Opinion
(June Term, 1841.)
1. Where the owner of a vessel agreed to hire her to another for a period and at a certain price, and stipulated at the same time that she should be "furnished with sufficient cables, anchors, and other tackling." and the vessel was lost before the expiration of that period, in consequence of a defect in one of her cables: it was Held, that the owner could not recover the hire for the whole period, under the special contract, although it appeared that the defect in the cable (an iron cable) could not have been discovered by the most attentive examination.
2. Such a stipulation means that the "cables, etc.," are actually sufficient, and not merely that they are apparently so.
ACTION on the case, tried at Spring Term, 1840, of HERTFORD, before Pearson, J. The plaintiff declared (1) on a special contract; (2) for the use of the vessel, from 20 March to 8 April, 1838, and for bacon and meal furnished to the defendant. As to the second count, the defendant admitted that he was bound to pay for the use of the vessel and for the bacon and meal. The controversy was as to the first count. The (546) plaintiff proved that the defendants had agreed to give her testator at the rate of $95 per month during the fishing season, which continues about two months, for the use of the schooner Thomas H. Blount, to tend upon their fishery on the north side of Albemarle Sound. It also appeared in evidence that, in making the bargain, the defendants told the plaintiff's testator that the fishery was in an exposed part of the sound, and it was necessary for a vessel to have good anchors and cables to hold on. The plaintiff's testator replied that his vessel was furnished with an excellent iron cable, which had held her two days in a storm, and, he believed, was sufficient to hold her until she foundered. Thereupon they agreed, the defendants to pay the price as above stated, and the plaintiff's testator to have the vessel at the defendants' fishery on 20 March, 1838, properly manned and furnished with sufficient cable, anchors, and other tackling. Accordingly, the vessel was at the defendants' fishery at the time agreed on, manned by a captain and two hands, which number was admitted to be sufficient, and furnished with the iron cable spoken of, two anchors, a small cable, and other tackling, and was engaged in the employment of the defendants until 8 April, when, being moored off the fishery, riding on both anchors, for the purpose of taking in a cargo of fish, the wind blowing tolerably hard from the southwest, but not so as to amount to a storm or even a severe gale, and the water not being too rough to stop the fishing operations; the captain, who had been ashore by the defendants' directions, telling fish into a boat to load with, and one of the hands being also on shore, cutting fish at the defendant's fishery, went on board to get breakfast, when he discovered that the main cable, to wit, the iron one, had parted; he instantly went ashore and informed the defendants of it. They told him to go to a neighboring fishery to get a drag, to fish up his anchor. He did so, and returned in about half an hour. As he was coming back he discovered that the small cable had given way from the vessel's turning, and, in a short time, before any assistance could get to her, she was driven near the shore and grounded. During that day and the whole of the next, defendants, aided by the captain and his hands and the (547) fishing hands and others, endeavored to get her off, but without success. Whereupon, as she lay in the defendants' fishing ground, so as to prevent the hauling of the seine, they set fire to her and burnt her up. The witnesses agreed in saying that the iron cable was, to all appearances, a sufficient one; it was not worn nor rusted, but was in good order and bright. They supposed the accident had occurred by one of the links of the chain, in consequence of the vessel's plunging, being turned or "kinked," so far as to make the strain on the side of the link instead of lengthways. They also stated that seamen differed as to the merit of hemp and iron cables. Some preferred iron, because hemp would cut out if the ground was rocky; others preferred hemp, because although iron cables would not cut out on the bottom, yet being made of cast-iron and the links being liable to be turned wrong by the motion of the vessel, what were considered the best of cables, that had stood out many a storm, would sometimes give way in consequence of a rotten place or flaw in a link that happened to be turned, which flaw could not be discovered by a previous examination. One of the witnesses stated that he examined the broken line of this cable and discovered a considerable rotten place or flaw. The captain stated that, until the cable parted, he had believed it entirely sufficient; that he had used this cable for some time, and thought it a first-rate one; that it had stood out many gales, when the wind blew three times as hard as it did when the cable parted; and particularly that it had stood for two days during a violent storm in December preceding.
The defendants' counsel insisted that as the plaintiff's testator had undertaken to furnish a sufficient cable, and the cable furnished did not prove to be sufficient, he was not entitled to recover; that his undertaking amounted to a warranty, and it made no difference, even supposing the defect to be unknown to the plaintiff and of such a character as could not have been detected by the strictest examination. The plaintiff's counsel contended that the undertaking did not amount to a warranty against all accidents and contingencies, and was substantially complied with if the cable furnished was to all appearances sufficient, and the plaintiff had no reason to believe or suspect that it was (548) insufficient.
