Church, J.
1. The defendants have considered themselves as bailees for hire, and subject only to the responsibilities attachable to that character. If they are right in this, then a question of care and diligence, under the circumstances of the case, was one which ought by the judge at the trial to have been submitted to the jury. But if the defendants were common carriers, and liable for all losses not occasioned by the act of God, &c. then a very different question was to be settled.
We consider the defendants responsible in the latter character. They were owners of the coasting vessel Maria, a vessel, as was conceded, generally engaged in the transportation of goods for hire ; and as such owners, the defendants, by their captain, received on board the cotton in question, to be transported from the port of New-York to Norwich. That the defendants, as owners of this vessel, were common carriers, and as such, liable to all the responsibilities resulting from that employment, is well settled in the American courts; and in England, it was never disputed as a principle of mercantile law, although in that country, by stat. 26 Geo. 3. the liabiliity of ship-owners has been modified. 2 Kent’s Com. 465. Story on Bailments, 323. Richards & al. v. Gilbert, 5 Day, 415. Williams & al. v. Grant, 1 Conn. Rep. 487. Colt v. McMechin, 6 Johns. Rep. 159. Shieffelin v. Harvey, 6 Johns. Rep. 170. Watkinson v. Laughton, 8 Johns. Rep. 213. Stewart v. Russell, 10 Johns. Rep. 1. Kemp & al. v. Coughtry, 11 Johns. Rep. 107. McClure v. Hammond, 1 Bay, 99. Bell v. Reed, 4 Binn. 127.
[419]*419In most of the cases here referred to, attempts were made to induce the courts to relax, what was called the severity of the-Common law rule on this subject; but we have found, in the commercial states of this Union, with perhaps-the exception of Louisiana, but one case in which such an attempt was successful. In the case -of Aymar v. Astor, 6 Cowen, 266. the supreme court of the state of New- York decided, that “ the masters or owners of a vessel transporting goods on the high seas, are not common carriers; and in an action against them for loss or damage of goods, for any other cause than the act of God, &c. it should be submitted to the jury upon the evidence, whether they used ordinary care and diligencethus giving countenance to the claim of the defendants in the present case. Of this case the late Chancellor Kent says : “ It has gone far to unsettle and reverse the former doctrine in the state of New- York, in respect to carriers by water.” And again; “ I apprehend, with great deference, that the case of Aymar v. Astor, so far as it meant to decide, that masters of vessels are not liable as common carriers, is not to be taken for sound law.” And Mr. Justice Story, referring to the same case says : “ The decision is in direct repugnance to prior decisions made on the same point, in the same court.”
^ We are not dissatisfied with the reasons whieh originated the common law responsibility of common carriers, and believe they apply, with peculiar force, at this day, and in this country, as it respects carriers by water, more especially; upon which element a spirit of dangerous adventure has grown up, which disregards the safety, not of property merely, but of hu-^ man life. " —-
The bill of lading in evidence in this case, wherein the dangers of the seas are excepted, did not vary or qualify the liability of the defendants as. common carriers. The act of God, inevitable accident, dangers of the sea, &c. are expressions of very similar legal import, and excuse a loss, whether they are repeated in a bill of lading or not. 3 Kent's Com. 171. Williams v. Grant, 1 Conn. Rep. 492.
We conclude, therefore, with the Judge at the trial, that the question was not one of care or prudence, but misconduct or deviation on the part of the master or owners.
2. It was claimed by the defendants, that if the cotton was thrown overboard to save the vessel, and the lives of those on [420]*420board, this was a loss by dangers of the seas, within the exception of the bill of lading, and not the consequence of the master’s misconduct. If this were all, this claim of the defendants could not be resisted ; and so the jury were instructed. This raised the question of deviation, which the plaintiffs insisted the master had been guilty of; for if there had been a deviation in the voyage from New- York to New-London and Norwich, by reason of which the storm was encountered, and the danger incurred, it was such misconduct as would subject the defendants, and deprive them of the justification which they would have had, if the same loss had been incurred in the prosecution of a voyage properly conducted.
