delivered the judgment of the majority of the Court as follows :
This is a suit brought by the libellants, Edward Asegut and Julius Reinhardt, against the respondents, James C. King, William L. G-reen and Frank Molteno, on the instance side of the Court, in which the libellants claim to recover from the re*734spondents, the value of 600 kegs of sugar .and 70 barrels of molasses, shipped by the libellants in the month of January, 1864, on board of the schooner “ Emma Rooke,” the vessel of the respondents, which was wrecked at Honoipu, Hawaii, on her passage to Honolulu, and with her cargo totally lost.
The suit was originally brought before Mr. Justice Davis, who gave judgment in favor of the libellants, for the sum of $4,574 08J, from which judgment the respondents appealed to the full Court.
In the adjudication of this cause, two questions are presented for the decision of the Court, viz : firstly, as to the legal rules by which the case must be governed, and, secondly, whether or not the respondents, under the law as declared by the Court, should be held responsible for the loss of the libellants’ property.
The common law of England, in relation to the duties and obligations of common carriers, which is the subject involved in this case, has never been formally adopted as the law of this Kingdom, either by legislative enactment or by judicial adoption. It is argued therefore, on behalf of.the respondents, that now, when the Court is called upon for the first time to declare the legal rule of responsibility which is to govern and measure the liability of common carriers in this country, we ought not, upon considerations of public policy, to adopt the strict rules of the English common law, but rather some rule more favorable to the ship-owner, based upon the principles of the civil law and the marine ordinances of France, limiting the liability of the ship-owner similarly to the modern commercial laws of Great Britain and the United States of America.
After due deliberation, we have formed an opinion adverse to the view thus contended for. In our opinion, it is wiser for the court to adhere to the rules of the common law of England, ' the beneficial working of which has been so long tested and exemplified in the traffic of the two greatest commercial States of the world. We accordingly adopt and declare the rule, subject however to modification by special contract between ■the parties, that the owners of vessels employed as common carriers in this Kingdom, are to be held answerable for the loss or damage of all property shipped for transportation on board *735of such vessels, unless it shall appear that such loss or damage resulted from unavoidable accident, i. e., the act of God, or the act of a public enemy.
Having thus declared the law applicable to the case, we will now. proceed to consider whether or not, upon the evidence, the respondents should be held legally liable for the loss of the libellants’ property. The main facts of the case will be found carefully and clearly stated in the decision rendered by Judge Davis, and we need not repeat them at length. The vessel arrived at the landing at Honoipu, which is formed by an indentation on the coast of Hawaii, about 2 o’clock, a. m., and was made fast to the buoy as is usual, her jib being. hauled down and the peaks of her mainsail and foresail lowered. She remained there all the morning, or till near 9 o’clock, a. ji. While she lay there the wind was off the land, somewhere from the East to the East-South-East, as the trade winds, which usually blow from about Northeast, do not as a general rule set down- till after 10 o’clock, a. m. The weather was good and the breeze moderate. Nearly due North from the buoy there is a point or shoal, at a distance of 104 fathoms, with some rocks merely washed by the water setting out from the point, to within 90 fathoms of the buoy ; nearly South-South-West from the buoy is the opposite point of land, at a distance of about 200 fathoms from the buoy, with deep waiter close up to the shore. XJnder these circumstances, Capt. Berrill, in getting his vessel under way, determined to cant her bow off to the starboard hand, towards the Southern portion of land, as being the most feasible course of putting to sea. Accordingly the main-boom was guyed to starboard, and the fore-boom to the port side, the helm being put hard-a-port. As soon as the hawser was let go and the vessel’s head took the desired direction, the master ordered the jib to be hoisted and the sheet hauled to windward, in order to turn the vessel round to seaward, the peak of the mainsail remaining lowered. When the jib had been partially hoisted, the vessel was struck by a sudden flaw or gust of wind, which caught the jib and fouled it over the lee anchor-stock, so that it could not be got up, nor the sheet hauled to windward as desired, and instead of turning the vessel’s head round, the jib, according to the testimony of the witnesses, helped to urge *736the vessel forward on tbe wind' towards tbe Southern shore. The main sheet was then slacked off to the utmost, and seeing the danger of running on shore, the master let go the halliards of the mainsail and endeavored to get it down, but it stuck against the starboard main rigging. The jib was finally got up,, but too late to prevent the vessel from striking, which she did at a point nearly due South from the buoy, and within ten minutes after she had been got under way.
