Kent, Ch. J.
The defendants move for a new trial on the following grounds:
1. Because the judge ruled that the contract placed th,e defendants in the character of common carriers.
2. Because he ruled that the testimony, as to what happened at Ogdensburgk, did not change their responsibility.
3. Because the verdict was against evidence.
1. The defendants, by their advertisement, undertook the carrying business, or the transportation of property for hire, from the ports of Lake Ontario to Montreal, by carrying the same in vessels from the ports of the lake to Ogdensburgh, and in scows and batteaux, from thence to Montreal, and they promised to perform the same with fidelity and safety. In pursuance of this general undertaking, Captain Holmes, in the employment of the defendants, took the ashes on board of bis sloop and brought them to Ogdensburgh, where they were embarked on board of their boat, under the care of Captain Prosser for Montreal; and all this was done with the knowledge and assent of the defendants. They were, therefore, common carriers, in the sense of the law, and liable to all the duties and responsibilities attached to that character.
It has long been settled that a common carrier warrants the safe delivery of goods, in all but the excepted cases of the act of God and public enemies; and there is no distinction between a carrier by land and a carrier by water. Masters and owners of vessels are liable, as common carriers, on the high seas, as well as in port f - and the argument of the ingenious counsel for the defendants, is not well supported in the position, that this doctrine of common carriers is, by the common law of England, to be confined to cases of transportation by water, within the jurisdiction of [8]*8the realm, and that it does not apply to losses arising out of the state. All the books and all the cases which touch this subject, lay down the rule generally, and apply it as well to shipments to or from a foreign port, as to internal commerce. In the case of Morse v. Slue, (T. Raym. 220. 1 Vent. 238. 290. 1 Mod. 85. S. C. 2 Lev. 69.) the defendant was charged as a common carrier, under the custom of the realm, and that by the custom, those who undertake to carry goods beyond sea, were bound to keep them safe, and that the goods in that case were delivered on board the ship of which the defendant was master, to be transported for a reasonable reward, to Cadis in Spain. Lord Holt, who was one of the counsel who argued the cause on the part of the plaintiff) said that the declaration was drawn by one of the best special pleaders of the time. The judgment of the court, in favour of the plaintiff) was delivered by Sir Matthew Hale, who declared that the master was liable, in consequence of the "reward which he or the owners received as freight, and that he was liable as a common carrier, for it was admitted that there was not the least negligence. Though the goods were lost by robbery on board the vessel in the river Thames, before the voyage had commenced, yet the court did not proceed on the ground that the master was responsible under one law, in port, and under another, at sea. The court said, the case was to be decided by the rules of the common law, and not of the admiralty law, and that there was no difference between this case and that of a common carrier. If the master ' be chargeable as a common carrier, for goods received to be transported beyond sea, it would seem to be very extraordinary and idle for the law to regard him in that character only from the time that the goods were received on board, until he had put to sea, and to regard him when coming from abroad, as common carrier only from the time that he entered within the jurisdiction of the port. There is no colour of such a limitation of the rule. The character, duty and responsibility of a carrier continue to attach to the master, as long as he has charge of the goods. Molloy, who was counsel with Holt in the above cause, cites the above case (b. 2. c. 2. s. 2.) to prove that, by the common law, the master is answerable “ if the goods be lost or purloined, or sustain any damage, hurt or loss, whether in the haven or port before, or upon the seas after, she is on her voyage.” If there be any exception as to this responsibility at sea, it proceeds from the special provision in the charter-party, or bill of lading, and not from any suspension of the [9]*9rule. The exception of the perils of the sea is not to be found in the forms of a charter-party, or bill of lading, as given by West under Elizabeth; (West’s Symb. part 1. s. 655, 656. 659.) but we find it afterwards in the charter-party in the time of Charles I. (Pickering v. Barkley, Sty. 132.) and the exception has lately been extended to almost every kind of accident. (Abbott, part 3. c. 2. s. 8.) There is, likewise, a recent British statute (26 Geo. III.) restraining the general responsibility of shipowners.. These exceptions are strong evidence of the acknowledged law which rendered them necessary. In short, it must be regarded as a settled point in the English law, that masters and owners of vessels are liable in port, and at sea, and abroad, to the whole extent of inland carriers, except so far as they are exempted by the exceptions in the contract of charter-party, or bill of lading, or by statute. (Rich v. Kneeland, Cro. Jac. 330. Goff v. Clinkard, 1 Wils. 282. note. Smith v. Shepherd, cited in 2 Com. on Cont. 323. Buller v. Fisher, 3 Esp. N. P. 67. Bever v. Tomlinson, East, 36. Geo. III. cited in Abbott, part 3, c. 4. s. 4.)
