Opinion
(January Term, 1817.)
1. The master of a vessel is liable upon a bill of lading signed by him, containing no other exception than that of the dangers of the sea, though the goods are damaged by the unskillfulness of the pilot.
2. The shipper may sue either the master or owner upon a bill of lading signed by the master.
3. Whether an action will lie for a tort against the master of a vessel for an injury done by the vessel, or to the goods while a pilot is on board, Quaere.
ASSUMPSIT, tried before SEAWELL, J., at CRAVEN, where a verdict, under the charge of the court, was found for the defendant. The facts were that a quantity of merchandise was shipped for the plaintiff at New York, to be delivered at New Bern, on board a vessel of which the defendant was captain. He signed a bill of lading in the usual form, containing no other exception than that of the dangers of the sea. The merchandise received damage on the voyage, and the court, (520) in its direction to the jury, stated to them that if the damage was occasioned by the unskillfulness of the pilot, after he came on board, the captain was not liable. A motion was made for a new trial, on the ground of misdirection, and the judge doubting the correctness of the opinion he had given, sent the case to this Court.
Gaston for defendant.
Badger for plaintiff.
The cause was argued at July Term, 1816, and the Court held it under advisement till this term.
The question presented by this record is whether the damage done to the plaintiff's goods was occasioned by any of those causes which, according to the general rules of law, or the contract of the parties in the particular case, afford an excuse for not carrying them in safety.
Though there is a common form of bills of lading in use, yet, like every other contract, it may be moulded according to the will of the parties by whom it is made; it may be framed without any exceptions, and then left to be construed by the general principles of law, or other exceptions than those usually inserted may be introduced, and thus the responsibility of the master or owner narrowed. In Smith v. Shepard, Abbot, 165, there was no bill of lading, and the decision was made on general principles, applicable to common carriers, that the act of God which would excuse the defendant must be immediate. Afterwards several exceptions were added to the form, and, besides natural accidents, many which proceed from the agency of men are now commonly provided against. But the parties in this case have thought proper to stipulate that only perils of the sea shall excuse the defendant for the nonperformance of his contract, and therefore it is clear that he undertakes, at all hazards, to indemnify the plaintiff against all other perils or losses. The unskillfulness of the pilot occasioned the loss; (524) and as that is not a peril of the sea, the plaintiff is entitled to recover.
I think it is equally clear that the plaintiff has his election to sue either the master or the owner upon a bill of lading. The law will not compel him to search for the owners and sue them; they may be in a foreign country, or it might be impossible to find. Morse v. Slue, Ventris, 190, 238.
But I am not prepared to say that the master would not be liable, even in an action founded on tort, for damage done to the goods while the pilot was on board. The inclination of my mind is rather that he would be liable. The opinion of the Court in Snell v. Rich seems to be founded on the circumstance that the master was not on board when the accident happened. In Berry v. Donaldson, 4 Dallas, 206, an action of tort was held to be maintainable against the owner of the vessel. And Molly, who writes exclusively on Maritime Law, says: "But if a ship shall miscarry coming up the river, under the charge of the pilot, it has been a question whether the master should answer in case of the insufficiency of the pilot, or whether the merchant may have his remedy against both. It hath been conceived that the merchant may hath his election to charge either; and if the master, then he must like himself whole of the pilot."
The action in this case is founded upon the contract of the defendant, who undertook to deliver the goods in question at the port of New Bern, dangers of the sea excepted. They have not been delivered; and it is admitted by the case that this default has not been occasioned by any peril of the sea, but through the unskillfulness of a pilot. Now, it may be asked, if the circumstance that the vessel was to be placed under the direction of a pilot was not at least known to the defendant. And whether, if he had thought proper, he could not have provided against a loss whilst in the hands of the pilot. It is, however, sufficient to say the defendant has not provided against it; and, being bound to insure against every accident or event not excepted, he must answer to the plaintiff for a nonperformance. Had the defendant been charged with a tort for some injury done by the vessel whilst under the control of the pilot, that case would have differed widely from the present. The defendant in (525) such case, not being the author of the mischief, neither continuing it nor having it in his power to avoid it, would not be liable; but should he, in such case, have become insurer against it, it would hardly be doubted but that he would be liable upon his engagement.
The directions to the jury below were clearly wrong, and the rule for a new trial should be absolute.
RUFFIN, J., concurred in the opinion of SEAWELL, J.
Cited: Wiswall v. Brinson, 32 N.C. 557.