#### Faulkner & Carns *v.*Wright, Coker & Tuttle. Williamson & Dunlap *v.*The Same. A. & W. Dunlap *v.*The Same. J. A. & W. Carns *v.*The Same.

These were several actions of assumpsit against the defendants, owners of the “ Steamer Atalanta,” for the value of certain goods shipped by the respective plaintiffs, and alleged to have been lost, on board the said steamer, plying on the Pedee River, between Georgetown and Cheraw. The defence set up was, that the- “ Atalanta ” sunk by running on a concealed and unknown snag, in the ordinary boat channel, when the river was fairly navigable for steamboats; and that the loss which followed was not in consequence of any want of prudence and diligence on the part of the master and owners. There was a great deal of testimony offered on both sides; by the deféndants to sustain, and by the plaintiffs to repel, the grounds of excuse set up: and in some respects, the evidence was conflicting and .contradictory. The plaintiffs insisted especially that the defendants had been guilty of negligence after the steamer struck and went down, in not rescuing the goods and forwarding them to their destination. Upon this part of the case, his honor, the presiding judge, charg'ed the jury — “ that the duties of the master and owners did not cease with the catastrophe which arrested and detained the boat, whereby the cargo became damaged ; but that they might be held liable for damages, arising from want of diligence and proper exertions towards saving and delivering the goods on board; and that the jury might re-' gard, as a proper standard of such diligence, such a line of conduct as a prudent man of intelligence would have observed in taking care of his own property, similarly situated.” The jury found for’the defendants, and a motion for new trial was refused. [Richardson, J., dissenting.]

The general principle is, that the master and owners of boats, on inland navigable rivers, like those of vessels at sea, are *common carriers;*that they are bailees for hire, and bound by the obligations of the law, to deliver goods placed on board their vessel at the place of their destination ; unless they are prevented from so doing, by the *act of God,*or *public enemies.*

The bill of lading is the usual evidence of the contract between the owners of the vessel and the freighters. It is a contract, signed by the master for the owners, and subjects them to all the liabilities incident to it. As soon as goods are taken on board, the' owners become insurers to a certain extent; and the only causes which will excuse them for the nondelivery of the goods must be events falling within the meaning of one *108of the expressions “the act of God,” and “public enemies,” unless the contract he specifically qualified and limited. The *perils*usually excepted, and for losses arising from which they are not liable, are those which do not happen by the intervention of man, nor are to be prevented by human prudence; and *losses*arising from them are such as happen in spite of human exertion. /,

It has been decided in this state, that a boat running on an *unknown*and concealed snag, in the regular boat channel of a navigable river, may fall within the excepted perils. [Smyrl v. Niolon, 2 Bail. Rep. 421.]

The most usual contest in cases of *wreck*is, whether the losses from it are to be attributable to the negligence of the master, or are to be regarded as resulting from inevitable accident. When the wreck is inevitable, and a total loss is the immediate consequence, there is little difficulty in applying the general principle of law. In such a case, the master would be absolved from all responsibility. When, however, the injury, in the first instance, happens from the act of God, as by the stranding of a vessel and, after some interval of time, a loss either partial or total, is the ultimate consequence, there is much greater difficulty in 'deciding on the rights and liabilities of the parties concerned. The conduct of the master or owner then becomes a subject "of im^prtant consideration. If they be guilty of negligence, they will be held answerable for all the damages which proceed from it. Their duty is, to use all the means within their power and control, to arrest and obviate the consequences of the disaster; and there is perhaps no better rule than that they should be bound to use such *care*and attention as a prudent man would have done in a similar situation, with regard to his own property.

Their duty is to deliver the goods as they were left by the wreck: if not in a sound, in their damaged state. What will excuse them must necessarily depend upon the circumstances peculiar to each case ; and, in a great measure, must be a matter of fact to be submitted to the jury. When all reasonable efforts fail to save the cargo, the ultimate loss may be fairly regarded as resulting from the *first*cause, as the *vis major;*upon the ground that when human exertions have failed to obviate its consequences, the “.act of God ” may still .be regarded as continuing its operation.

*Before BUTLER,*/., *at Chesterfield, Fall Term,*1838.

