Page:Federal Reporter, 1st Series, Volume 9.djvu/631

 636 FEDERAL REPORTER. �That there is a marked difference between the obligations, duties, and responsibilities of a common carrier and a private carrier needs no citation of authority to establish ; nor is it neceesary in the pres- ent case to enter into any discussion in regard to wherein the differ- ence consists. But just how far each may, by special contraot, pro- tect itself against the obligations, duties, and responsibilities is not quite 80 clear. �In Railroad Co. y. Lockwood, 17 Wall. 357, Justice Bradley, after a close and exhaustive examination of the authorities, and an able dis- cussion of the principles governing common carriers, announces, as the decision of the supreme court of the United States, that they can- not exempt themselves by contract from responsibility for the negli- gence of themselves or their servants. In the Steamer Syracuse, 12 Wall. 167, it was a contract of towage, as the present, and it was claimed, as in the present case, that by special agreement between the canal-boat and the steam-boat, the former was being towed at her own risk. Justice Davis, in delivering the opinion of the court, says : �"It is unnecessary to consider the evidence relating to the alleged contract of towage, because if it be true, as the appellant says, that by special agree- ment the canal-boat was being toweil at her own risk, nevertheless, the steamer is liable if, through the negligence of those in charge of her, the canal-boat has sutiered loss. Although the policy of the law has not imposed upon the towing-boat the obligation resting upon a common carrier, it does lequire upon the part of the persons engaged in her management the exercise of reasonable care, caution, and maritime skill ; and if these are neglected, and disaster occurs, the towing-boat must be visited with the consequences." �It is eontended by the learned counsel for the respondent that the doctrine of the latter case is modified by the decision in the former. W^hether this be so or not, the view which I take of the evidence in regard to the contract alleged renders it unnecessary to determine. The contract is afiirmed by the respondent and denied by the libel- lant, and the burdeu of showing the existence of the contract and its terms rests upon the respondent. The respondent says that the words nsed were that he "would take no responsibility," and the captain sustains the statement of the respondent; but he is very clear that the respondent did not understand that this contract relieved him of responsibility for carelessness and negligence, for, to the question, "Your idea is that you were not responsible for the carelessness of your men?" he says, "I want tosaythat I am subject to whatever law governs these things. I did not make a contract to cover any care- ��� �