The opinion of the court was pronounced by
Bedle, J.The plaintiffs below were owners of two hundred tons of Glendon pig iron, lying at the dock of the defendants in Newark, and which they had bought while lying there, of other parties. The plaintiffs were manufacturers of iron at Saugerties, in New York state, and on the 8th day of November, 1865, wrote to the defendants to engage vessels and ship this iron to the plaintiffs’ iron works, at San*562gerties, and also stating that they presumed the freight could be engaged at about one dollar per ton. No answer having been received, the plaintiffs again wrote to the defendants November 13th, 1865, inquiring whether it was being shipped. To this the defendants telegraphed that they could not get iron freight to Saugerties for less than one dollar and fifty cents per ton, and asking if they should give it. The plaintiffs thereupon replied, “Pay $1.50 freight to Saugerties.” This must have been about the 13th of November. Five or six days afterwards, the plaintiffs received a bill of landing from the defendants, dated November 18th, 1865, by which it appeared that the iron had been shipped by the defendants on their own barge, the Charles Mayo, and in which bill of lading the defendants acknowledged that the iron had been so shipped, “ in good order and condition,” and that the same was “to be delivered in like order and condition at the port of Saugerties (the dangers of the seas only excepted,) unto Tuekerman, Milligan & Co., or their assigns, he or they paying freight for the said pig iron one dollar and fifty cents per ton of twenty-two hundred and forty pounds, without primage or average accustomed.” The defendants at this time were running a line of steamboats and barges between New York and Newark; that was their regular line, but they would occasionally take goods for transportation other than on the usual line, as in this case. The superintendent testifies that not finding one vessel that would take the whole, he concluded to ship it on the company’s own barge. The barge loaded with the iron, was towed from Newark to New York, and reached there safely. The next day afternoon, about six o’clock, she left New York in a tow of twenty odd vessels, propelled by a steamboat, for Saugerties. On the way up Hudson river, the vessel sank abreast of Upper Nyack, during a storm, at two or three o’clock in the night. It had sprung a leak, and after beginning to sink was cut loose to save the other boats. Afterwards when raised, it was discovered that two planks on the bilge of the boat were sprung. The iroxx had been loaded mostly *563on deck, and none was saved except a few tons that had been pat in the iiold, and a small quantity that had been transferred to one of the other vessels before the Mayo sank. None of the iron had been delivered to the plaintiffs, and this suit was brought to recover damages for the non-delivery. The verdict was for the value of the iron. The judge at the circuit treated the defendants as bound by the obligations of a common carrier (the dangers of the seas only excepted,) and the case was submitted to the jury on the ground that they were common carriers. He evidently held them to that liability upon the strength of the contract — the bill of lading — and charged that, “ by this contract, the defendants became absolute insurers of this property against all losses except such as wore caused by the dangers of the seas; and the burthen of proof rests upon the defendants to satisfy you affirmatively that the loss in question was occasioned solely by the dangers of the seas, and if they have failed to do so, as otherwise insurers, they must respond to the plaintiffs for the value of the goods lost;” and also, that “ the burthen of proof lies in this wise: by proof of the delivery of the iron to the defendants, and its non-delivery at Saugerties, the plaintiffs have made out a prima facie case against the defendants, from which they can only escape by showing that the goods were lost in the course of transportation by the dangers of the seas.” Several bills of exceptions were taken bearing upon the character of the defendants’ liability, hut all may be disposed of by a determination of the question whether the defendants were, in this transaction, subject to the liability of common carriers, excepting only dangers of the seas. There was no dispute that the defendants were, in fact, common carriers between Newark and New York; but much of the discussion of counsel was, whether they were to be considered as common carriers to Saugerties, from the nature and circumstances of their business, and liable as such on the receipt of the iron for this trip from Newark to Saugerties. The solution of that difficulty is not necessary in this case, for the defendants had a *564right to assume and contract upon the liability of common carriers, whether, apart from the bill of lading, they were such or not. They contracted that liability by the bill of lading. That paper was an agreement which, after stating that the iron was shipped in.good order and condition, bound the defendants to deliver the same in like order and condition, the dangers of the seas only excepted. There is a recent case on that subject, Hay v. Wheeler, in the Exchequer Chamber, (Law Rep., C. P., vol. II, 302.) By this contract the defendants put themselves in the situation of a common carrier. Robinson v. Dinsmore, 2 Bos. & Pul. 416.
