Harvey v. Pike, 4 N.C. 82, 1 Taylor 82 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 82, 1 Taylor 82

HARVEY against PIKE.

The ¡Master Sebillo-Ha" dmg signed by him, tho’ the goods >re ⅞ ness of the Pi-

The shippey may sue either owner upon a bili 'of lading.

tionoftortíie against the Master for an injury done by totllegoods while a pilot is on board ? Query.

THIS was' an action of assumpsit, tried before Sea-tvELL, J. at Craven Superior Court, where a verdict, un-¿gj. the charge of the Court, was found for the Defend- ° ant. The facts were, that a quantity of merchandize was shipped for the Plaintiff at New-Tork, to be delivered at A'ewbern, 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 merchandize received damage on the voyage^ ancj Ccmrt,, in its direction to the Jury, stated to them, that if the damage was occasioned by the unskil-fulness of the Pilot, after he came on board, the Captain' . . was not liable, A motion was made fora New Trial, on the ground of misdirection, and the Judge doubting the correctness of the opinion he had given, sent the case to . „ tills v^OUlt#

The cause was argued at July Term, 1816, by Badger for the Plaintiff, and Gaston for the Defendant j

and the Court held it unde? advisement till this Term.

Gaston argued for the Defendant,

that he ought no't to be made liable for the unskilfulness of the Pilot, whose qualifications and appointment are decided on by public authority.* That the Defendant was compellable to re^* ceive the Pilot on board; for if he had neglected to do so, and any accident had happened to either vessel or carr go, no recovery could be eifected on the policy of insurance—the owner always undertaking, in such case, that the ship is sea-worthy i that she has a sufficient crew, and a Captain and Pilot of competent skill.^† Not to take a Pilot on board, is gross negligence in the Captain ^‡ and it would seem inconsistent, when he does take one, qualified according to law, that he should be made liable for. his acts. The Pilot, while on board, has the exclusive direction and control of the ship. He is master pro hac vice; and in conformity with this principle, it has been decided, that where a vessel ran foul of another and injured her, that the master of the vessel do.ing the injury, was not liable to the owners of the other vessel, because there was a Pdot on board at the time.^§

Hahtejt Pike. ---

It would certainly be more just, that the Pilot who occasioned the injury, should be made responsible to the Plaintiff, than the Captain who has been in no fault. If, however, his contract is relied upon, the answer is, he entered into that as agent for the owner ; he is called in the bill of lading, “ Master for the present voyage,” and no, inference arises from it that he was any thing more. Wherever a person enters into a contract as the known agent of another, he is not personally liable, but only the principal.^ǁ The owner might have discharged the Mas-II ter at any time after signing the bill of lading, even before the commencement of the voyage ; and to make him liable for the loss of goods, after his authority to take care of them was at an end, would place a Master of a vessel in a very perilous situation.

Madger, for the Plaintiff.

1. Without any bill of lading or express undertaking a carrier for hire is an insurer, and responsible for every loss, except by the act of God, or the public enemies^*— for robbery, fire, leakage, ikc.^† Negligence does not enter into the grounds of the action. It is not sufficient for the carrier to disprove actual negligence, and to shew all possible care ; everv thing is negligence which the law does not excuse.^‡ In the case of Forward v Pittardy Lord Mansfeld says, “ There is a nice distinction between the act of .God, and inevitable necessity.” “ The carrier is liable in this case, inasmuch as he is liable for inevitable accident ^§ The Defendant, then, is liable in this case, as a carrier, although the loss happened u by inevitable accident.”

2. But the Pefendant has engaged, in this bill of lading, that the goods shall be delivered to the Plaintiff, or his order, in the same good order in which they were received, “ the dangers of the seas alone excepted.” Thp goods were not so delivered, and the Defendant is therefore liable in damages to the Plaintiff, unless the loss be covered by the exception in the bill of lading. No force however irresistible, no accident however inevitable, can excuse him, unless it be included in the words “ dangers of the seas,’’ the only exception to his liability in the bill of lading.^ǁ “ When the law creates a duty or charge, and ^le party is disabled to perform it, without any default in him, then the law will excuse him ; but when the party, by his oxvn contract, creates a duty or charge upon himself, he is bound to perform it, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract“ Where a covenant is express, there must be performance, nor shall it be discharged by any collateral matter whatever.^¶ It is clear, that the loss in this case, is not by a peril of the sea.^**

But it is said, that the Master signs this bill as the agent of the owners, and therefore we must look to them, pot him, in this case. The rule is not, that any agent is not answerable, but is only where the agent, at the time of the contract, discloses the name of his principal;^* and this bill of lading does not disclose the name of the owners :^† So that jf he were an agent, he would not he dis charged.

