Gilmore v. Carman

9 Miss. 279

• Court: Mississippi Supreme Court
• Decided: July 15, 1843
• Status: Published

Opinion

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendants in error brought this suit to recover the value of thirty-two bales of cotton, shipped to New Orleans, on the steamboat Ticks burg, which was consumed by fire on her downward trip; the plaintiffs in error being the owners of the boat.

There can be no doubt but what the owners of steamboats engaged in the carrying trade, on the navigable rivers, are to be regarded as common carriers. It is their business or calling, to transport merchandise and other articles, from one port to another, for a price or compensation. It appears that the boat on which the cotton was shipped, was engaged in carrying freight from Yicksburg to New Orleans and back, for compensation. In pursuing this as a general business for the accommodation of those having articles to ship, the owners became liable as common carriers, and so it has been held by numerous adjudications directly on this point. Allen v. Sewall, 2 Wend. 327. Orange Bank v. Brown, 3 Ib. 158. 13 Ib. 611. 11 Pick. R. 41.

Being common carriers, they are liable for all losses except those which have occurred by inevitable accident resulting from the act of God, or those which may have resulted from public enemies of the country. The owners are the insurers against all losses occasioned by accidents not within the exceptions of. law, or which are not excepted by special contract. This, although not the rule of the civil law, is hndoubtedly the rule of the common law, and it is now universally enforced in England, except in cases where it has been changed by act of parliament.

Some few of the States of this confederacy may have modified it by legislative enactment, but where no change has taken place, the common law prevails. Story on Bailments, 318, § 489. 3 Kent’s Com. 216, 3d ed. Harrington v. McShane, 2 Watts R. 443. Pattons admr. v. McGrath & Brooks, 1 Dudley’s R. 159. 5 Yerger, 71. This rule may seem rigorous, and yet it rests upon reasons sufficiently strong to afford, at least, a very plausible excuse for its adoption—reasons, too, which may be still urged with great force in favor of its utility. But as to its policy we have nothing to say. We received it as part of the common law, and the legislature has not thought proper to change it. Besides, it is easy to obviate the rigor of the law by inserting the proper exceptions in the bill of lading.

It is not necessary that we should enumerate all the accidents falling within the exceptions of this rule; it will be sufficient for our present purpose, to determine whether a loss by fire, constitutes one of them. * It would seem that what are called inev-' itable accidents, can only arise from natural causes, and such is generally the case, though there maybe a few exceptions. The criterion, it seems, is, that if it be such an accident as no human foresight or sagacity could have prevented, then the loss will be excused. 3 Kent, 215. In boats propelled by steam, it may be difficult to prevent conflagration, and no doubt is so; but, surely, such accidents cannot be said to be beyond the power of human skill and prudence. Steamboats are occasionally consum-t ed by fire, yet for the number of boats, the instances are fewj and when we consider the great danger to steamboats from that cause, and the great number liable to that danger, we must ascribe to human skill and prudence, a powerful agency in preventing a more frequent recurrence of such accidents. But on this branch of the subject, too, the books speak but one language. Chancellor Kent says, “A loss by lightning is within the exception of the act of God ; but a loss by fire, proceeding from any other cause, is chargeable upon the ship owner.” 3 Kent’s Com. 217. The same is the case where the vessel is propelled by steam. The case of Harrington v. Mc Shane, above cited, was to recover damages for a loss which was caused by the burning of a steamboat on the Ohio, and the owners were held responsible for the loss. The case of Pattons admr. v. Mc Grath Sf Brooks, was an action for the value of a quantity of cotton burned on board of a steamboat. It appeared that proper diligence had been used, but still the owners were held liable. There was also an attempt to defend the action on the ground that usage or custom exonerated the owners in such cases, where they had used proper diligence. The court held that no distinction could be taken between steamboats and other vessels; that all were alike liable in such a case; and that custom, to constitute an exception to the rule of law, must have been immemorial, certain, and reasonable. These decisions fully sustain the rule of the common law, to its full extent, in its application to steamboats, by placing them on the same footing, and entitled only to the same exceptions with other vessels, and we are not aware of any decision to the contrary, except in Louisiana, under the civil law.

Loss by fire, then, is not a loss by an inevitable accident^ which will protect the owners under the law. Are they protect., ed by the exceptions in the bill of lading? It may be true, that although the law will hold the owners liable for a loss, yet they may be exonerated by the exception in their contract. The exception in the bill of lading is in these words : “ the dangers of the river, only, excepted.” This exception does not seem to be sufficiently broad to cover any casualty which is not peculiar to the navigation of that river. It is like the exception in bills of lading given by vessels navigating the sea, in which “ the perils of the sea” are the words employed; by which natural accidents, peculiar to that element, are meant. Accidents which do not happen by the intervention of man, and whiph cannot be prevented by human prudence. 3 Kent’s Com. 216. This gen-'-, eral exception in a bill of lading, seems to mean very much the \ same things that are excepted by the law itself, being no other | than inevitable perils on that element, for which the owners j would be excused, even without a bill of lading. Story on. V Bailments, 330. But suppose the exception in the bill of lading4 is entitled to a more extended meaning, and that there are dangers in navigating the river, which fall properly within the exception, which would not be reached by the law, still we find nothing to justify us in saying that the danger of fire is one of that character. It -is not a danger which proceeds from, or is peculiar to the river. It arises from the means used in propelling the boat, and not from any obstacle or impediment in the river. The boat itself is the depository of the agent which produces its own destruction. If the owner chooses to employ this agent, he cannot, with propriety, say that it is productive of a danger incident to the navigation of the river. This is a danger produced by human agency; it may be counteracted by human sagacity and prudence. The vessel itself may be constructed so as to be free from danger; or if not, prudence, in keeping up a sufficient watch, affords a guaranty for safety. The arrangement of the cargo, with a view to its security, is also calculated to diminish danger. Hence we conclude that a loss by fire does not fall within the exception in the bill of lading. That all proper diligence was used, does not alter the case. A want of diligence might throw the loss on the owner, even in cases when the law would otherwise excuse him•, but the use of diligence does not excuse a common carrier. There is no condition in the law by which he shall be excused if proper diligence be used. He is excused by nothing but accidents resulting from the act of God, or the public enemies of the country, unless he has taken the precaution to protect himself by contract.

It is insisted in argument, that the judgment ought to be reversed, because interest was improperly allowed. This objection is’ met by the argument by which the court was authorized to enter judgment for a certain sum, which was the amount of principal and interest. The'court did enter judgment for the amount agreed on. It is also said that the defendants below are entitled to their freight out of the amount recovered. That is true, if it has not been paid; but they made no claim to it in the court below, and cannot urge it here as an error in the judgment.

Let the judgment be affirmed.