The Clematis , 5 F. Cas. 1008 ( 1872 )

LONGYEAR, District Judge.

The ease has been argued and submitted on the exception, before proceeding to a hearing on the merits. Other objections to the libel were raised at the hearing, but as the above is the only exception found stated in the pleadings, it will be the only one noticed. The argument in support of the exception proceeds upon the assumption that there is no privity of contract between the barge and the tug Clematis. The right of action in this case does not necessarily rest upon breach of contract. It has a sufficient foundation in tort. The casting off of the barge's line and abandoning her to her fate in time of peril, as charged in the libel, was a misfeasance. It was a violation of a duty toward the barge, which had become incumbent on the tug by her taking the barge's line and towing her to the place of danger, in which she is charged in the libel with having left the barge to her fate, without just cause. No-matter whether the tug so took the barge’s line and did such towing with or without a contract with the barge. In other words, after she had taken the barge’s line and towed her to a place of danger, it was the tug’s duty to retain the line and stand by her so long and so far as possible, and for a breach of that duty an action will lie. Shear. & R. Neg. § 112. See. also, opinion of Justice Woodbury, 6 How. [47 U. S.] 418. And even upon the basis of a breach of contract, I am inclined to think that, upon the authority of the decision of the United States supreme court, in the case of New Jersey Steam Nav. Co. v. Merchants’ Bank. 6 How. [47 U. S.] 344, 380, the action will lie. But from the view already taken, it is unnecessary to discuss this aspect of the case. Exception overruled.