There was a deviation, if the master, without reasonable necessity, either physical or moral, departed from the usual route of vessels between the ports of Ncw-York and New-London ; and of such deviation freighters, as well as insurers, may take advantage. 3 Kent’s Com. 165. Williams v. Grant, 1 Conn. Rep. 492. Davis v. Garrett, 6 Bing. 716. Read v. Commercial Ins. Co. 3 Johns. Rep. 348. Urquhart v. Barnard, 1 Taun. 456. Hughes on Ins. 197.
It was conceded in this case, and the fact is too notorious for dispute, that the usual track of vessels from New-York to Neiu-London, and other Eastern ports, is, through Long-Island Sound, both Summer and Winter. Was the master, in the present instance, justified in departing from this route, and performing his voyage through the open sea, on the South side of Long-Island, in the month of February ? Was there any reasonable necessity for this? We think there was not. The claim is, that the navigation of the Sound was obstructed by ice, and so continued longer than had been usual in former seasons. Still we see no necessity for the sailing of this vessel, while these obstructions continued. The obstruction was of such a nature, that the master and all concerned knew, that at a day not very remote, it must be removed. This was known, when the goods were placed on board. There was no contract which rendered it the duty of the master to sail by a given time, or to complete his voyage before a specified day. And if there had been, the freezing of the Sound, and the unusual continuance of the obstruction, was such an act of God as would probably have justified a longer stay in the port of departure.
[421]*421The distinction is a very obvious one between the present case and one in which a vessel already on her voyage and in - transitu, departs from the usual route, by reason of obstructions of this nature, or of blockades, &c. in such cases, the master must act; a necessity is thrown upon him ; and if he is governed by a sound discretion, he stands justified.
Free access — add to your briefcase to read the full text and ask questions with AI
Church, J.
1. The defendants have considered themselves as bailees for hire, and subject only to the responsibilities attachable to that character. If they are right in this, then a question of care and diligence, under the circumstances of the case, was one which ought by the judge at the trial to have been submitted to the jury. But if the defendants were common carriers, and liable for all losses not occasioned by the act of God, &c. then a very different question was to be settled.
We consider the defendants responsible in the latter character. They were owners of the coasting vessel Maria, a vessel, as was conceded, generally engaged in the transportation of goods for hire ; and as such owners, the defendants, by their captain, received on board the cotton in question, to be transported from the port of New-York to Norwich. That the defendants, as owners of this vessel, were common carriers, and as such, liable to all the responsibilities resulting from that employment, is well settled in the American courts; and in England, it was never disputed as a principle of mercantile law, although in that country, by stat. 26 Geo. 3. the liabiliity of ship-owners has been modified. 2 Kent’s Com. 465. Story on Bailments, 323. Richards & al. v. Gilbert, 5 Day, 415. Williams & al. v. Grant, 1 Conn. Rep. 487. Colt v. McMechin, 6 Johns. Rep. 159. Shieffelin v. Harvey, 6 Johns. Rep. 170. Watkinson v. Laughton, 8 Johns. Rep. 213. Stewart v. Russell, 10 Johns. Rep. 1. Kemp & al. v. Coughtry, 11 Johns. Rep. 107. McClure v. Hammond, 1 Bay, 99. Bell v. Reed, 4 Binn. 127.
[419]*419In most of the cases here referred to, attempts were made to induce the courts to relax, what was called the severity of the-Common law rule on this subject; but we have found, in the commercial states of this Union, with perhaps-the exception of Louisiana, but one case in which such an attempt was successful. In the case -of Aymar v. Astor, 6 Cowen, 266. the supreme court of the state of New- York decided, that “ the masters or owners of a vessel transporting goods on the high seas, are not common carriers; and in an action against them for loss or damage of goods, for any other cause than the act of God, &c. it should be submitted to the jury upon the evidence, whether they used ordinary care and diligencethus giving countenance to the claim of the defendants in the present case. Of this case the late Chancellor Kent says : “ It has gone far to unsettle and reverse the former doctrine in the state of New- York, in respect to carriers by water.” And again; “ I apprehend, with great deference, that the case of Aymar v. Astor, so far as it meant to decide, that masters of vessels are not liable as common carriers, is not to be taken for sound law.” And Mr. Justice Story, referring to the same case says : “ The decision is in direct repugnance to prior decisions made on the same point, in the same court.”
