Fergusson v. Brent

Le Grand, C. J., delivered the opinion of this court. This action was brought to recover damages for the injury which certain articles of property, belonging to the appellee, sustained, while on board the vessel of the appellants, on which they had been placed, for transportation from Baltimore — 30 — city to Charles county, in this State. The appellants were common carriers, and, as such, received the goods of the appellee for transportation. The plaintiff proved the shipment, the amount of damage, and that on the day the vessel left the port of Baltimore, the weather, in the opinion of his witnesses, who testified to its character, was such that the captain ought not to have sailed. The defendants gave evidence to show that the weather was misty at the time when the vessel sailed, and that, during the day, a heavy fog arose, which induced the captain to make for North Point harbor; that in this harbor there were many vessels; that in approaching it, he was at the helm, with a look-out, who, as the vessel neared the entrance, notified him there was a buoy, whereupon he bore away, and struck upon a sunken rock, about thirty yards from the buoy, and there sinking the vessel, which occasioned the damage complained of. There was evidence, by different witnesses, showing there were other harbors nearer to the vessel, when she was put in the direction of North Point harbor, than that one, and, also, that the sunken rock was unknown to persons who had navigated the Patapsco river; and, also, that at low mark, the ripple of the water would enable a person standing on the deck to discover its locality. This, in substance, was the evidence in the cause, and, on it, the defendants asked the instructions of the court in the manner detailed in their prayers, but the court refused so to instruct the jury. Before adverting to the language of these prayers, and to the instructions given by the court, we shall, as plainly as we can, point out the liability which a common carrier is under, for, on its ascertainment depends the propriety of the action of the Circuit Court in the premises. There is no evidence in the record of á bill of lading, and, therefore, the responsibility of the appellants depends upon the law as applicable to common carriers, strictly as such. There is a distinction in the law as applicable to private and common carriers. What we have to deal with in this case is, the law governing the liabilities of common carriers. The cases in which this question has been considered, both — 31 — in this country and in England, are almost without number; the leading ones being very fully commented upon in subsequent cases, and by all the approved commentators on the law of shipping. And it is agreed, on all hands, that nothing will relieve the common carrier but an act of God, or the public enemies; or that which arises from some event expressly provided for in the charter-party. It is difficult exactly to define, in all cases, what is an act of God. “By the act of God, is meant a natural necessity, which could not have been occasioned by the intervention of man, but proceeds from physical causes alone; such as the violence of the winds or seas, lightning, or other natural accident;” per Ld. Mansfield, in Forward vs. Pittard, 1 Term Rep., 27. 2 Greenlf. on Ev., sec. 219. This definition is about as accurate and specific as, perhaps, any that could be given. It excludes all circumstances produced by human agency, so that if divers causes concur in the loss, the act of God being one, but not the proximate cause, it does not discharge the carrier. To relieve him, the act of God must be the immediate cause of the loss, and without which it would not have occurred. This is the law (in the absence of a contract to the contrary) applicable to common carriers; private carriers will be discharged by proof of loss by inevitable accident; but with this distinction we have nothing to do in this case, because here the defendants were common, and not private, carriers; besides which, there is no special contract exempting them from the operation of the general doctrine, which is rigorous, to the greatest degree, in its exactions upon the carrier. We, as a judicial tribunal, have nothing to do with its policy; our duty is to enforce it. We are, however, fully satisfied it is founded in good sense, and approved by the concurring experience of maritime nations. In the case before the court, the exemption from liability can only be claimed, from the evidence, on the following grounds: 1st. That it was prudent and proper the vessel should have retired to North Point harbor. 2nd. That, in entering the mouth of that harbor, all care and skill possible were employed, by the master and crew, to guard against injury. And 3rd. That the rock on which the vessel was — 32 — thrown, was concealed and unknown, so as to make the loss one occasioned by the act of God, or of inevitable accident. Unless these circumstances, if found by the jury, constitute a defence, then there was none. We have already said, that in the case of a common carrier, and in the absence of an agreement to the contrary, inevitable accident can have nothing to do with the case. The case of Williams, et al., vs. Grant, et al., 1 Conn., 487, if susceptible of the construction placed upon it by the counsel of the appellants, we have only to remark, that, with a single exception, the case in 2 Bailey, S. C. Rep., 421, it is opposed to all others of authority. But we think it can be reconciled with them. In the case in 1 Conn., the vessel, while on her passage, run against a rock, in Providence river, under a moderate breeze, in fair weather, and bilged, so that the salt on board was lost. The plaintiffs, the owners and shippers of the salt, proved the rock was well known, and that the vessel, when she run against it, was out of the usual course of navigation; and that there was no pilot on board, although it was usual to have one. The defendants, on their part, produced evidence to prove that the rock was not generally known. The court charged the j ury, that if they should find, from the