The court charged that if a man hired a negro or rented a house for one year, and the negro died or ran away, or the house was destroyed by fire or tempest, during the year, the owner was entitled to the price agreed on, unless the loss had occurred by his default or omission; that in this case the defendants alleged they had lost the use of the vessel by the default of the plaintiff in not furnishing a sufficient cable. This being a parol agreement, it was the duty of the jury to ascertain from the evidence the terms of the contract, and it was then the duty of the court to instruct the jury as to the import and legal effect of the words used. If the words were, "the plaintiff agrees to have the vessel at the fishery at a given time, properly manned and furnished with sufficient cables, anchors, and other tackling," the law would consider the words as used in their ordinary acceptation; and the undertaking would be substantially complied with if this cable (for there was no controversy as to the other items), at the time the vessel went into the defendants' employment, was sufficient, that is, if to all appearances, in size, condition, etc., it was a cable that would be called and considered sufficient for the vessel, and there was no defect that an ordinary man could detect on examination; that the undertaking did not in law amount to a warranty that the cable should prove sufficient under all circumstances; and the question was this, Was the cable sufficient? If not, the defendants were entitled to a verdict; if it was, and the parting of the cable happened by reason of a link's being twisted, and the strain being thence on a place that was rotten or had a flaw, and the rotten place or flaw was a latent defect incident to iron cables, from the nature of the materials out of which they were made not discernible by examination, and the plaintiff had no knowledge of this defect, but believed from previous trials that the cable was as good as it appeared to be, the plaintiff would be entitled to recover; or if the jury believed that the cable was sufficient and free of all defect at the time it was furnished and went into the defendants' service, and that the parting of the cable must have happened by reason of the links that gave way having, while in the (549) defendants' service, been strained or weakened by some accident, and that the injury could not be discovered by the examination of an ordinarily prudent man before the parting took place, the plaintiff would still be entitled to a verdict.
There was no evidence, nor was it contended by the defendants, that the captain had been guilty of neglect in not properly examining the cable, and the court observed to the jury that, unless requested, he would not confuse the case by examining how far the defendants were justified, under the circumstances, by their right of fishing, in burning the vessel, or whether the captain and hands were under the control of the plaintiff's testator or the defendants.
There was a verdict for the plaintiff on the special contract for the price agreed on. A motion for a new trial for error in his charge was overruled, judgment rendered for the plaintiff, and the defendants appealed.
Iredell for plaintiff.
Kinney and A. Moore for defendants.
There is to be a loss of the wages of the vessel for the period between the day of the wreck and the end of the fishing season; and the question is, on which of these parties it ought to fall. That depends on the legal import and obligations of the stipulation of the plaintiff's testator. In the present state of the case it is to be assumed that his agreement was to let the vessel to the defendants during the fishing season at $95 per month, and to have her at the fishery on a day designated, properly manned and "furnished with sufficient cables, anchors, and other tackling." His Honor thought this like a contract for hiring a slave or a house, under which the hirer must pay the hire, though the slave die or the house be burnt. And he was further of opinion that the agreement was satisfied, although there was a defect in the cable, provided it was latent, so that the plaintiff did not know it, and could not, by such an examination as a man of ordinary prudence would make, have discovered it, but really believed, from its appearance, that it was sound and good. From that opinion, we own, ours differs.