^ We are not dissatisfied with the reasons whieh originated the common law responsibility of common carriers, and believe they apply, with peculiar force, at this day, and in this country, as it respects carriers by water, more especially; upon which element a spirit of dangerous adventure has grown up, which disregards the safety, not of property merely, but of hu-^ man life. " —-
The bill of lading in evidence in this case, wherein the dangers of the seas are excepted, did not vary or qualify the liability of the defendants as. common carriers. The act of God, inevitable accident, dangers of the sea, &c. are expressions of very similar legal import, and excuse a loss, whether they are repeated in a bill of lading or not. 3 Kent's Com. 171. Williams v. Grant, 1 Conn. Rep. 492.
We conclude, therefore, with the Judge at the trial, that the question was not one of care or prudence, but misconduct or deviation on the part of the master or owners.
2. It was claimed by the defendants, that if the cotton was thrown overboard to save the vessel, and the lives of those on [420]*420board, this was a loss by dangers of the seas, within the exception of the bill of lading, and not the consequence of the master’s misconduct. If this were all, this claim of the defendants could not be resisted ; and so the jury were instructed. This raised the question of deviation, which the plaintiffs insisted the master had been guilty of; for if there had been a deviation in the voyage from New- York to New-London and Norwich, by reason of which the storm was encountered, and the danger incurred, it was such misconduct as would subject the defendants, and deprive them of the justification which they would have had, if the same loss had been incurred in the prosecution of a voyage properly conducted.
There was a deviation, if the master, without reasonable necessity, either physical or moral, departed from the usual route of vessels between the ports of Ncw-York and New-London ; and of such deviation freighters, as well as insurers, may take advantage. 3 Kent’s Com. 165. Williams v. Grant, 1 Conn. Rep. 492. Davis v. Garrett, 6 Bing. 716. Read v. Commercial Ins. Co. 3 Johns. Rep. 348. Urquhart v. Barnard, 1 Taun. 456. Hughes on Ins. 197.
It was conceded in this case, and the fact is too notorious for dispute, that the usual track of vessels from New-York to Neiu-London, and other Eastern ports, is, through Long-Island Sound, both Summer and Winter. Was the master, in the present instance, justified in departing from this route, and performing his voyage through the open sea, on the South side of Long-Island, in the month of February ? Was there any reasonable necessity for this? We think there was not. The claim is, that the navigation of the Sound was obstructed by ice, and so continued longer than had been usual in former seasons. Still we see no necessity for the sailing of this vessel, while these obstructions continued. The obstruction was of such a nature, that the master and all concerned knew, that at a day not very remote, it must be removed. This was known, when the goods were placed on board. There was no contract which rendered it the duty of the master to sail by a given time, or to complete his voyage before a specified day. And if there had been, the freezing of the Sound, and the unusual continuance of the obstruction, was such an act of God as would probably have justified a longer stay in the port of departure.
[421]*421The distinction is a very obvious one between the present case and one in which a vessel already on her voyage and in - transitu, departs from the usual route, by reason of obstructions of this nature, or of blockades, &c. in such cases, the master must act; a necessity is thrown upon him ; and if he is governed by a sound discretion, he stands justified. But here it may as well be claimed, that the master would be justified in leaving a safe port during the existence of a violent tempest, or in the face of blockading or embargo restrictions, because it might be uncertain how long these impediments would be in his way. The port of destination in this voyage was Norwich; and it is conceded, that the obstruction caused by ice to the navigation of the river Thames, usually continues several days longer than the Sound continues frozen. The master knew, therefore, that he could not complete his voyage earlier in consequence of the course he adopted.
But it is said, that the danger from fire, thieves, &c. while lying in the port of New-York, created such a necessity of sailing as justified the master in taking the outside passage. It is true, that danger of this sort, to some extent, existed, and does always exist, in all ports ; and perhaps very nearly as much at one port as another — as much at Norwich and New-London, as at New- York. This pretended danger, certainly, could not be esteemed imminent or uncommon; and could not justify any unusual or hazardous experiment. Oliver v. Maryland Ins. Co. 7 Cranch, 487. No fact appears, from which we can infer any necessity for the sailing of this vessel on the outside of Long-Island; and by adopting that route, we think the master was guilty of a deviation.
