Summary
In Backhouse v. Sneed, 5 N.C. 173, the vessel was lost by reason of an internal and unknown defect in the rudder, which was apparently sound; yet the owner was obliged to make good the cargo to the shipper.
Summary of this case from Parker v. GilliamOpinion
July Term, 1808.
A, being the owner of a vessel "lately completely repaired," took on board for freight 270 bushels of corn. The rudder was broken by the sea, the vessel wrecked and the corn lost. The rudder presented and external appearance of soundness, but was internally rotten. And that fact not known to A. He is liable for the loss of the corn.
THE defendant sailed from the port of Wilmington to that of Topsail, both in this State, in a small schooner owned and commanded by himself and on a voyage for his own benefit, having on board property belonging to himself. At Topsail he was induced by request of plaintiff to proceed with his cargo to Swansborough, and to take on freight for the plaintiff 270 bushels of corn. Defendant sailed for Swansborough, but was compelled by stress of weather to put in at New River and to stay there two days. In going out, the rudder of the schooner was broken by the sea on the bar of New River Inlet; the vessel consequently went on shore, was wrecked and (174) her cargo lost. It appeared in evidence that the vessel had lately been completely repaired by a skillful workman; but the rudder, though presenting an external appearance of soundness, was internally rotten, and that the breaking of the rudder was owing to its rotten state. This defect of the rudder was not proved to have been known to defendant. No evidence was given nor was it pretended that defendant had ever before this occasion carried goods for freight.
J. Stanly for plaintiff.
W. Gaston for defendant.
From New Bern District.
The jury under charge of the court found a verdict in favor of the plaintiff for the value of the corn, and it is submitted to the Court upon this statement whether a new trial should not be awarded.
Whatever doubts formerly prevailed as to the extent of a carrier's responsibility, the law seems now to be well settled that he is liable for all losses except such as happen by the act of God or the enemies of the State. All accidents which can occur by the intervention of human means, however irresistible they may be, he is considered as insuring against. And this was held to be law, although the charge of negligence stated in the declaration was expressly negatived. Forward v. Pittard, 1 Term, 27. The principle of this liability seems to be the public employment which carriers exercise, so that persons induced to confide in them in the course of business may receive all possible security. Coggs v. Bernard, 2 Ld. Ray., 117.
A stronger case cannot well be put than of Dale v. Hale, 1 Wills, 281, in which it was holden to be no excuse that the ship was tight when the goods were placed on board, but that a rat by gnawing out the oakum had made a small hole, through which the water had gushed. Sir William Jones, in discussing (175) this subject in his Law of Bailments, seems to consider that the exception as to the act of God and public violence is in truth part of the rule, and that the responsibility for a loss by robbers is only an exception to it, founded on a maxim of policy and good government to prevent confederacies between carriers and robbers. He holds that a carrier is regularly liable for neglect, and that such is the true principle of the decision in Dale v. Hale, although it is not mentioned by the reporter. Lord Mansfield, in Forward v. Pittard, concurs in the opinion of Sir William Jones as far as it extends, but in addition to the negligence for which he is liable and may be sued on his contract, he holds that a carrier is in the nature of an insurer by the custom of the realm, that is, by the common law, so that his contract binds him to due care and diligence; and even with the best care and diligence, the common law, applied to the nature of his employment, renders him responsible for inevitable accidents, if not occasioned by the act of God.
Admitting, however, that a carrier was liable only to the extent of his contract, and that ordinary negligence must be proved against him in order to recover for a loss, it may be asked whether, if such negligence may be imputed in Dale v. Hale, the charge is not at least as well grounded in the present case. It certainly was as easy to guard against the defectiveness of the rudder by a proper examination as to prevent a hole being made in the bottom of the vessel in the other case, where the hold was charged with goods and the vessel pursuing her voyage. The declaration, however, in the case cited was founded on the contract and not on the custom, and the Chief Justice says that everything is negligence that the law does not excuse.
Judgment for the plaintiff.
Cited: Parker v. Gilliam, 23 N.C. 551.
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