These were special actions of assumpsit, to make the defendants liable for the value of goods lost on board of their boat. The report of his honor, the presiding judge, is as follows: “ The plaintiffs had shipped from New-York, in the brig Frances Ann, goods to the value of sixteen or seventeen thousand dollars. They were -received at Georgetown, S. C. in good order, by their forwarding agent, *109Waterman, who had instructions to send them up the Pedee to Cheraw; from which place they were to be forwarded to plaintiffs, residing in Lancaster, by their agent, Long. Waterman, residing in Georgetown, stood /in the double position of being the agent of plaintiffs to receive and forward their goods, and also of being the agent of' the defendants to attend to the loading of their boat, the¿ steamer Atalanta, plying on Pedee, between Georgetown and Cheraw. On the 15th and 36th of October, 1836, the plaintiffs’ goods were put on board the Atalanta, at Georgetown ; on the 17th, she left Georgetown, taking along side of her a tow boat loaded with goods. At the time of her departure, she drew something less than four feet water, and was under the command and care of the following officers and crew: Russel, master, (a white man) Prince, (a slave) Pilot, and Freeman, (a free man of color) engineer, and about twelve or thirteen black men, as the crew. About half way between Georgetown and Cheraw, the Atalanta sunk, at a place called ‘ the Washers.’ When she first sunk she was in ten feet water, her deck being about ten or twelve inches above, but her hold full of water. The great question was, whether she was sunk by inevitable accident, or by some cause which could have been avoided by human foresight and prudence ; and, upon, this point, the testimony is very voluminous on both sides. A survey was made of the localities, and a map, which was given in evidence on the trial, will explain them to the court. To understand the witnesses, we must suppose ourselves to be going up the river as the boat was; towards the east bank (which is on the right going up,) is a cove, formed by the bend of the river, which is full of snags, known to all navigators of the rivei;-; towards the west or left, going up, is a sand bar; and between the cove of snags and the sand bar,, is the regular boat -channel. A gum tree with a large root, forms the eastern limit of this channel: this root is known and called by the name of the ‘ Hurricane;’ and boats, iffpursuing the common channel, run as near this root as possible, without interfering with it; as witness expressed it, they usually graze it with the bow of the boat. The bow of the Atalanta had passed where the limbs of the tree lay, and was within eight or ten yards of *110the root when she sunk — the root being rather to the right of the bow. As the onus was on the defendants, to shew how the boat was sunk, they undertook to show by testimony, that the boat was in the ordinary boat channel, and run on an unknown and concealed snag, at a time when the river was fairly boatable; and that after the accident happened, they used all the diligence in their power to save the goods on board from destruction. For this purpose, they introduced a great deal of testimony. The testimony of Russel, the master, taken by commission, and that of many pilots of boats who were sworn in court, went to show .that the Atalanta was in the exact boat channel when she sunk. The master stated that about 3 o’clock on the 18th of October, whilst the boat was under fair way and running slowly, she was arrested by something, and went down in twenty minutes. At the time, the pilot was at the helm, and he by his side, and the engineer at his post; the boat was in the exact channel; had passed down same way and had seen boats, particularly the ‘ Duncan M’Cra,’ pass precisely the same place with safety, that at this time, there was a little swell in the river' which covered the Hurricane, which was, however, indicated by the rippling of the water over it. He said the engine worked well — but that he was unable to move the boat, and that he was confident she was detained by a snag, which was concealed from and unknown to any on board. Whilst the boat was in this situation he despatched a messenger to one of her owners, Mr. Wright, residing in Cheraw. In about eight days, Mr. Wright came down, and got several gentlemen of standing in the neighborhood to take a survey of the boat, and to advise the owners what they had best do for all concerned. He also got several pilots to examine her situation. Upon sounding, she was then in ten feet water, and the river falling, The pilots said the Atalanta was in the exact channel for boats to pass the Hurricane with safety, and that the river, though low, was fairly boatable, and that the boat was on a concealed and unknown snag. The gentlemen who made the survey advised, that the boat should be raised, and the goods sent to Cheraw and sold as soon as practicable. The goods on deck and the tow boat were sent to Cheraw in *111safety. Exertions were made to procure as many boats as could be obtained to assist in carrying off the goods, and to assist in raising the steamer. A man. by the name of O’Hanlon, living in Wilmington, N C. who built the Atalanta, and who was a man of skill and experience in building, launching and raising boats, was sent for. At first he could not come, being sick, but sent some hands perhaps: some time in November he came himself, and made exertions to raise the boat. Four boats and about thirty hands were employed, with machinery made for the purpose. They continued their exertions for about three months, but without success. The effort to raise the boat cost the defendants about five thousand dollars. The boat was so far moved as to loose it from the snag, or impediment that had detained it, and she drifted down the riv.er into a deeper place, where the wreck is now lying. About the time it drifted down, there came a freshet which washed sand over the boat, so as to render it impracticable, in the estimation of the owners, to do any thing to her with advantage; and she was abandoned. In the mean time, some of the goods were taken out and sold, for the benefit of the owners of the goods.