It would be of no avail, if the counsel for the defendants could succeed in taking this case out of the operation of the custom of the realm, and placing it under the marine law. That law is essentially the same, and holds an equally strict control over the master; and upon the same principle of public policy, a master of a vessel, or common carrier, by the almost universal law of nations, as well as by the common law of England, is chargeable for all losses not arising from inevitable accident. If, therefore, according to Roccus, a theft be committed on board, the master is answerable like an innkeeper, though the loss happen without his fault. So if the ship strike on a shoal, unless it be by the violence of winds or storms, he is liable, because he did not provide against an accident which a careful navigator would have foreseen. . So he is liable if he does not conduct the voyage with a due regard to the circumstances of the ship, time and place, and the practice of skilful navigators. (Roccus, n. 40. 55, 56.) Emerigon (tom. 1.373. 377.) says, it is so difficult to discover the faults of a master of a vessel, that he is held responsible for very slight negligence. He is in fault, if he has not foreseen what he ought to have foreseen, with due diligence. la short, he says, the master, in consequence of his compensation, is answerable for all damage which the cargo receives, unless it proceeds from an ec« [10]*10cident which he could not foresee or prevent. Valin declares expressly, (tom. 2. 394.) that nothing but the cas fortuit
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Kent, Ch. J.
The defendants move for a new trial on the following grounds:
1. Because the judge ruled that the contract placed th,e defendants in the character of common carriers.
2. Because he ruled that the testimony, as to what happened at Ogdensburgk, did not change their responsibility.
3. Because the verdict was against evidence.
1. The defendants, by their advertisement, undertook the carrying business, or the transportation of property for hire, from the ports of Lake Ontario to Montreal, by carrying the same in vessels from the ports of the lake to Ogdensburgh, and in scows and batteaux, from thence to Montreal, and they promised to perform the same with fidelity and safety. In pursuance of this general undertaking, Captain Holmes, in the employment of the defendants, took the ashes on board of bis sloop and brought them to Ogdensburgh, where they were embarked on board of their boat, under the care of Captain Prosser for Montreal; and all this was done with the knowledge and assent of the defendants. They were, therefore, common carriers, in the sense of the law, and liable to all the duties and responsibilities attached to that character.
