Williams v. Branson, 4 N.C. 224, 1 Car. L. Rep. 224 (1811)

July 1811 · Supreme Court of North Carolina

4 N.C. 224, 1 Car. L. Rep. 224

Williams vs. Branson.

The Defendant, Skipper M’Call, contracted with the Plaintiff’s Son and Agent, at Wilmington, to carry from that place to the town of Fayetteville, certain articles for which he gave the following receipt:

“Wilmington, 18th December, 1806.”

“Received of Mr. Henry Williams, in good order and “well conditioned, the following articles.—Which said “articles I promise to deliver to Messrs. Nesbit and Campbell “at Fayetteville N. C. the dangers of the river only “excepted, they paying freight for the same as marked in the “margin.

“Hugh M’Call"

One of the hogsheads of Sugar, mentioned in said Receipt, being larger than common, could not be got into the hold of the Boat, but was placed behind on the hatches, a place where Sugar is sometimes but not usually carried, except hogsheads of the above description: There was at the time a considerable fresh in the river, which was known (equally) to both parties. There stood on the bank of the river, about ten miles above Wilmington, a large cypress tree, part of which, or some of the limbs of which, leaned, over the river, at this place the river made a bend, and in passing this tree, the stream being rapid the stern of the Boat was driven in towards the bank, and passed under one of the limbs of the tree, which forced the hogshead overboard together with the Skipper who was trying to save it.—The hogshead was lost. It appeared in evidence upon the trial of the cause, that the Skipper, after having deposited the other articles in his Boat, did not wish to receive this hogshead, on account of its size; the plaintiff’s agent replied, that if he carried any, he should carry all; the Skipper then informed him, if the hogshead was taken, it must be placed upon the hatches; and the plaintiff’s agent knew that the said hogshead was placed on the hatches because it could not be got into the hold pf the Boat. It further appeared, that at the time the hogshead was forced overboard, the Boat was in the common way, and that this was the only way along which Boats could be got up the River in time of high water; and that Boats are got up the river by hooking and gigging, and whilst the hands were engaged in the bow of the Boat in hooking to the trees and limbs, which stood on the bank and stretched over the water, the rapidity of the current drove in the stern of the Boat under the limbs which forced the hogshead overboard. It further appeared, that this cypress tree is a well known tree, and was well known to the Skipper and crew of the said Boat. There appeared to be no neglect on the side of the Skipper and crew, except the circumstances before mentioned do constitute neglect in contemplation of law.

This action being brought to recover the value of the hogshead of sugar that was lost, and a verdict rendered for the defendant: It is submitted to the Supreme Court to decide whether the loss of the said hogshead of sugar, is attributable to one of those accounts that comes within the meaning of the expression in the receipt, “Dangers of the river, &c.” If it be, then the rule for a new trial to be discharged; otherwise to be made absolute.

Taylor, C. J.

If the loss of this property were occasioned by such an accident as came fairly within the scope of the exception contained in the bill of lading or receipt, then the defendant ought not to be responsible. Otherwise he must be chargeable upon every principle applicable to the duty of common carriers.

The expressions of that paper are “ dangers of the river only excepted,” and they signify the natural accidents incident to that navigation; not such as might have been avoided by the exercise of that discretion and foresight, which are expected from persons in such employment.

Nor indeed is every loss, proceeding even from a natural cause, to be considered as happening by a peril of the sea; for if a ship perish in consequence of striking against a rock or shallow, the circumstances, under which the event takes place, must be considered, in order to decide whether it happened by a peril of the sea or by the fault of the master. If the situation of the rock or shallow is generally known, and the ship not forced upon it by adverse winds or tempest, the loss is to be imputed to the fault of the master^a; or if the shallow were occasioned by a sudden and recent collection of sand in a place, where ships could before sail in safety; the loss is to be attributed to the act of God, or the perils of the sea.^b

Apply this principle to the case before us, and consider whether the circumstances under which the loss happened do not announce a degree of carelessness or temerity in the Skipper, that ought to render him responsible to the Plaintiff.

The force of the current in the time of a fresh, and the increased danger, thence arising from the cypress tree, were well known to the Skipper. He should not have adventured to pass the bend at such a time, without employing adequate precautions to obviate the danger, if indeed any precaution could have been sufficient. But on prosecuting that part of the voyage at such an unseasonable time, he took the risque upon himself. The state of the river, it is true, was equally known to the Plaintiff, but he neither knew the consequent hazard connected with this part of it, nor does it appear that he urged the departure of the Skipper in the face of such danger.

Here, then, was no tempest, no irresistable impulse of natural causes, but a fixed and well known danger which every man accustomed to the navigation would calculate upon meeting, if he proceeded on the voyage at such a time, with only the usual number of hands. And even these, it appears, were all employed at the bow of the boat, whilst none were left in the stern to counteract the tendency of the current to force that part under the tree. Thus, in the case of Amis v. Stephens,ª where the plaintiffs put goods on board the defendant’s hoy, which sunk in consequence of a sudden gust of wind as she came through a bridge, the court held the defendant not liable, as the accident was occasioned by the act of God; but they said, if the defendant had ventured to shoot the bridge, if the general bent of the weather had been tempestuous, he would have been liable.—The court thinks, upon the whole case, there ought to be a new trial.

a Abbot 169.

b Abbot Ibid.