It is claimed, to be sure, that this was a question of fact; and as such, ought to have been submitted to the jury. We have ever supposed, that upon given facts, whether deviation or not, was a question of law ; and so we find it treated in all the cases. Suydam v. Marine Ins. Co. 2 Johns. Hep. 138. Graham v. Commercial Ins. Co., 11 Johns. Rep. 352. Brown v. Betts, 9 Cowen, 208. Newell v. Hoadly, 8 Conn. Rep. 381.
3. Although it was not denied, that the general usage of vessels bound from New- York to New-London and Eastern ports, was, to sail through Longrlsland Sound, as well in the Winter as at other seasons ; yet the defendants claimed, [422]*422that there was, to some extent, a practice for such vessels, when the Sound was obstructed by ice, to sail on the South side of the island ; or at least, that the exceptions from the general usage were so frequent as that the master in the present case, could take the outside voyage, without being guilty of a deviation. On this point the jury were instructed, that no practice or usage for such vessels to perform their voyages on the South side of Long-Island, when the Sound is frozen, and the navigation for that reason obstructed, would justify the master in prosecuting his voyage on said South side, instead of waiting in New- York until the usual navigation became free, unless such usage was general, and of so long standing as to have become generally known.
If the question in the case had been one of care and prudence merely, perhaps such partial usage might have been material to show a want of gross negligence on the part of the master; but that was of no avail to show there had been no deviation. Freighters and insurers, in all their commercial transactions, are presumed to act and to contract in reference to known and general usage, and to submit to it; and such general usage may be well enough said to become a part of all their contracts. And if without consent, a partial practice is substituted as governing a voyage or other commercial operation, it operates as interposing a new contract, not agreed to by the parties, and perhaps as a fraud. Indeed, usage should not be regarded at all, unless it be of such a character as may be supposed to influence parties; and none can be ordinarily presumed to do this, but such as is public and continued. And therefore, it is not sufficient to prove a few instances, not amounting to general practice, as an excuse of what otherwise would have been a deviation. Martin v. Delaware Ins. Co. 2 Wash. C. C. Rep. 254. 1 Condy’s Marsh, on Ins. 186. note. Hughes on Ins. 145. Gabay & al. v. Lloyd, 3 Barn. & Cres, 793. Trott v. Wood, 2 Gallison, 444. Barber v. Brace, 3 Conn. Rep. 10. Lawrence v. Stonington Bank, 6 Conn. Rep. 521. Gibson v. Culver, 17 Wend. 305.
4. Another consideration has been urged upon us, by the defendants, as furnishing a defence to this action. But we cannot listen to it.
The owners of this cotton, as soon as they were advised, by their correspondent in Nero- York, that the Maria had taken, [423]*423or would, without their consent, take the outside voyage, effected an insurance upon it, on such voyage, and after the loss, demanded payment of the underwriters. Whether there are any equitable circumstances, which, as between these parties, ought to induce the plaintiffs to resort to the underwriters for indemnity, we do not know. Certain it is, that the mere fact that an insurance has been effected upon goods, will not discharge carriers from their legal responsibilities to freighters. Neither the insurance, nor demand of payment, furnished any evidence of the consent or acquiescence of the plaintiffs in the voyage actually pursued. They had no reason to suppose it was contemplated until it was too late to interfere ; and the^ they had a right to fortify themselves with as many means of indemnity, as they pleased, and resort, in the event, to any remedy they»had, either against the ship-owners or the insurers.
5= The court believe, that such part of AverilVs deposition as was objected to, did not conduce to prove the fact for which it was admitted; and was, therefore, irrelevant in that respect. But as it* was admitted ouly as conducing to show a general usage, which was not denied, it had no manner of effect in this particular; and its admission furnishes no ground for a new trial.
We ought to remark, however, that we are not influenced in this opinion, by the statement in the motion, that the usage referred to was satisfactorily proved by other testimony; for whether it was so or not, we are of opinion it was for the jury alone conclusively to decide. Such statements in motions for new trials, upon the authority of a similar one in the case of London v. Humphrey, 9 Conn. Rep. 209. have sometimes been made, and perhaps before the decision of that case ; yet upon more reflection, we are led to doubt the propriety of this practice; and decide not to regard it in future.
We do not advise anew trial.
In this opinion the other Judges concurred.
New trial not to be granted.