Wells and Tucker against The Steam Navigation Company, 8 N.Y. 375

Mason, J. The only point in the case, is whether the justice at the circuit should have ruled that the defendants were not liable for gross .negligence unless accompanied by fraud or a want of good faith in the performance of the service required by their contract. Under an ordinary contract to perform the service, they would be bound to bestow ordinary care and diligence, and would be liable to the owners of the property for any damage which should be occasioned by the want thereof.

The permit in this case contains the contract, and the question is, whether it by its terms discharges the defendants from all liability not amounting to fraud or want of good faith. I can not think the expression contained in it “ at the risk of the master and owner thereof,” was understood by the parties as a protection against all kinds of negligence.

It would be an extraordinary contract which should in express terms give such a latitude in performing a hired service of so important a character as the one under consideration; and to permit a contract to have so unreasonable an effect as it would imply, the intention of the parties should be clearly and unequivocally expressed, so as to leave no room for doubt or misconstruction. (Schieffelin v. Harvey, 6 John. 180; 7 Hill, 547.) In this contract, nothing is said about negligence.

The parties undoubtedly had reference to those perils of navigation which were not the* result of the contractor’s own negligence when they provided that the boat should be towed at the risk of the master and owners. It was undoubtedly well known to those engaged in this kind of navigation that the law governing the liabilities of towing companies was not definitely settled. In some of the states they were held liable as common carriers while in one of our courts, a contrary doctrine was held; but the law was regarded as unsettled.

And il' the rule in relation to common carriers was to prevail, there would be a large class of risks peculiar to carriers, not arising from negligence, to which the defendants might but for a special contract have become liable, and it is quite reasonable to suppose that the parties would make some special provision in relation to the risk each should assume.

And it is certainly much more reasonable to infer that when they declare, that the boat should be towed at the risk of the owners, they intended such risks as were incident to the navigation when proper care and skill were exercised, rather than risks to which it might be exposed by the negligence of the persons in charge of the steamboat.

It would require a man of a good deal of effrontery to ask another to insert in his contract for performing a service, a clause permitting him to be negligent in its performance, and relieving him from all liability for the injuries which his gross negligence might occasion; and the man who would insert such a clause in the contract would be a fit subject for a committee to take charge ' of his person and property.

As there were risks of the navigation to which the special clause in the permit may naturally be applied, and more consistently with honesty and fair dealing than if extended to the negligence of the defendants, it is undoubtedly the duty of the court so to apply it. Such a construction is consonant with the pro bable intention of the parties. I think the decision of the late court of errors in Alexander v. Greene, (7 Hill, 533,) is conclusive upon this question.

As I understand that case 4he court decided that under just such a contract as this, a towing company was liable for injuries resulting from gross negligence. The supreme court held that the permit furnished evidence, that the plaintiffs agreed to take all risks upon themselves, and - that the defendants in the action were not liable even for gross negligence.

The court of errors reversed the judgment, and I am unable to see how any one can read the opinions delivered without coming to the conclusion, that it was reversed on the ground that the circuit judge erred in not submitting the question of gross negligence to the jury, and in not holding the defendants liable for acts occasioned by gross negligence.

There was no intimation in that case that the defendants could be made liable only for fraud or a want of good faith I am therefore of the opinion that the contract did not excuse the defendants from liability for damages resulting from gross negligencé in the management of the steamboat, and that the circuit court was right in submitting the question to the jury.

Gardiner, J., (after stating the facts;) I think that the circuit court was right in overruling the request of the ' defendant to charge that the plaintiffs could not recover without showing fraud or want of good faith in the person having charge of the Sandusky. The charge, to say the least, was sufficiently favorable to the defendants. The defendants had agreed for hire to perform a stipulated service for the plaintiffs. The first element in a contract of this character is good faith in its execution; the second" such a degree of diligence at least as very careless men exercise in reference to their affairs.

It is said that the defendants had a right to contract against liability for the gross negligence of those in charge of the Sandusky. So they had a right to contract against liability for the fraud or bad faith of their agents upon the same principle. It was agreed that the language of the contract, was general, and expresses an intent to stipulate against risk from mere negligence, of every kind without' exception. But the argument from the generality of the expression, is just as applicable to the fraud of agents, as to their carelessness.

According to the doctrine of the defendant’s reference, it extends to every risk to which the law will permit a contract to be made. Although the law will not suffer a man to claim immunity by contract against his own fraud, I know of no reason why this may not be "done in reference to fraud, or felony committed by those in his employment. Yet the request made to the judge, above mentioned, assumes, and the wdiole argument has proceeded on the supposition, that fraud upon the part of those having the boat of the plaintiffs in charge, whether principals or servants. would subject the defendants to an action.

All agree, therefore, that the general terms of the contract are subject to some qualification: what this shall be, is the only question. I agree substantially with Senator Bockee, in the opinion given by him in the court of errors in Alexander v. Green, (7 Hill, 544.) That case was in all respects like the present, and should control it. In four of the opinions read on that occasion it was held, that gross negligence was dot a risk within the spirit of the contract. In the other, the defendants were held even to the more stringent liability of common carriers.

The court' by a formal vote refused to declare the defendants liable as common carriers, and the inference is unavoidable that the members Were nearly unanimpus in declaring that the de- . fendants were liable for gross negligence at least. Such .1 understand to have been the opinion of this court in awarding a new trial in the case now before us.

We held then if a party vested with a temporary control of another’s property, for a special purpose of this sort, would shield himself from a responsibility, on account of the gross neglect of himself or his servants, he must show his immunity on the face of his agreement; and that a stipulation so extraordinary, so contrary to general usage and the understanding of men of business, would not be implied from a general expression, to which effect might otherwise be given.

I have heard nothing on this argument to change that opinion, and I think, consequently, that the judgment of the supreme court should be affirmed. Euggles, Ch. J., did not hear the argument. All the other judges concurring, Judgment affirmed.