The allegation of the libel is, that the loss of the vessel and cargo resulted from the negligent and unseamanlike manner in which the vessel’s sails and rudder were managed, and was in no sense the result of unavoidable accident; and before the libellants can recover, it is necessary that they shall have proved this allegation to the satisfaction of the Court-
After carefully examining and weighing all the. evidence, we fail to see that the libellants have made out their case by the proofs. On the contrary, we are of the opinion that, in view of all the circumstances of the case- — the early hour of the day, the course of the wind, the greater relative distance of the South point than the North point, from the place where the vessel lay, the fineness of " the weather and steadiness of the breeze, as averred and proved by both parties — the weight of evidence shows satisfactorily that the course adopted by Captain Berrill, in attempting to put to sea, was usual, prudent, and seaman-like ; and that the fouling of the jib by a sudden and unexpected flaw or puff of wind, preventing the setting of that sail in a seasonable and proper manner, which' caused the disaster to the vessel, was one of those occurrences which are usually classed under the head of unavoidable accidents, and styled in legal phraseology the act of God.
Many cases have been cited by the learned counsel in their argument of the cause, and some of them are not essentially different from the case before us. In the old case of Amies vs. Stephens, (1 Str. 128) where the master of a hoy attempted to shoot a bridge on the River Thames, but by a sudden gust of wind the hoy was driven on to one of the piers and lost. The decision of the Court was in favor of the defendant, the Lord Chief Justice Pratt, stating that if the hoyman had attempted to shoot the bridge when the bent of the weather was tempestuous, *737and the hoy had been lost, he would have been held responsible. In the case of Colt and Colt vs. McMechen, (6 Johnson’s R., p. 159,) a sloop beating up the Hudson River against a head wind, ran aground through a sudden failure of the wind, near the highlands. In that case the verdict of the jury was in favor of the defendant, and, upon motion for a new trial, the Supreme Court of New York refused to grant it. In our opinion, the circumstances of the case at bar ar.e far more favorable for the respondents, than those of the case just referred to were for the defendant.
It is argued that the respondents should be held responsible, on the ground that the striking of the vessel on the South point might have been prevented by the adoption of a different course of putting to sea from that which was pursued. It is said that, before casting off from the buoy, the master might have caused both the mainsail and foresail to be lowered down, and, as the wind was blowing off the land, the vessel would have drifted safely out to sea. But there is no evidence tending to show that such a course is usual, or that, under the circumstances, it could be considered seaman-like; on the contrary, the proof is, that such a proceeding would have been unusual and unseaman-like. Again, it is said, the line or hawser, which held the vessel to the buoy, might have have been taken from the bow and made fast at the taffrail, so as to have allowed the vessel’s head to swing out to seaward, before starting ; but there is no evidence before us that such a precaution is ever resorted to by vessels leaving Honoipu, or that such a course is usual or necessary, under circumstances equally favorable with those which existed in the present instance.
As we understand the law, the question is not whether the striking of the vessel could have been prevented by the exercise of extreme caution, or by some mode of proceeding which, the ingenuity of man might have devised. Such a doctrine would be unreasonable, impracticable of application, and unsustained by legal authority. The master of the “ Emma Rooke ” having done that which, under the ordinary and favorable circumstances-in which the vessel was placed,, is. shown by the evidence to be usual, proper, and seamanlike, we are of the opinion that he did all that could be required of him; and that the law *738does not require, in any ordinary case, the adoption of extraordinary measures of precaution.
June 3, 1865. 0. 0. Harris, Esq., for libellants. Messrs. Stanley and Montgomery for respondents.Our decision therefore is that the judgment below should be reversed. Let judgment be entered in favor of the respondents.