Emory v. . Credle

Hoke, J., after stating the case: There were facts in evidence tending to show that on or about 26 April to 1 May, 1922, plaintiff bought, in Norfolk, Ya., a lot of goods, of value of $165, and shipped same via Washington, N. C., to his home at Juniper Bay, Hyde County, N. C. That the bill of lading was given to T. M. Credle, who with an assistant was operating the gas boat “Clinton,” duly registered and licensed to do business as common carrier on the waters of Pamlico Sound and its tributaries. That said goods were taken on said boat under a bill of lading by said T. M. Credle, and at the time specified in going from Swan Quarter, where the boat had touched in due course of its voyage, the cargo and boat were destroyed by fire, except the engine, which T. M. Credle testifies was saved (value not given). There were also facts in evidence permitting the inference that the loss and destruction of the boat and goods were due to negligence on the part of the owners themselves, and there was also evidence to the effect that the fire and consequent loss of the boat was due to the negligence of the master and his assistant. On this opposing evidence, the court, among other things, and. on second issue, éharged the jury as follows: “If you answer the second issue ‘No,’ you need not answer the third issue, because, unless the damage done the plaintiff was due to the negligence or want of care on the part of the defendant, or employees of the defendants, then the defendants would not be liable in damages to the plaintiff. That is, if the plaintiff has failed to show by the greater weight of the evidence that want of care in the burning of the vessel was due to negligence on the part of the owners of the vessel, or some of the employees or agents of the owners who had control of the vessel, and you answer the second issue ‘No,’ you need not answer the third issue.” Defendants duly noted an exception. As more especially pertinent to the facts presented, the Federal legislation establishing limitations of liability on the part of owners of vessels operating as carriers both at sea and on the navigable inland waters of the State, makes provision as follows: “Sec. 4282, Revised Statutes, U. S. Loss by Fire. No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any merchandise whatsoever which shall be shipped, taken in, or put on board any such vessel, by reason *5 or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.” , , . And in sec. 4289, as amended and now appearing in 6th Federal Statutes Annotated, p. 367: “Limitations of Liability of Owners to Apply to All Vessels. The provisions of the seven preceding sections and of section 18 of an act entitled ‘An act to remove certain burdens on the American merchant marine and encourage the American foreign-carrying trade, and for other purposes,’ approved 26 June, 1884, relating to the limitations of the liability of the owners of vessels, shall apply to all sea-going vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters.” In construing these sections it has been held that the same applies to a boat of this kind, and in determining the question of the liability of the owners, the authoritative cases are to the effect that-the owners are not liable for the loss of the goods or injury thereto by any fire happening on board, unless from design on their part (an act of willfulness) or from a negligent breach of some duty incumbent upon them as owners, or in which they have personally participated, and that they may not be held for loss and injuries by fire due entirely to the negligence of the crew, master or seamen. Craig v. Continental Ins. Co., 141 U. S., 638; In re Garnett et al., 141 U. S., 1; Walker v. Transportation Co., 3 Wall., 140; The ................................, 228 Fed., 1006; The Anno., 47 Fed., 525, and see on subject, Brinson v. R. R., 169 N. C., 425; 6 Fed. Statutes Anno., p. 339. While the court in different places seems to restrict the jury to a consideration of the owners’ liability as set forth in the Federal statutes, the portion of the charge excepted to permits, if it does not require, the jury to hold the owners liable for the negligence of the crew, under the general doctrine of respondeat superior, and in which the said owners did not or may not have personally shared. For this error the defendants are entitled to a new trial, and it is so ordered. New trial.