#### BONER & CRIST *vs.*MERCHANT’S STEAMBOAT COMPANY.

’The rule of law, that common carriers are bound as ensurers for the sars • delivery of goods, does not extend to the time of delivery.

(¡The case of Harrell v. Owens, 1 Dev. and Bat. 273, commented on.)

This was an action of assumpsit against the defendants as common carriers upon the Cape Fear River, for failing to deliver goods : tried at Spring Term, 1858, of Forsythe' ■Superior Court, his Honor Judge Settle presiding.

It was proven, on behalf of the plaintiffs, that the goods in question were taken on board the defendants’ boat at Wilmington, on the 26th of September, and on the 2d of October, 1850’, and that the cargo put on board on the 26th of September did not arrive at Fayetteville until the 14th of October, and that the cargo received by the defen*212dants..on tbe 2d.of October did not arrive at tbat.plaee un-.tiffhe 11th or ,12th of November, 1850. The following advertisement was proved to have been published by the defendants, in the Fayetteville Observer, and to have been continued in that-paper daring the year 1850 :

“•Merchant’s Steamboat 'Company, Fayetteville and Wilmington,

“ Steamer Rowan.

« *u Yfxa.*R. Meares.

Lighter, Odd Fellow.

*“ ■“ Mike Oronly.

*" .a*JBen Berry.

“■ -Ready Money.

■‘"This line of Boats is still in successful operation on the ■Cape Fear River, and-continues to offer as many facilities to the shipping public as .any other line. Persons patron-ising this line may rest assured that ¡their goods will be-brought up with despatch,;and ,at the very lowest rates of .freight.

-■“From the number and ■construction.of their boats, this-company are perhaps prepared to bring more goods to the wharf than any other company. Packages should be marked, “Care of Merchant’s Company, Wilmington,” and to such agents in Fayetteville ms shippers -may prefer. AH packages not specially marked to an agent in Fayetteville, -will be promntly forwarded by the .agent of this -company, .•at the.usual rates.”

Signed by .the President Of theUompaaiy, and their agents at Fayetteville and Wilmington, and dated Feb. 19, 1850. To. which advertisement is added the following further notice-;

“ N. B. The agent at Fayetteville guarantees to shippers by the Merchant’s line, that but half rates shall be paid on drayage tp warehouses on the wharf.”

*213The defendants offered evidence tending to show, that, in the fall of 1850, there was an unusual drought, and that the water in the- Cape Fear River. was never known to be lower, except on. one occasion, 1845.

One witness testified that he, as agent for the defendants,, did business at the wharf at Fayetteville, and that the water was in a low state from the 'time the plaintiffs’ goods were taken on board at Wiltnington, to their delivery at Fayetteville; that goods were arriving at Fayetteville dw- ■ ring the whole month of October, carried by the defendants’ line, and by the proprietors of two other steamboat lines, in small quantities ; and that the defendants, during the month of October of that year, also brought goods to the wharf at Fayetteville. This witness and. another testified, that, in the latter part of October, they went down the-river, (there being a small rise in the same,) and found the Steamer Rowan, on which were the plaintiffs’ goods, at White Hall, the head of tide-water. Here the steamer was lightened, -and a. portion of the cargo, including some of the plaintiffs’ goods, put on board the Odd Fellow, whence they were brought to Elizabeth, and. stopped by a shoal in the river, and-tied'up to the shore. When they got down to Elizabeth, they found the boat in the care of the fireman, the captain having gone on a.trip to Wilmington, which occupied about one day;— that the Rowan did not have more than her usual load; that there were several more shoals in the Cape Fear between Elizabeth and Fayetteville, among which were the Spring Hill Shoals, three miles below Fayetteville, on which the depth of water, during the latter part of October,, was some six or eight inches; that the defendants kept their boat, the Ready Money, constantly running from the steamer and Odd Fellow to the town of Fayetteville, taking up goods; that the Ready Money was a boat of three or four tons burthen, and drew eight inches of water; that, in the latter part of October, the defendants hired an additional *214number of hands, above the ordinary crew, and put them on board the lighters, at an additional expense, and that they got their lighters over the shoals by fastening ropes to them and drawing them up with a windlass, 'while some of the hands waded in the river, and prized them forward with poles. This witness further testified, that, when the swell commenced in the river, as above mentioned, the agent of defendants immediately despatched a messenger by land, and another by the river, to apprise the captain of the steamer of the swell; and that the messenger on the river met the Mike Cronly and the Ben Berry polling up the river with goods on board; that the agent of the Merchant’s Company went down to Elizabeth, at the same time, and an effort was made, from 10 o’clock in the forenoon till 9 at night, to get the Odd Fellow over the shoal, which was unsuccessful; that the Merchant’s^ Company brought up as many goods daring the dry season as any other company, except the Cape Fear Company, who had put a small steamer on the river called the Chatham, which drew less water than any boat that had ever been on the Cape Fear Biver. This was used as a tow-boat, and regularly plied between Fayetteville and the Governor Graham, which was likewise tied up at Elizabeth,; by this means, this company had succeeded in getting up more goods than the defendants. That the plaintiffs’ goods were purchased in Philadelphia, and consigned to the Merchant’s Company before the Chatham was put upon the river. This witness testified, that many of the merchants .of Fayetteville sent wagons to White Hall that fall, and had their goods hauled from the steamer.