The defendants also introduced testimony to show that the boat was staunch, the master was competent, the pilot experienced, and the engineer skilful.* As to the first officer, it appeared that he had been acting as clerk on board of the M’Cra, and as far as this situation would enable him to do so, he had become acquainted with the navigation of the Pedee, before he had gone on board of the Atalanta, on which he for a while at first acted as clerk. This was his second trip as master. Several witnesses said they would have trusted him as master, for all that a master has to do in the practical navigation of a boat; all saying that the pilot is the principal officer on board. With regard to the pilot, the testimony was very satisfactory, that he was trust-worthy, and distinguished for his vigilance and experience. The engineer had acted on other boats as engineer; *112had been on board of this boat before this trip, acting as first fireman ; this was his first trip on the Atalanta in which he had charge of the engine. The regular engineer, who was taken sick in going down, said that Freeman was competent, and that the engine was in good order and worked well after the boat sunk. The testimony, on the part of the plaintiffs, went to these points: 1. The master was inexperienced, and the engineer intemperate. 2. The boat was overloaded when she left Georgetown. 3. That she had attempted the navigation when it was too low, and beyond where it was fairly boatable. 4. That the boat was crippled before she reached the Washers. 5. After she sunk, due diligence and prudence were not used to save the goods on board. — On the first, there was some evidence that the master was *young,*and could not be acquainted with the navigation of the river; and one or two witnesses said that the- engineer was occasionally intemperate. -[I think it was shown there was no spirits on board of the boat when the accident happened.] 2. It was shown that the boat was fully laden; and I think, Waterman said, fuller than he had ever known her before. This was a disputed point, as some witness said that she had drawn more water before than she did on this trip. On the 3d point, much testimony was offered ; two witnesses said the river was lower, at the time of the accident, than they had ever known it for loaded steamboats, and all sa'id the river was low; several saying, however, it was not too low to pass the Washers, but that it was navigable to a place called the ‘ Pocket,’ a place above, for steamboats; from which place, goods should have been taken up by lighters. All the witnesses agreed that the Washers was a place of unusual peril for boats to pass, and that it required prudence and skill to run a boat through them in a low river. Upon this part of the case, my own mind was not satisfied, as to the prudence and judgment of the defendants. It was certainly proved that the river was quite low. All the pilots said that they would not have attempted to pass the Washers, if the Hurricane could be seen out of water ; but said that if it was covered, the navigation was safe. There was some uncertainty on this point, from the testimony of the witnesses. 4. The captain acknowledged that the boat touched *113the sand bar, about one hundred yards below the Washers, but that it did not affect her course, or impede her motion. One witness, a man by the name of Grice, said that just opposite his house, the steamer was delayed for an hour, and that the crew was making exertions as though they were endeavoring to get her off from some detention at her bottom. That he saw a snag at the place where the boat lay, and underneath where she stopped. [The testimony of this witness was assailed: see my notes of the testimony.]