The opinion of this Court is, although this contract is not a warranty "that the cable should prove sufficient under all (550) circumstances," yet that it is an undertaking and warranty that, at the time the vessel went into the defendants' employment, it was furnished with cables proper and sufficient for all the ordinary perils of navigation while attending on a fishery on the north side of Albemarle Sound; in other words, adequate to all emergencies except the acts of God or accidents inevitable by the foresight and diligence of man. The agreement, as ascertained here, is to receive the same construction as if drawn up in a regular charter party. We believe the law is settled that when the owner of a vessel charter her or puts her up for freight, it is his duty to see that she is tight and staunch, and properly furnished with tackle and apparel, and in a suitable condition for the service, and to keep her in that condition unless prevented by the perils of the sea. Here there was no such peril encountered, no storm, nothing but ordinary weather, which did not interrupt the laying out of the seine; and the cable parted by reason of a defect which existed at the time of the contract, but was unknown to the plaintiff's testator. But his innocence does not entitle him to recover wages that were never earned. Abbott on Shipping, 218, lays it down that if the merchant suffer loss by reason of any insufficiency of the vessel or her furniture at the outset of the voyage, he will be entitled to a recompense. He cites an opinion of Pothier, that, if the ship has been surveyed and reported sufficient, the owner ought not to be answerable for damages occasioned by a defect which he did not nor could not know. But even Pothier agrees that, in such a case, the owner must lose his freight. Upon these opinions Abbott comments, stating his own to be that in the English law the owner is liable to damages on his covenant, and also to the loss of freight money. His reasons are that defects in the body of a ship — and much more in her furniture — cannot exist unless occasioned by the age or particular employment of the ship, or some accidental disaster that may have happened to it, all of which ought to be known to the owner, and ought to lead to an examination of the interior as well as (551) the exterior parts. "And, indeed," says he (p. 220), "this contract, although greatly partaking of the nature of the contract of letting to hire, is not precisely the same, but includes in itself a warranty beyond that which is contained in a contract for letting to hire." He proceeds then to state that warranty and its effect in the following language: "In a charter party the person who lets the ship covenants that it is tight, staunch, and sufficient; if it is not so, the terms of the covenant are not complied with, and the ignorance of a covenantor can never excuse him." He then illustrates his position by citing Lord Holt's distinction in Coggs v. Barnard, between the contract for the carriage of goods and that of letting to hire; where he says: "The law charges the person" (the master of a ship, among others) "intrusted to carry goods, against all events but the acts of God and the King's enemies; so that a common carrier is an insurer against all perils or losses not within that exception."
This has also been considered as undoubted law in this State, and applied to the case of a vessel performing a voyage at sea. 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. Much more clear must it be that wages cannot be recovered which the vessel never earned and did not earn for want of seaworthiness. That the law wisely holds this doctrine will be more apparent from considering the consequences of a contrary rule. The owner, for example, may know of many defects, of which other persons are ignorant, and of which the scienter cannot be brought home to him. As Abbott says, he ought to know all the defects of his own vessel. The interests risked on her are of too much value to excuse the want of either diligence or skill in examining into her condition; and to avoid the evils that might arise from the negligence of the owner in that respect, the law must infer a stipulation by him that the condition of the vessel is suitable to (552) the service. Let it not be said that the shipper may also examine for himself. Such a requirement would break up trade. When one wishes to hire a servant or a house, each person is the best judge of what will suit him, and one person has nearly the same opportunity and competency with another for inquiry and examination. But it is otherwise with respect to ships. Indeed, a vessel is often chartered for a voyage, when she is at sea or in a distant port; and therefore the merchant has no opportunity for inspection. But if it was present, few persons have the knowledge requisite to detect its defects; and it would thus become necessary for every shipper to be at the trouble and expense of a regular survey by a professional person, or be obliged to put up with the representation of the ship-owner, on which he would be liable only on a deceitful affirmation or concealment, of which satisfactory proof is scarcely possible. As one party or the other must run the risk of a defect in the ship, it is not therefore difficult to say on which, in point of policy and for the furtherance of fair dealing, the law ought to impose it as a part of the contract implied in chartering a vessel. But when, as here, the agreement is express that the vessel and her findings are sufficient, it can be held to mean no less than that they are actually sufficient, and not merely that they are apparently so. If this vessel had outlived the accident of losing her cables and anchors, it is clear the owner would have been bound to supply others within a reasonable time. Indeed, the law implies an agreement on the part of the owner to keep the vessel in repair, without any express stipulation to that effect. Ripley v. Scaife, 5 Barn. Cres., 167; Putnam v. Wood, 3 Mass. 481. This shows that this is not a mere contract for hiring; since, if it were, the charterer would be obliged to supply the parts that gave way, or lose the use of the vessel for the residue of the term. But even if a vessel be sufficient at the commencement of a voyage, but, as here, be lost in the course of it, the owner, though not liable indeed to freighter for damages, loses his freight money. Kimball v. Tucker, 10 Mass. 192. At all events, all beyond freight pro rata itineris peracti. As to that, there is no dispute in this case, for the defendant submitted to a verdict for the wages for the time the vessel lived. (553)
PER CURIAM New trial.