evidence, that the rock was generally known, the loss would be imputable to the negligence of the defendants, and they must return a verdict for the plaintiffs; but if they should find it was not generally known, then the loss was occasioned by a peril of the sea, and their verdict must be for the defendants. The jury found a verdict for the defendants, and a new trial, on the part of the plaintiffs, was moved for. On the argument of this motion, which was granted, the court lay down — after asserting the broad doctrine to which we have referred, as governing this case — the principle controlling the one before them. Judge Swift, C. J., says: cTf the rock on which the vessel was struck, had been generally known, then it was the duty of the master to have known and avoided it, and the loss would be imputable to his negligence. If the situation of the rock was not generally known, and the master did not actually know it, then, if he conducted property in other respects, and no fault was imputable to him, his — 33 — striking on the rock would be an act of God, an unavoidable accident, and he would not be liable for the loss.” Judge Gould says: “It is very clear that a common carrier is liable, tinder a general acceptance, for all losses, except such as are occasioned by inevitable accident, the act of public enemies, or the act or default of the bailor himself.” Again: “By ‘dangers of the sea,’ are meant no other than inevitable perils, or accidents, upon that element; and, by such perils or accidents, common carriers are prima facie excused, whether there is any such express exception or not.” This last quotation from his opinion, is in relation to the words, “dangers of the sea,” contained in the bill of lading. It will be seen that both of the judges use the expression, “inevitable accident,” as synonymous with that of “act of God.” And, by affixing no other meaning to it, they assert no new principle, and, therefore, those opinions are to be read as though the words, “act of God,” had been used instead of those employed, to convey the same idea. It is true, that every “act of God” is an inevitable accident, because no human agency can resist it; but, because it is so, it does not, therefore, follow, in the sense of the books, that every inevitable accident is an act of God. Damage done by lightning is an inevitable accident, and also an act of God, but the collision of two vessels, in the dark, is an inevitable accident, but not an act of God, such as the stroke of lightning, nor is it so considered by the authorities. Whether Judge Gould be correct, or otherwise, in his definition of the words, “perils of the seas,” it is unimportant to inquire now, inasmuch as there is no bill cf lading in this case, containing these words. His interpretation of them, however, is in conflict with the opinions of others. See the very full and discriminating note on common carriers, by Hare and Wallace, to the case of Coggs vs. Bernard, 1 Smith’s Leading Cases, page 268, &c., edition of 1852, and particularly the case of McArthur & Hurlbert, vs. Sears, 21 Wend., 190. In Gordon vs. Buchanan, 5 Yerger, 72, 82, the act of God, it is said, “means disasters with which the agency of man has nothing to do, such as lightning, tempests, and the like.” “The perils of the sea” include some — 34 — thing more; “many disasters which would not come within the definition of the act of God, would fall within the exception. Such, for instance, as losses occasioned by hidden obstructions in the river, newly placed there, and of a character that human skill and foresight could not have discovered and avoided.” In the note referred to, will be found many cases wherein is clearly pointed out the difference between the words, “act of God,” and “perils of the sea.” In the case before us, the undisputed evidence was, that a buoy pointed out the locality of the rock, and that at low mark it could be seen by the ripple of the water over its surface. It is also proved, by the defendants, that several vessels were safely moored in the harbor, at the time of the loss. The fact that a buoy was placed to indicate the dangerous spot, is, in our judgment, sufficient to establish that the existence of the rock was “generally known,” and, in the language of Swift, C. J., in the case cited, “it was the duty of the master to have known and avoided it.’’ We can perceive of no more effectual mode of making proclamation of the course of channels, the location of bars, rocks, and other impediments to navigation, than buoys; they are the means employed by all commercial nations, for the protection of human life, and the safety of commerce. Having thus stated the law as ruling this case, we apply it to the prayers of the defendant, and to the instruction given by the court to the jury. The first prayer was properly rejected. It excuses the defendants, if the jury should find the loss was occasioned by inevitable accident, without fault on the part of the carrier, and which no human prudence could have enabled him to avoid, which we have shown, in the case of a common carrier, is insufficient. If it is not actus Dei, it cannot excuse. The second prayer is also defective in several particulars, but one of which need to be stated, namely, it Í3 unsustained by the evidence. There is no proof that the sunken rock was unknown to “pilots carrying on navigation upon the Patapsco river.” Captain Neale speaks of a period twenty-five years previously to the accident, and, in fact, shows, by his cross-examination, that he knew but little of the — 35 — navigation of the river. As to the hands on board, their testimony shows they knew nothing of the other and more convenient harbors; but, above all, the buoy gave, or ought to have given, knowledge of the rock to the master, and he should have avoided it. We think the court gave the proper instruction, which, upon the jury finding the necessary facts, excused the defendants, only, if the jury should further find “the loss or damage resulted from the direct and immediate act of God, without the intervention of any human agency.” (Decided June 2nd, 1858.) Judgment affirmed.