2 Watts 114 | Pa. | 1833
The opinion of the Court was delivered by
Had the judge said no more than that the carrier is bound to provide a carriage or vessel in all respects adequate to the purpose, with a conductor or crew of competent skill or ability, and that “failing in these particulars, though the loss be occasioned by the act of God, he shall not set up a providential calamity to protect himself against what may have arisen from his own folly;” there would have been no room for an exception. But the cause was eventually put to the jury on a different principle : “ though the accident resulted from the act of God,” it was said, “and couldnothave been prevented by any human prudence or foresight, and though it .would
Does such a penalty necessarily result from the nature of the contract 1 A carrier is answerable for the consequences of negligence, not the abstract existence of it. Where the goods have arrived safe, no action lies against him for an intervening but inconsequential act of carelessness: nor can it be set up as a defence against payment of the freight; and for this plain reason, that the risk from it was all his own. Why, then, should it, in any other case, subject him to a loss which it did not contribute to produce, or give an advantage to one who was not prejudiced by ill It would require much to reconcile to any principle of policy or justice, a measure of responsibility which would cast the burthen of the loss on a carrier whose wagon had been snatched away by a whirlwind in crossing a bridge, merely because it had not been furnished with a proper cover or tilt to protect the goods from the weather. Yet the omission to provide such a cover would be gross negligence, but, like that imputed to the carrier in the case before us, such as could have had no imaginable effect on the event. A carrier is an insurer against all losses without regard to degrees of negligence in the production of them, except such as have been caused by an act of providence, or the common enemy: and why. is. he sol Undoubtedly to subserve the purposes, not of justice in the particular instance, but of policy and convenience: of policy, by removing from him all temptation to confederate with robbers or thieves—and of convenience, by relieving the owner of the goods from, the necessity of proving actual negligence, which, the fact being peculiarly within the knowledge of the carrier or his servants, could seldom be done. Jones on Bail. 108, 109; 2 Kent 59, 78. Such are the rule and the reason of it, and such is the exception. But we should enlarge the rule, or to speak more properly, narrow the exception far beyond the exigences of policy or convenience, did we hold him an insurer against even the acts of providence, as a punishment for an abstract delinquency, where there was no room for the existence of a confederacy, or the operation of actual negligence; and to carry a responsibility, founded in no principle of natural equity beyond the requirements of necessity, would be gratuitous injustice. A delinquency which might
But it has been supposed that there is a difference, depending on the peculiar nature of affreightment-, between the. liability of a carrier by water and that of a carrier by land ; and that being an insurer, there is necessarily in the contract of the former, as in every contract of marine insurance, an -implied warranty or condition of seaworthiness. If that be the foundation of the doctrine, it falls to the ground in every case like the present: for it is not to be admitted that the law of maritime contracts can be applied to freshwater transactions ; or that calling the receipt of a carrier on the Ohio a bill of lading, or the misapplication of other terms appropriate only to maritime commerce, can change the essential character of the things designated by them. Steamboats on the Ohio, and ships in the foreign or coasting trade, are subject to different Jaws, both municipal and international, as regards registry, ownership, documents, hypothecation, insurance, freight, wages, authority of the master, and a variety of other matters] as well as the rights and remedies to which they give' rise, and the courts which have ^cognisance of them. How far principles of maritime law may be applicable to the navigation of the great American lakes, which are, in fact, inland seas, and have been the field of naval achievement and glory, it is unnecessary to say; but the hiring of a boat for purposes of transportation on one of our freshwater rivers, I take to be attended with no peculiar incident of a charter party of affreightment, the contract being regulated exclusively by the common law. But these incidents are immaterial as to t.heir supposed effect on the present question, because the same rule in respect to the vehicle is undoubtedly applicable to every sort of carriage, the owner of a ship being liable as a common carriel-, on strict common law principles, for damage occasioned by any defect of seaworthiness, 3 Kent 204—206, just as a carrier by land is liable for damage occasioned by any defect in his wagon. The assertion that the carrier is bound to provide a sufficient vessel, or
Standing thus on the principles of the contract, it remains to be seen how'the question stands on authority. The only thing in the books like a judicial decision of the point against the carrier, is the already quoted nisiprius opinion of Mr Justice Brackenridge, which is supposed to have been affirmed by this court in bank, and which, therefore, merits a particular examination. It had relation to a case of stranding by storm, in which the point of defence was, that the loss had been occasioned by the act of God; to rebut which, evidence was given of want of seaworthiness by reason of certain defects in the cable and hull. The matter was put to (the jury as a question of fact, and found for the carrier; and the owner of the goods appealed from an adverse determination of his motion for a new trial. The judge certainly did charge that it lies at the bottom of the contract, as a condition on which the custody of the goods is charged, that the vehicle be a good one; and that if it be not, the carrier cannot, to excuse himself, from a subsequent loss, allege that it was inevitable. That he cannot urge the act of God as an excuse, when he himself had not used the human means and precautions which he had undertaken and was bound to use • and that even a stroke of lightning, or a squall in the harbour’s mouth, ought not to be alleged by one who has fraudulently taken goods into an unfit vessel. That he called it fraud to do so; and that it is the faithful carrier only who can be excused on the ground of an act of providence. That in the case of an accident from winds or waves, it is impossible to say, but the unworthiness of the vessel may have contributed to render the loss inevitable; and that unworthiness being established, the legal presumption is, that it was the cause of the accident.. This is the substance of the charge ; and it is evident from it, that in fixing the carrier with consequences to which his negligence may have in nowise contributed, the judge considered the law as dealing with him for a fraud. In the remarks subjoined to his report of the trial, he avows that his opinion is not founded on the authority of adjudged cases, but on analogies drawn from the contract of insurance, though it be notorious that a breach of the warranty of seaworthiness is not not visited on the assured as a penalty, but operates to avoid the policy by the failure to perform it as a precedent condition. Our present business, however, is not with the reasons of the judge, but to ascertain exactly how far his position was established by the judges in bank. In delivering the opinion of the court, the Chief Justice remarked that there was no complaint of error of law; and that the law had been laid down fairly, the fact of seaworthiness having been left to the jury. The generality of this remark is to be qualified by the subject matter of which it was predicated. Un
Judgment reversed, and a venire de novo awarded.