Another witness said the steamboat stopped about the same place, but how long he could not say: he was at a house, rising one-fourth of a mile off — 5. Plaintiffs contended that goods might *have been taken out of*the hold of the boat and dried on the land, or carried to a warehouse not far off. Upon this, there was some contrariety of opinion — some witnesses saying that some goods could have *hem fished*out of the hold, and others saying it was a more prudent course to have raised the boat, and to have taken all the goods to Cheraw, and I think this was the general opinion; nearly all the witnesses saying, that to have stopped to take the goods out in detail, by hooking, would have jeoparded all opportunity to raise the boat, by which all might have been saved. [It should be here remarked, that it was thought practicable to raise the boat at the time.] At best, there was a choice of difficulties. To attempt *tofish*up the goods, would have resulted in delay, and would have required boats to take them off, which the defendants could not procure at first; having in vain attempted to hire them before O’Hanlon came to raise the boat, and that then it was more prudent to attempt the raising her. The plaintiffs also introduced testimony to show that it was practicable to get out goods a year after the boat sunk, and that defendants should have then taken them out; and on this part of the case, these extraordinary facts were proved: that, in the summer of 1837, long after the boat was abandoned, and when sand and water were five feet over the hold, (which was ten feet deep,) making a depth of fifteen feet water to the goods, several persons undertook to get, and did get goods out of the hold. The way they pursued was, to put down a pole as a guide : to dive down with a sledge-hammer, and knock *114open boxes, as long as they could hold their breath.. By repeatedly doing so, several persons got up some guns, nails, and other goods, amounting to five hundred dollars, which they sold, claiming the proceeds for salvage. One or two got lost in the hold, and were very nearly drowned: they were forced, by a rise in the river and the peril of the enterprise, to desist from their exertions.— I charged the' jury on all the points: that defendants were subject to the common law responsibilities of common carriers, as modified by judicial decisions, unless they had shown satisfactorily that the loss resulted from *inevitable accident;*from some cause which human prudence and foresight could not have avoided. That-it was not enough to show that the boat had run on an unknown snag, in the ordinary boat channel of the river; but that they should show that the boat was properly loaded .and managed, and that the river was fairly navigable at the time, for steamboats of the size and burthen of the Atalanta. I thought, myself, that the boat was in the common channel of the river, and had run on an unknown snag, but I had great doubt whether the boat should have been put on the river when it was so low; for, when the river is very low, a boat might run on concealed snags, which it would avoid if the water were high enough to float it above them. I said, perhaps, the snag *might*have been avoided, by waiting for a higher river. But at tjie same time, I said this was a question of fact, depending on the testimony; many of the witnesses sayy ing the river was fairly navigable at the time, and but a few saying otherwise ; and it was therefore a question for the jury to determine.- Should the jury come to the conclusion that the boat had sunk by inevitable accident, I charged them that the defendants might be still held liable for negligence and want of prudence, in saving and taking care of the goods; that they were bailees for hire, in the peculiar custody of goods, from whom the plaintiffs had a right to expect not only diligence, labor and care, but prudence, enlightened by information, and directed by intelligent exertion; such prudence, as an intelligent man would have used in taking care of his own property of -the same amount, and similarly situated. Whether the defendants had thus demeaned themselves, was a question for the jury, that depended very much on *115the opinion and statements of witnesses. It was a question that addressed itself to the sound discretion and deliberate judgment of the jury.” The jury, after retiring but a short time, found for the defendants.

The plaintiffs now moved for a new trial, on the following grounds: 1. Because, there was no evidence that the boat was in thé proper channel, when she was snagged — if snagged at all. *2.*Because, the judge charged the jury, that, after the boat snagged, defendants were discharged of their common law liability as carriers, and became mere bailees of the goods on board, and chargeable only for ordinary neglect. 3. Because, the judge charged the jury, that it was not necessary that the master of the vessel should be acquainted with the navigation of the river, if he had a skilful pilot.

*

 It was shewn that the boat was well built, staunch, and new, being about two years in service.

Cuma., per Butler, J.

The jury have found in this case, that the Atalanta sunk by running on a concealed and unknown snag, in the ordinary boat channel, when the river was fairly navigable for steamboats; and that the loss which followed was not in consequence of a want of prudence and diligence on the part of the master and owners: and the material question now made is, did the presiding judge lay down the law correctly, as a guide for the jury, in coming to their conclusion? The charge of the judge, when fully analysed, is this: that the duties of the master and owners did not cease with the catastrophe which arrested and detained the boat, whereby the cargo became damaged, but that they might be held liable for damages arising from want of diligence and proper exertions towards saving and delivering the goods on board. The standard of such diligence and exertions, was said to be such a line of conduct as a prudent man of intelligence would have observed in taking care of his own property, similarly situated. This is but a different mode of stating the principle cf law which may be deduced from adjudicated cases, as applicable to this case, and in stronger terms than I find it laid down in any of them. The decided cases recognise the general principle of law, and illustrate its practical operation. The general principle is, that the master and owners of boats on inland *116navigable rivers, like those of vessels at sea, are common carriers, that they are bailees for hire, and bound by the obligations of the law, to deliver goods placed on board their vessel at the place of their destination, unless they are prevented from so doing by the act of God, or public enemies. The bill of lading is the contract between the owners of the vessel and the freighters ; it is a contract signed by the master, for the owners, and subjects them to all the liabilities incident to it. As soon as goods are taken on board, the owners become insurers to a certain extent, and the only causes which will excuse them for the non-delivery of the goods, must be events falling within the meaning of one of the expressions 1 the act of God,’ and ‘ public enemies,’ unless the contract be specifically qualified and limited. The perils usually excepted, and for losses arising from which they are not liable, are those which do not happen by the intervention of man, nor are to be prevented by human prudence ; and losses arising from them are such as happen in spite of human exertion: 3 Kent’s Com. 212, 213, 215. It has been decided in this state, that a boat lost, by running on an unknown and concealed snag in the regular boat channel, may fall within the excepted perils.