The witnesses also stated, on cross examination, that, had these goods been placed on one of the company’s lighters, they might have been brought up, as these could make trips with three or four tons.

Witnesses on behalf of the plaintiffs also swore, that,#during the whole month of October, goods were brought every *215week by other steamboat companies. One witness testified that be bad received goods, during tbe period in question, from Philadelphia and New York, by the Henrietta Steamboat Company, in ten or fifteen days from tbe time he left Fayetteville; that be had consigned a portion of bis goods to tbe defendants, which he did not receive until the 12th of November.

His Honor instructed the jury, that nothing but the act of God, or the public enemies of the country, would excuse the defendants in their delay. He illustrated, that the freezing up of the rivers, so that boats could not run, was an act of God, and would excuse: so would a drought, rendering it impossible to navigate the river-; but alow state of water, rendering the navigation difficult and expensive, would not, of itself, be a legal excuse. That, if the jury believed that steamboats could come to White Hall, and the defendants could, by means of their lighters, and other lighters that might have been procured, have brought the plaintiffs’ goods to Fayetteville within a reasonable time, and failed to do so, they were responsible.

The Court further instructed the jury, that, if they believed, from the evidence, that the defendants were prevented from carrying the plaintiff’s goods from Wilmington to Fayetteville, in a reasonable time, by reason of taking on board of their steamers añore goods of others than they had the means of conveying, they would be liable.

Yerdict for the plaintiffs. Motion for a *venire de novo*refused. Judgment for plaintiffs, and appeal to the Supreme Court by the defendants.

*Miller,*for plaintiffs.

*Winston,*for defendants.

Pearson, J.

His Honor instructed the Jury, that nothing but the act of God, or the public enemies of the eoun-*216try,- would excuse the delay of the defendants. To this the defendants excepted.- There is error.

Lord Holt deserved well of his country when he relieved5 the doctrine of bailment from the burthen of learning under which it was suffering, and reduced it to three plain propositions :

• 1st. A bailment for the benefit of the bailor alone, where ■ the bailee is only liable for gross *neglect; e. g.*where one • requests another to carry a package for him as a favor.

2d. A bailment for the benefit of the bailee alone, where-the bailee is liable for slight neglect; *e. g.-*where one bor--rows an article.

3d. A bailment-for the benefit of both parties-, in which-case the bailee is liable for ordinary neglect; *e.- g.*where one undertakes to convey goods for hire.

• Our case falls within the third divisen, The bailment was ’for the benefit of botli parties: one was to have his goods carried; the other was to have his pay for freight; and unless there be something to take it out of the rules, the defendant is liable for ordinary neglect.

It is said that the defendants are common carriers, andS in regard to them, the law makes an exception, and holds them ■ liable as insurers, except against the act of God, and the King’s enemies. This is so: and the question is, does then-liability as insurers extend to the *time*of dfelivery ? or is it confined to the *safe delivery*of the goods ? The case before the Court, when Lord Holt delivered'his famous opin--ion,- concerned the *safe delivery*of goods, and nothing was said in regard to the *time*of delivery: so that our question was left open. The reason for making an exception in regard to the safe delivery of goods, in the case of a common carrier, is, that it was a matter of public policy, in order to guard against fraud and conspiracy, by which, through “ co-vin and collusion,” the carrier might “ contrive to be robbed and divide the spoils.” It is evident that the reason for *217bolding the common carrier liable for the *safe delivery*of goods, has no relevancy or bearing upon the question- of his liability as to the *time*of delivery: so-there is no rule of policy making an exception in regard to the time of delivery. That falls under the general rule-by which, when; both parties are benefittedj the bailee is- liable for ordinary neglect. Parsons v. Hardy, 14 Wend. 216. So it is held,, that the rule of public policy by which a common carrier is made liable as an insurer, for the safe delivery of goods,does not extend to the case of conveying persons by land or' water :for, in regard to them, there is no reason to fear “ covin- or collusion.” So the reason of tlio rule fails, as it does in regard to- the time of delivery.

In the argument, our attention! was called' to the case of Harrell v. Owens, 1 Dev. and Bat. 273. We fully concur with the decision in that case but the learned Judge, who delivered the opinion of the Court, went out of his wayr and, for the sake of illustration, assumed that the rule that common carriers are insurers extended to the time of the-delivery. The case before the Court was one of gross neglect : the defendant excuses himself by saying, he did not know the place at which he was to- deliver the articles; yet the written agreement, signed by him, named “ Mount Pleasant Fishery” as the place of delivery. Of course, it was for him to find out where Mount Pleasant Fishery was-located, inasmuch as he had undertaken to deliver the goods at that place.

Our opinion is, that, if'there is a special contract, it must be complied with - as, if one undertakes, for certain pay, to pass goods from place to place in 24 hours.- But if there be no special contract, then the matter rests upon the general rule of law, where the bailment is for the benefit of both-parties, and the bailee is liable for ordinary neglect. How this-was according to the evidence, we are not at liberty to say-

*Venire de*novo. Judgment reversed-