It has long been settled that a common carrier warrants the safe delivery of goods, in all but the excepted cases of the act of God and public enemies; and there is no distinction between a carrier by land and a carrier by water. Masters and owners of vessels are liable, as common carriers, on the high seas, as well as in port f - and the argument of the ingenious counsel for the defendants, is not well supported in the position, that this doctrine of common carriers is, by the common law of England, to be confined to cases of transportation by water, within the jurisdiction of [8]*8the realm, and that it does not apply to losses arising out of the state. All the books and all the cases which touch this subject, lay down the rule generally, and apply it as well to shipments to or from a foreign port, as to internal commerce. In the case of Morse v. Slue, (T. Raym. 220. 1 Vent. 238. 290. 1 Mod. 85. S. C. 2 Lev. 69.) the defendant was charged as a common carrier, under the custom of the realm, and that by the custom, those who undertake to carry goods beyond sea, were bound to keep them safe, and that the goods in that case were delivered on board the ship of which the defendant was master, to be transported for a reasonable reward, to Cadis in Spain. Lord Holt, who was one of the counsel who argued the cause on the part of the plaintiff) said that the declaration was drawn by one of the best special pleaders of the time. The judgment of the court, in favour of the plaintiff) was delivered by Sir Matthew Hale, who declared that the master was liable, in consequence of the "reward which he or the owners received as freight, and that he was liable as a common carrier, for it was admitted that there was not the least negligence. Though the goods were lost by robbery on board the vessel in the river Thames, before the voyage had commenced, yet the court did not proceed on the ground that the master was responsible under one law, in port, and under another, at sea. The court said, the case was to be decided by the rules of the common law, and not of the admiralty law, and that there was no difference between this case and that of a common carrier. If the master ' be chargeable as a common carrier, for goods received to be transported beyond sea, it would seem to be very extraordinary and idle for the law to regard him in that character only from the time that the goods were received on board, until he had put to sea, and to regard him when coming from abroad, as common carrier only from the time that he entered within the jurisdiction of the port. There is no colour of such a limitation of the rule. The character, duty and responsibility of a carrier continue to attach to the master, as long as he has charge of the goods. Molloy, who was counsel with Holt in the above cause, cites the above case (b. 2. c. 2. s. 2.) to prove that, by the common law, the master is answerable “ if the goods be lost or purloined, or sustain any damage, hurt or loss, whether in the haven or port before, or upon the seas after, she is on her voyage.” If there be any exception as to this responsibility at sea, it proceeds from the special provision in the charter-party, or bill of lading, and not from any suspension of the [9]*9rule. The exception of the perils of the sea is not to be found in the forms of a charter-party, or bill of lading, as given by West under Elizabeth; (West’s Symb. part 1. s. 655, 656. 659.) but we find it afterwards in the charter-party in the time of Charles I. (Pickering v. Barkley, Sty. 132.) and the exception has lately been extended to almost every kind of accident. (Abbott, part 3. c. 2. s. 8.) There is, likewise, a recent British statute (26 Geo. III.) restraining the general responsibility of shipowners.. These exceptions are strong evidence of the acknowledged law which rendered them necessary. In short, it must be regarded as a settled point in the English law, that masters and owners of vessels are liable in port, and at sea, and abroad, to the whole extent of inland carriers, except so far as they are exempted by the exceptions in the contract of charter-party, or bill of lading, or by statute. (Rich v. Kneeland, Cro. Jac. 330. Goff v. Clinkard, 1 Wils. 282. note. Smith v. Shepherd, cited in 2 Com. on Cont. 323. Buller v. Fisher, 3 Esp. N. P. 67. Bever v. Tomlinson, East, 36. Geo. III. cited in Abbott, part 3, c. 4. s. 4.)
It would be of no avail, if the counsel for the defendants could succeed in taking this case out of the operation of the custom of the realm, and placing it under the marine law. That law is essentially the same, and holds an equally strict control over the master; and upon the same principle of public policy, a master of a vessel, or common carrier, by the almost universal law of nations, as well as by the common law of England, is chargeable for all losses not arising from inevitable accident. If, therefore, according to Roccus, a theft be committed on board, the master is answerable like an innkeeper, though the loss happen without his fault. So if the ship strike on a shoal, unless it be by the violence of winds or storms, he is liable, because he did not provide against an accident which a careful navigator would have foreseen. . So he is liable if he does not conduct the voyage with a due regard to the circumstances of the ship, time and place, and the practice of skilful navigators. (Roccus, n. 40. 55, 56.) Emerigon (tom. 1.373. 377.) says, it is so difficult to discover the faults of a master of a vessel, that he is held responsible for very slight negligence. He is in fault, if he has not foreseen what he ought to have foreseen, with due diligence. la short, he says, the master, in consequence of his compensation, is answerable for all damage which the cargo receives, unless it proceeds from an ec« [10]*10cident which he could not foresee or prevent. Valin declares expressly, (tom. 2. 394.) that nothing but the cas fortuit will excuse the master of a ship from responsibility for a loss. The rule applies, in the French code, equally to carriers by land and by water. We must, therefore, conclude, that there is nothing peculiar on this subject in what is termed, in the English law, the'custom of the realm; for the marine law lays down the rule against carriers with essentially the same strictness or severity of sanction.