The most usual contest in cases of wreck is, whether the losses from it are to be attributable to the negligence of the master, or are to be regarded as resulting from inevitable accident. When the wreck is inevitable, and a total loss is the immediate consequence, there is little difficulty in applying the general principle of law. In such a case, the master would be absolved from all Huesponsibility. When, however, the injury in the first instance, happens from the act of God — as by the stranding of a vessel — • and, after some interval of time a loss, either partial or total, is the ultimate consequence, there is much greater difficulty in deciding on the rights and liabilities of the parties concerned. The conduct of the master or owners then becomes a subject of important consideration. If they be guilty of negligence, they will be held answerable for all the damages that proceed from it. Their duty is to use all the means within their power and control, to arrest and obviate the consequences of the disaster; and I know of no better criterion, than that they should be bound to use such care *117and attention as a prudent man would ffiave done in a similar situation, with regard to. his own property. Their duty is, to deliver the goods as they were left by the -wreck; if not in a sound, in their damaged state. What will excuse them, must necessarily depend upon the circumstances peculiar to each case ; and, in a great measure, must be a matter of fact to be submitted to the jury. When all reasonable efforts fail to save -the cargo, the ultimate loss may be fairly regarded as resulting from the first cause; as the vis *major*— upon the ground, that when human exertions have failed to obviate its consequences, the act of God may still be regarded as continuing its operation. In the case before us, it is certain that the Atalanta continued to be detained, by the snag on which she struck, for several months, in spite of all the exertions that were used to move her; and, that when she was loosed, she drifted down the river by a freshet, and was covered by the sand. After this, she was abandoned to any one, who might go to the expense or run the risk of saving any goods that were buried in her hold. Whether the best and most effectual means were used by the master and owners to save the goods, is a question full of difficulty and embarrassment. From the cases which I shall quote, I think their conduct should rather be judged of by the actual state of things at the time of the disaster, than by ultimate results. If success had actually crowned their efforts, it would have carried with it its usual fascination and authority, and would have been a sufficient vindication of the present defendants. Failure leaves room for conjecture to say that a different course would have led to different results. If, however, the course had been pursued, which is now indicated by the plaintiffs, and they had sustained a loss by it, they might well have found fault, and have said that defendants should have raised the boat before goods were taken out. It is much easier to criticise the conduct of others than to act well ourselves,'in the midst of embarrassing difficulties, such as surrounded defendants when the accident happened. — The cases which I shall now cite, will illustrate these general remarks and propositions. They have generally occurred in contests involving the liability of underwriters, on common marine policies of insurance, and where the defendants have con*118tended that they were not liable, because the shippers or their agents were. In general, a vessel is doubly insured, when it leaves its port of departure — namely, by a policy of underwriters against the perils of the sea, and by the responsibility of the carriers, to be answerable for all losses that do not arise from such perils. Without saying that it is universal, I think I am safe in saying that it is a general rule, that when the carriers are liable, the underwriters are not; and *vice versa.*In the case of Cheviot v. Brooks, 1 J. R., 364, the action was against the master, for not asserting and establishing the plaintiff’s right to some cochineal, which he might have done after it had been captured by a British vessel. When the defendant’s vessel was captured, by a force «ígPch he could not resist, it appeared that all his papers were seized and taken from him; so that he had to rely entirely on his memory for the contents of the papers, in establishing the right to the different things that had been shipped on board his vessel. He saved all from condemnation but the cochineal; he was discharged from liability for this, because the means of claiming and establishing a right to it had been taken away from him, by a cause which could not have been prevented by him; and the loss was attributed to this cause, rather than to his neglect arising from his failure of memory — it appearing that he had not been guilty of bad faith or misconduct. In the case of Schieffelin v. N. Y. Ins. Co., 9 J. R. 21, the action was against the defendants, on their policy to be answerable only for losses from the perils of the sea. There were several causes which may have contributed to prevent and defeat the voyage in this case. It was however said, that the loss might properly be referred to the seizure, as the absorbing and prevailing cause. The remarks of Judge Kent, who delivered the opinion of the court, will throw some light on this case. When a vessel is stranded, a master ought to procure other means to send on the cargo, if he has it in his power; and if he can, and will not, it would seem to be the better opinion that the insurer is discharged. What may be done, ought to be done, when the rights of third persons are essentially concerned in the act. The master is the agent of the insured until a valid abandonment, and they should bear the consequences of his neglect. The *119judge quotes the case from 2 Camp. N. P. 623, in which it was held that the plaintiff could not recover on a policy, where it appeared that there was a ship which the master might have procured to forward the cargo, near the injured ship, and which he neglected to employ. These authorities show that the neglect of the master will exempt the underwriters; but it seems to have been conceded, that where there was no neglect in the employment of means within the reach of the master, that the insurers would have been held liable. The authorities on the subject are fully quoted and commented on, in the case of Bryant v. Commonwealth Ins. Co., 6 Pickering. 143. The opinion of Woodworth, J. is quoted with approbation, in the case of Treadwell v. Union Ins. Co. 6 Cowen. 270, who says — “ if there be a vessel in the same or contiguous port, the duty of the master to procure it to carry on the cargo, is clear; the rule is imperative, but if resort must be had to distant places, and, independently of procuring a vessel, there are other serious impediments in the way of putting the cargo on board, the rule is not obligatory.” The judge who quotes the above, goes on to say, “ after all, it becomes a question of reasonable care and diligence on the part of the master, and like all other questions of that nature, after the facts are found, the law arising from them will be pronounced by the court.” This fairly brings up the question which was fairly involved in the case under consideration: were the defendants or their agents guilty of negligence in their care and management of plaintiff’s goods *1*If so, they should have been held liable for the damages that were attributable to it after the catastrophe. The jury have found that they used due care and diligence, and all the witnesses (and there were many sworn) except two, said that they approved the defendant’s conduct. All seemed to have supposed that it was practicable to raise the boat, and to forward the goods in another boat, to Cheraw, To this object, they directed all their exertions ; they employed a skilful man, and put thirty or forty hands under him; were engaged for three months, and spent $5,000. It is now said that they should have pursued a different course, and should have taken the goods out by hooking them up. All the witnesses who were examined on this point, said it would have *120been imprudent, and perhaps impracticable. At first, there were no boats, upon which the goods could be taken off; and to have taken them on shore by hand, would have placed them in a worse situation than to let them remain in the vessel; as they would be exposed to putrefaction and theft on shore, whilst in doing so, all opportunity of raising the- boat would have been lost, by which it was thought that all the goods in the hold might have been saved. The witnesses who gave this opinion were intelligent men, and well informed on the subject of boat navigation. It seems to me, that a court should pause long, before it would undertake to decide otherwise. The jury who heard the case, and the witnesses who were most acquainted with the circumstances, may have been mistaken or unduly biassed. If so, how is that to be corrected ? This court will not undertake to direct a jury, peremptorily, how they shall find their verdict. I do not say that it is not competent for the court to do so : I can say, however, that I am not prepared for such a decision.

