Mr. Justice DOUGLAS, concurring.
I join in the opinion of the Court. I do not think we know enough about the economics and organization of this business to change the established rule of The Steamer Syracuse, 12 Wall. 167, 171, 20 L.Ed. 382, and The Wash Gray, 277 U.S. 66, 73, 48 S.Ct. 459, 460, 72 L.Ed. 787, that a tug may not contract against her own negligence.
I agree with the Court that Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, was not a departure from that rule. In that case the vessel which was being assisted by the tugs was under her own power and was manned by her own crew. The negligence was that of a tug captain on board the vessel under tow. The Court enforced the contract, which made his negligence the negligence of the vessel, under the familiar rule that 'when one puts his employee at the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly for and is to be deemed the employee of the latter and not of the former.' Id., 287 U.S. 295, 53 S.Ct. 136.
In the Sun Oil case, the tug was not a common carrier or a contract carrier. It was merely assisting a vessel under her own power. Here we are dealing with dead tows, where the tug and the tug alone is in control, where the tows are without power and without crews.
In that situation, the tugboats are common carriers when they so hold themselves out, State of Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 48 S.Ct. 41, 72 L.Ed. 241; Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978, or contract carriers.
So far as we know, the tugboats in the present cases are as much common carriers as the tugboats in the Cornell Steamboat case and the Stimson Lumber Co. case.
Common carriers may not 'by any form of agreement secure exemption from liability for loss or damage caused by their own negligence.' Sun Oil Co. v. Dalzell Towing Co., supra, 287 U.S. 294, 53 S.Ct. 136. See New York Central Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. The reasons are as germane to a tugboat that is a contract carrier as they are to a tugboat that is a common carrier. They were well stated by Judge Coxe, dissenting in The Oceanica, 2 Cir., 170 F. 893, 896:
'It ought to be against public policy to permit a vessel to contract against her own fault. To allow her to do so begets recklessness, carelessness and neglect. The same reasons for prohibiting such a contract in the case of common carriers apply, though not, perhaps, to the same extent, in the case of a towage contract. In both cases the design is to prevent those who have the absolute control of another's property from extorting an agreement that they may neglect all reasonable precautions to preserve it.'
If the tug is only a contract carrier, it is not liable for injury to the tow in the absence of negligence. See Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699. But though a contract carrier, the tug may as effectively command the market and have as complete control of the tow and cargo as any common carrier. The reasons stated by Judge Coxe seem, therefore, as germane to the contract carrier as to the common carrier.
It may be that the rule of The Steamer Syracuse is outmoded and should be changed. It may be that the tugboat industry is less able to carry the risks of those losses than its customers. It may be fairer in the long run to let the tugboat operator free himself from his own negligence and transfer the liability to the shippers who employ his services. But the very statement of the problem raises large questions of policy on which the present records throw no light. We would have to know much more about the economics and organization of the tugboat industry than we are offered here to fashion a new rule. Accordingly, I would continue to enforce the established rule of The Steamer Syracuse that has its roots deep in history and experience, until and unless Congress adopts another one.
Mr. Justice FRANKFURTER, whom Mr. Justice REED and Mr. Justice BURTON join, dissenting.