It makes no difference whether that liability arises from the mere relation of the parties, depending only on the nature and character of the business, or whether that relation is the result of express contract. Neither is it necessary that the contract should, in terms, mention that the defendants are common carriers. The court may judge of the character of their liability from the contract itself. The express mention of the exception, “ dangers of the seas only excepted,” excludes the conclusion of any less liability than the absolute delivery of the iron in the condition stipulated, subject to that exception only, and the nature of the article being such as to exclude all question of loss by inherent tendency to decay. The whole scope and form of the bill of lading are also the same as are usually adopted by common carriers, and the exception, dangers of the seas, being only an enlargement in some respects upon the common law phrase, the act of God, but so far as the facts of this cause are concerned is synonymous with it, and it was so regarded by the Supreme Court. The plaintiff’s claim rests upon the bill of lading, and by that the defendants clearly contracted upon the basis of a common carrier’s liability. As such they were insurers of the iron, as charged by the judge, and the burthen of proof, according to the well settled rules of common carriers, was upon them to bring themselves within the exception.
The next error assigned is to the charge, “ that where it *565appears that a vessel starts a plank when in a tow of twenty-five boats, among which were vessels of the same description and build, or of a build less suited to encounter the ordinary perils of navigation, that circumstance affords a presumption that she was unseaworthy, unless another adequate cause for the starting of the plank is shown.” The defendants had endeavored to show that the vessel was lost by the overwhelming nature of the storm and that the loss could not have been avoided by the ordinary efforts of care and skill. The court defined the expression, dangers of the seas, tornean “those accidents peculiar to navigation that are of an extraordinary character, or arise from irresistible force or overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence.” That was the definition approved of by the Supreme Court in this case, (3 Vroom 323) and it is correct. Angell on Carriers, § 167. The plaintiffs disputed that the storm was of such irresistible power, and alleged that if so, the defendants were negligent, and that the vessel was unseaworthy. On that question that part of the charge was made. It is only necessary now to say that from the facts as shown by the defendants, the presumption, which is merely one of fact, was fair and proper. Besides, it was merely the expression of an opinion upon the weight of a fact on which no error can be assigned.
The next assignment of error is to the charge, “that if you believe from the evidence, that the springing of these planks was the cause of the sinking of the barge, and that by reason of the condition of these planks or their fastenings, the barge was not seaworthy, the defendants will not be discharged because of their having had the barge examined, and that such defects were not discovered.” The last time this vessel was examined and overhauled, was about fourteen months before the disaster. The defendants were bound to provide a seaworthy vessel. The contract was not for care and deligence. The fact of examination of the vessel was competent as bearing, upon the question of *566her condition, but could not, in this case, relieve the defendants, if the jury believed, from the evidence, that she was, in fact, unseaworthy.
The remaining error alleged is to the charge, “ that if you find from the evidence that the barge was improperly loaded for its safety in transportation, and that the sinking of the barge was contributed to thereby, the defendants cannot discharge themselves by proof that this barge was loaded as barges usually are loaded.” In the same connection it was charged that proof of such custom “ is evidence that for the safety of transportation, such method of loading is a proper and safe method of stowing the loads, and the force of such evidence is not to be overcome, unless by clear proof that the loading was improper and unsafe, but proof of such custom will not conclude you from determining from all the evidence in the cause, whether in fact the barge was properly loaded.” This part of the charge was as favorable to the defendants as the law will permit. The iron was mostly stowed on deck in tiers, about twenty tons only being in the hold, and over the top of the iron on deck were tiered about thirteen tons of salt hay. The jury had a right to judge for themselves whether the vessel was properly loaded to secure a safe voyage, and the custom to load in that way could not be claimed to conclusively show that the vessel was properly loaded.
The judgment of the Supreme Court must be affirmed.
For affirmance — The Chancellor, Chief Justice, Bedle, Dalrimple, Van Syckel, Woodhull, Clement, Kennedy, Ogden, Olden, Vail, Wales. 12.
For reversal — None.