When -the boat was loosed from the snag, or the impediment that arrested and detained it so long, in spite of all the exertions that were used, it was carried down the river by a sudden freshet, and placed in a position from which it would have cost more than it and the cargo were worth to remove them. By every principle of maritime law, the defendants, then, had a clear right to abandon their charge. The goods were then damaged, and worth little : there was not only, technically, a total loss, which is estimated to be the case where the original cargo is destroyed to the extent of fifty per cent., but in this case, there was what might be termed, in fact, an entire loss. The cargo was not worth saving; at least, it was not worth the trouble and risk of reasonable men. The fact that some hardy and adventurous men, a year after-wards, did dive down, at the imminent risk of their lives, and get up some things, should afford no just criterion for prudent men. If the defendants had forced slaves to have gone down in the hold, under such circumstances, and death had ensued, I should have regarded them, in some measure, as guilty of a criminal homicide. No: the law is wiser in its requirements ; and this answer may be made to the argument urged — why did not the plaintiffs them*121selves go and save the goods *1*there was nothing to prevent them. Their own conduct is the most satisfactory commentary on such an undertaking. My ’mind was better satisfied, on the circuit, with the conduct of the defendants after the disaster, than before it. They then pursued the course which prudent men advised, and which none undertook to condemn; and as I have intimated, their conduct should be judged of at the time they made a choice of an embarrassing alternative, and not by actual and unfortunate results- As in one of the cases put in the books, where a ship is in imminent danger of sinking in the high seas, and there is another ship, apparently of sufficient ability, passing by, the master may remove the cargo into such ship, and although his own ship happen to outlive the storm, and the other perish with the cargo, he will not be answerable for the loss.

