From Moore. WILMINGTON, 11 December, 1806. (418)
Received of Mr. Henry Williams, in good order and well conditioned, the following articles, viz.:
1 Hogshead of Rum,
5 do. of Brown Sugar, etc.,
which said articles, I promise to deliver to Messrs. Nesbit Campbell at Fayetteville, the dangers of the river only excepted, their paying freight for the same.
HUGH McCALL.
One of the hogsheads of sugar mentioned in the receipt being larger than common, could not be stowed away in the hold of the boat, but was placed behind on the hatches, a place where *Page 282 sugar was sometimes, but not usually carried, except large hogsheads. There was at the time a considerable freshet in the river. About ten miles above Wilmington a large cypress tree stood on the bank, leaning over the water; and at this place there was a bend in the river. In passing this tree, the stream being rapid, the stern of the boat was driven in towards the bank, and passed under the tree, which forced the hogshead overboard, together with the skipper, who was trying to save it.
It appeared in evidence upon the trial of the cause that the skipper, after having deposited the other articles in his boat, did not wish to take on board this hogshead of sugar on account of its size, and he informed the plaintiff's agent that if the hogshead were taken it must be placed on the hatches; and the hogshead was placed there with his knowledge, he saying if the skipper would not take it he should take nothing.
It further appeared in evidence that at the time the hogshead was forced overboard the boat was in the common way, and that this was the only way along which boats could be got up the river in times of high water. That boats are got up the river by hooking and gigging; and that whilst the hands were engaged in the bow of the boat in hooking to the trees and limbs which stood on the bank or stretched over the water, the rapidity of the current drove the stern of the boat under the tree, which forced the hogshead overboard. The cypress tree (419) was a noted one, and well known to the skipper and crew of the boat; there appeared to be no neglect in the skipper and crew, unless the circumstances as stated constitute neglect in contemplation of law.
The jury found a verdict for the defendant, and a rule for a new trial being obtained upon the ground that the verdict was contrary to evidence, the same was sent to this Court. If the loss of the property were occasioned by such an accident as came fairly within the scope of the exception contained in the bill of lading, or receipt, the defendant ought not to be responsible; otherwise, he must be, upon every principle applicable to the duty of common carriers.
The words of that paper are, "dangers of the river only excepted," and signify the natural accidents incident to that navigation; not such as might be avoided by the exercise of that discretion and foresight which are expected from persons in such employment.
Nor, indeed, is every loss proceeding from a natural cause to be considered as happening by a peril of the sea; for if a ship perish in consequence of striking against a rock or shallow, the *Page 283 circumstances under which the event takes place must be considered, in order to decide whether it happened by a peril of the sea or by the fault of the master. If the situation of the rock or shallow be generally known, and the ship not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master (Abbot, 169); or if the shallow were occasioned by a sudden and recent collection of sand in a place where ships could before sail in safety, the loss is to be attributed to the act of God or the perils of the sea. Id.
Apply this principle to the case before us, and consider whether the circumstances under which the loss happened do not announce a degree of carelessness or temerity in the skipper that ought to render the defendant responsible (420) to the plaintiff.
The force of the current in the time of a freshet, and the increased danger thence arising from the cypress tree, were well known to the skipper. He should not have adventured to pass the bend at such a time, without employing adequate precautions to obviate the danger, if, indeed, any precaution could have been sufficient. But in prosecuting that part of the voyage at such an unseasonable time, he took the risk upon himself. The state of the river, it is true, was equally known to the plaintiff, but he neither knew the consequent hazard connected with this part of it, nor does it appear that he urged the departure of the skipper in the face of such danger.
Here, then, was no tempest — no irresistible impulse of natural causes, but a fixed and well-known danger, which every man accustomed to the navigation would calculate upon meeting, if he proceeded on the voyage at such a time, with only the usual number of hands; and even these, it appears, were all employed at the bow of the boat, whilst none were left in the stern to counteract the tendency of the current to force that part under the tree. Thus, in Amis v. Stephens, 1 Stra., 128, where the plaintiff put goods on board the defendants' hoy, which sunk in consequence of a sudden gust of wind, as she came through a bridge, the Court held the defendant not liable, as the accident was occasioned by the act of God; but they said, if the defendant had ventured to shoot the bridge at a time when the general bent of the weather was tempestuous, he would have been liable. The rule for a new trial must be made absolute. *Page 284
(421)