The civil law, the source, in this instance, of the marine law, was equally guarded, and placed masters of vessels and innkeepers tinder the like responsibility. They were held liable, under an edict of the Prcctor, for every loss happening without their fault, that did not happen damnofatali, or, as Voet expresses it in his Commentaries, excepto eo solo, quod damnofatali aut vimajore, veluti naufragio aut piratarum injuria, perisse constat; and he says that, except as to the penalty, the rigour of the rule continues to this day in the Dutch jurisprudence. (Dig. 4. 9. s. 1. and 3. Dig. 47. 5. s. 1. and 3. Voet’s Commentaries, h. t.) The reason given in the civil law, for the rule, is, that it was necessary to confide largely in the honesty of these people, and to give great opportunities to commit frauds which it would be impossible to trace. And this strict rule has no doubt been as generally adopted, and as widely diffused, as the Roman law. Erskine (Institutes, 452. pl. 28, 29.) says, that the edict of the Prcctor is, with some variations, adopted into the law of Scotland. Indeed, we find the rule stated in precisely the same terms, in the ancient usages of a country into which we do not know that the Roman law ever penetrated. “ If a load be damaged by a carrier’s fault, whatever is lost he shall be compelled to make good, unless the injury happen by the act of God, or of the king, and whatever does not so happen denotes a fault.” (Colebrooke’s Digest of Hindu law, vol. 2. 372. 374.)
The courts in this country have always considered masters of vessels liable as common carriers, in respect to foreign as well as internal voyages. In M‘Clure v. Hammond, (1 Bay’s Rep. 99.) the defendant undertook to bring a quantity of tobacco for the plaintiff, from Augusta, in Georgia, to Charleston, and the vessel was driven ashore on the coast, during the voyage; and as the loss did not appear to have arisen from inevitable accident, he was held liable as a common carrier. So in Bell v. Reed and another, (4 Binn. Rep. 127.) the defendants were considered liable as com[11]*11mon carriers, for goods lost on a voyage from Fort Erie, in Upper Canada, to Pennsylvania, though the loss happened on the Car nadian shore. It was a conceded point that the common law doctrine applied to the case. The cases decided in this court, of Schieffelin v. Harvey, (6 Johns. Rep. 170.) and of Watkinson v. Laughton, (8 Johns. Rep. 213.) have proceeded upon the principle, that the master of a ship is liable as a common carrier, for an embezzlement happening in the course of a foreign voyage.
2. There was not any act done or new contract between the parties at Ogdensburgh, which prevented the application of this •rule. The only circumstance that occurred there, was a reluctance expressed by Captain Prosser to load the scow" to the extent that the plaintiffs wished, and a reluctance in the defendants to carry ashes to Montreal, at so late a time in the year. But still the undertaking went on, without any new contract, or. any understanding whatever between the parties, to vary or.lessen the general nature or effect of the engagement.
3. The only real point in the case was a question’of fact submitted to the jury, viz. whether the loss of the scow was to be attributed to that inevitable necessity, not arising from the intervention of man, which human prudence could not have avoided, and which is considered in law as the act of God. There was contradictory testimony upon this point, but we think, with the judge who tried the cause, that the weight of evidence was in favour of the conclusion drawn by the jury, and that the loss did not arise from any sudden gust of wind; but from the want of due care and skill in steering the boat down a well known and dangerous rapid. The dangers of such a rapid were at the risk of the common carrier, as much as the dangers of a broken and precipitous road. The loss must have arisen from some extraordinary occurrence, as winds, storms, lightnings, &c. to bring the carrier within the exception.
Per totam Curiam.
Motion denied.