I was not satisfied with the conduct of defendants, before the accident: my impression on the circuit (and it has not been since removed) was, that they put their boat on the river when it was too low, and in consequence of it, the boat ran on an unknown snag. Human temerity should not undertake impossibilities, and attribute the consequences to an act of God. This question, however, has been decided by the verdict of the jury, upon the testimony and opinion of witnesses; and, upon the whole, I can see no ground for setting aside the verdict. — The motion is therefore refused.

Gantt, O’Neall, Evans, and Eakle, Justices, concurred.

Richardson, J.,

dissenting. The charge against the defendants is, that they have not delivered the goods put on board their boat. The defence is, that the delivery was prevented by the act of God — the unavoidable snagging of the boat; her consequent sinking in the river, and loss of the cargo; which, therefore, could not be delivered. The rejoinder is, that although the boat was snagged and partially sunk, yet the cargo' remained entire, and might have been delivered, though wet and much injured. The rule of law is plain: if the boat was unavoidably sunk, by an unknown snag, and the cargo thereby *lost,*the carrier is *ex**122cused from the delivery, and the justification of the carrier turns upon the term ‘ *lost;’*not upon the snag piercing the boat — nor upon her consequent depression in shallow water, — nor yet upon the boat being disabled. These must be now assumed to be the acts of God. The boat stood immovable, as if inextricably stranded; but the loss which excuses the carrier, must still, in the words of Chancellor Kent, (vol. 3, 216) be “ a *loss,*happening in spite of all human effort and sagacity.” And it is not a novel occurrence, or an array of difficulties, that can rid the carrier of this severe but wholesome accountability. Upon the same doctrine of common carriers, Chancellor Kent says, p. 213, “ the master is bound to take all possible care of the cargo; and he is responsible for every injury which might have been prevented by human foresight and prudence,” &c.; “ he is chargeable with the most exact diligence.” Upon these two *enactments*— for they stand, for simplicity and clearness, in our laws, like express statutory provisions; and upon their *strict*application to every part of the case before us, and every parcel of the cargo, our decision is to turn. And my opinion must grow out of their application to the extraordinary facts, that have left the Atalanta and her cargo, neither sunk nor stranded, but yet fast moored in the channel of the river. This is probably the first instance, in which a carrier, having his boat merely snagged in our fresh water rivers, has claimed to be excused from the delivery of all the goods in the hull of his boat, wet or dry, as if the boat had sunk to the bottom of the ocean, or had been consumed, cargo and all, by lightning. To apply a rule without its meaning, is merely spurious reasoning. The rule of law, which fixes the great liability of carriers, must be regarded with its reasonable limitations; its rationale suggests its proper application, at every turn of the facts. The carrier is excused, by the act of Providence, *for so much,*be it more or less, of the cargo, as is lost or destroyed, or has been the natural and direct consequence of the act, which is pleaded in excuse. For instance, the carrier cannot be entirely exempt from liability, because lightning has burnt *the*greater part of his cargo, and seared or scorched the rest; he must still deliver the goods that remain, in their damaged state, and would have a right to the *123freight of the goods delivered, in specie. Such goods being delivered, bear freight; but if never delivered, the carrier becomes the insurer, and is liable for the goods, in their deteriorated value. But, to return: when a misfortune constitutes the excuse, such excuse is limited to the natural and essential consequences of such specific misfortune. So far, it is an *estoppel*to the claim for damages, but no farther. The misfortune must constitute a full excuse, amounting to an impossibility for the non delivery of any thing at all; or the carrier is still liable for whatever human power could have rescued. Now, apply this rule of law to the facts. — The boat was snagged on the 18th October, 1836, and sunk to the bed of the river; but her deck remained still a foot above water. Here was no entire loss: and the carrier must show how it became so, still by this act of God. The owner, Mr. Wright, was sent for; he came in eight days, and held a survey: in the mean time, nothing was done to save the goods.' The tow-boat and crew of fifteen men lay idle — the river falling too. The deck load was then sent to Cheraw, in the tow-boat: and why, I ask, was she not before, and afterwards too, employed in the sáme way? Next, O’Hanlon was sent for: he came late in November. In the mean time, and the second time too, nothing farther was done to save the goods. O’Hanlon advised that the boat might be raised: accordingly, they went to work, to raise her; but no attempt was made, at this third period, to save the goods in detail. The scheme may have been worthy of success, but the law of the case is still inflexible. Finally, they failed of raising the boat, and