But the Defendant signs as the principal party to the bill of lading. No agency appears on the bill. He signs for himself, and you cannot look out of the bill of lading. But he cannot sign as agent; because if he did, no action could be sustained against him on the bill, under any cir-cuinsumces, whereas a multitude of cases shew that such an action can be sustained.

But it is said, a Pilot was on board, whom the Master was compelled to receive, and upon whom tne law casts the absolute control of the ship. If the Master of the vessel be the principal in the contract, this cannot excuse him, even if it were correct; but the position is not correct. The law does not compel the Master to receive the Pilot, but only to pay him. He may refuse him if he please. ^‡

The Pilot has not a superior authority in the vessel above that of the Master. u The Pilot is one who hath the control of the vessel under the Master. ^§ case of Snell v. Rich, ^ǁ is no doubt a correct decision, but is ^ not at ail applicable to this case. There, an action on the. case was brought against the Master, for carelessly running down another vessel. The Master was not on board-, and the vessel was under the command of a Pilot, who was Master pro tem. Hfere, the Master is sued on his contract, and is answerable at all events, besides those excepted. Every thing done in the voyage is for Ais discharge—*to fulfil his contract-—for his benefit. The Pilot ¡g^ therefore, a person employed by Ak, and he is ao-swerable for any injury happening through the Pilot.^*

* deny that the Master would be discharged, although he should cease to be Master before the completion, or r 7 . even commencement of the voyage. He is Hable in that case as in others Thus is the lessor bound to pay rent and rebuild, although the building be destroyed by fire or • 11 1 J tempest.^†

* Acts 1783, 2. 20.

† 7 Term Rep. 160

‡ Lawrence, J. 7 Term, 160.

§ 1 Johns. 305.

ǁ 2 Car. Law Rep.83, Potts v. Lazarus.

* Com. Contr. 290

† 320 et seq Smith v. Shepard, Abbot on Skipping, 203

‡ Dale v Hall, 1 Wils 282 2 Com. Cont. 321, S. C.

§ 1 Term Rep. p. 33, 34.

ǁ Paradine v. Jane Rep. 27.

¶ Monk's Coo. 2 Str 763.

** park. Inst. 61. 1 Show. 323.

* 1 Com. Cont. 248. 2 Esp.Rep. 567.

† 1 Comm. Cont. 248.

‡ Acts 1783, c 20, § 8.

§ Jac. L. Dict. verb. Pilot

ǁ 1 Johns. Rep. 305

* 6 Term R p. 411 1 Bos. & Pul 404. 2 Esp. N P. 2 9.

† Pasteur v. John Jones & al. Conf. Rep, 194.

Taylor, C. J.

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 oi law, or the contract of the parties in the particular case, afford an excuse for not carrying them, in safety.

Though there js 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. Shepherd,^‡ 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. After-wards 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 non-performance 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 unskil-fulness of the Pilot occasioned the loss ; and as that is not ⅜ peril of the sea, the Plaintiff is entitled to recover.

j think it is equally clear, that the Plaintiff has his elec-tlon 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 foreien country, J J 7 or it might be impossible to find them.^*

But I am not prepared to say, that the Master would ftot 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,^† an action of tort was held to be maintainable against the Owner of the vessel. And Malloy, 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 hath his election to charge either; and if the Master, then he must lick himself whole of the Pilot.”

Seaweix, J.

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 Newbern, dangers of the sea excepted. They have not béén delivered ; and it is admitted by the case, that this default has not been occasioned by any peril of the sea, but through the unskil-fulness 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 non-performance. Had the Defendant been charged wiih a tort for some injury done by theves-sel, whilst Under the control of the Pilot, that case would have differed widely from the present. The Defendant, in such case, not being the author of the mischief, neither continuing it, nor having it in his power to avoid it, would not he liable ; but should he, in such case, have become insurer agáin'st it, it would hardly be doubted but that he would be liable upon his engagement.

The directions to the Jury below, were clearly wrong, ánd the Rule for a New Trial should be absolute.

RurriN, J. concurred in the opinion of S'eawel, J.

‡ Abbot 165.

* Moree v. Slue, Ventric 190, 238.

† 4 Dallas 206