language. But the history of towage and pilotage release-from-negligence clauses suggests that this terminology is merely an attempt to phrase a disclaimer of liability applicable to a towage service in the terms of the pilotage clause successfully invoked in Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. Like all attempts to describe desired legal consequences through use of inapposite concepts, the momentum of the symbolic concept may induce consequences beyond those which the true nature of the problem justifies. Placed in its commercial and judicial context, the phraseology does not sufficiently indicate an agreement to undertake direct liability to third parties. There are good reasons why this should not be undertaken, among them the fact that in a suit to which the tug is not a party it may be difficult to obtain the full assistance of the tug in establishing nonliability or avoiding an unfairly larger recovery than might have been or subsequently is had against the tug.

The only remaining question then is whether the fact that the tow owner instituted this libel against the third party should permit the third party to assert as a defense, or affirmatively as a cross-libel in this case, the claim against the tug. The quotation cited by the Court of Appeals from The Kookaburra is not in point for there all parties were before the court, and the question was one of contribution. In such a situation circuity of action may be avoided without the danger of injury to any of the parties. But it is no defense to an action for negligence that a claim over against an absent third party exists, and the situation is not different because the absent third party in turn would, if held liable, be entitled to indemnity from the libellant.