abandoned the attempt to save the cargo in that way, or in any other. At two periods — one, a year afterwards — some strangers went on board, and although the water was then five feet above the deck, they got out a small part of the cargo, valued at $500. How much more could have been fished up with hooks, or got out, when the water was six feet lower, and was a foot below the deck, no one can now tell: but all was not lost; attempts should have been made; and appearances indicate that much might have been saved by early exertions, and exact diligence and human power. Did the snag in the boat prevent such efforts ? Did the accident keep the hatches sealed up, all the time of such *124delay ? Assuredly not. But here, the excuse is that O’Hanlon gave counsel to raise the boat, which kept up the indecision of the captain, and the delay in saving what might have been saved, by immediate exertions: and the end is, that the cargo still remains in the wreck. But, by the' rule 'of law, the carrier is bound to show thafi the delivery of every piece and parcel of the cargo was *estopped,*by the unavoidable occurrence of the boat’s sinking, or its unavoidable consequences; or else he must pay for so much as might have been still delivered, according to the diminished value of goods in such a state. And it is plain, that some of the goods now lost might have been saved by the captain and crew. The cargo then has not been *all*lost, by the natural consequences of the misfortune to the boat But, on the contrary, some, if not a good deal, have been added to the inevitable loss, by omissions, delays, and unlucky councils, which are entirely foreign to, and make no part of the true and natural effects of the specific misfortune* which is set up.as a justification . for the non-delivery of the entire cargo under deck; but which, in fact, is the excuse for the unfruitful delay that ensued. Upon the whole, then, my opinion is,'that the proper legal verdict should have been against the carriers, to a limited extent. That such a verdict would have been the only one concurrent with the just policy and objects of the strict and wholesome laws of common carriers; while the present verdict is against both. Fresh water carriers are not to get rid of their whole responsibility, because their boat sinks; when, in fact, the deck remains above water, and a part of the cargo may be saved. Such a measure of indulgence to erroneous conduct, would infract the legal principle, that nothing but the act of God can justify the non-delivery of the goods confided — but the act of God, or of the enemies of ¡the state ; and such examples may fritter away the rule itself, by /opening the way for plausible excuses, thus mixed up with the f true rule of law, for their shelter and introduction into common f practice. On the contrary, the law against common carriers ^ should be carried through every change of the case, and modifica- \ tion in the amount of their responsibility ; else the rule itself will 'soon yield to the popular arbitrament of each particular case, ac*125cording to the merits or demerits of the carrier. It is very possible that I'take too strong a view of such consequences ; but *“ obsta principiis”*has its place in judicial opinions, and I would send this case back, for the reconsideration of a court and jury, for its magnitude — for its novelty— for its difficulties — and above all, for its principles of law; which may be easily confounded by the circumstantial facts of a case of such complex considerations, and be too little regarded, in the midst of so much to uphold the general course and conduct of the carriers; while they are clearly not enough to justify the non-delivery of the whole cargo under deck, and defeat the wholesome legal presumption against common carriers. Why were these goods left as *bona wavata ?'*might not the very crew, black and white, have returned the moment of her final abandonment, and helped themselves to the goods ? “ The books abound,” says Chancellor Kent, “ with strong cases of recovery against common carriers, without any fault on their part; and we cannot but admire the steady and firm support which the English courts have uniformly and inflexibly given to the salutary rules of law, on this subject, without bending to popular sympathies, or yielding to the hardships of a particular case,” *&c. “*The rule makes,” he continues, “ the common carrier, in the nature of an insurer, and answerable for every loss, not to be attributed to the act of God, or public enemies.— It was introduced to prevent the necessity of going into circumstances impossible to be unravelled.”

*Williams,*for the motion.

*Graham,*contra.

It is in the spirit of those just observations of Chancellor Kent, that I would judge the present case and send it back, to be reconsidered, according to the well settled presumption of law, in all such cases; (see 2 Kent., 602-3) which throws the *onus probandi*on the carrier, to exempt himself from liability — 1 Term., 27, 33; 6 Johns., 160 ; 4 Bin. 127; Story’s Bail., 338. I would therefore say in this case, what we unanimously said in the case of Patton v. M'Grath, Dud. 161: “ let a jury reconsider the case.” Its very *uncertainty*is enough in this politic law of carriers, and casts the loss upon the carrier, lest greater evils should follow.