
    
      HENNEN vs. MUNROE.
    
    The master of a vessel is liable for levissi-ma culpa.
    
    The master of a packet between Pensaco-⅛ and New-Or^ than isVnot Ibound^to a pilot’
    Appeal from the court of the first district.
    m, , • ,-cv ■ . a a mu 1 • 1 he plaintiff m propria persona. 1 he plain- , . i i v a tin, on the 18th October, 1821, shipped at _ .. tt i i rensacoia, on board or the sloop Herald, commanded by the defendant, three boxes of books, in good order and well conditioned, to be delivered in New-Orleans. The sloop sailed on her voyage towards dusk of the same day; and about 9 o’clock that night, there being no pilot on board, while sailing out of the bay; the defendant placed one of the passengers, J. B. Forster, at the helm, that he might go forward to view the land; being unable to discern it, owing to the darkness of the night, returned to the helm, and requested him to go forward for that purpose. The vessel had already approached so near the land, that while the passenger was looking out forward. but unable to direct the defendant at the [je]m5 he himself, from the quarter deck, discovered his danger; ordered the peak to be struck; but before his orders were obeyed, and the course of the vessel could be changed, she ran ashore on the Caulker’s shoal near the Barrancas, at the entrance of the bay of Pensacola. In order to lighten the sloop for the purpose of getting her off the defendant judged proper to discharge part of her cargo, among which he included, without the consent of the plaintiff, two out of his three boxes of books, weighing about 200 lbs. each : they were carried on to the beach, about 200 yards from the vessel, and put one on billets of wood, the other on some of the cargo, and about ten yards beyond high water mark; instead of placing them on high land, where they could never be reached even by the spray of the sea, in case of a storm.
    East’n District.
    
      May, 1822.
    Five days after the cargo had been landed, it blew hard and the surf beat up against some of the goods: by which it is supposed, for there is no positive evidence on the subject, that the two boxes of books were damaged. The sloop, however, got off, without any damage; proceeded to New-Orleans; where the boxes X were surveyed in the store of B. Levy, by the port-wardens, who finding the books in two of them damaged by salt water, ordered a sale thereof at public auction in due form of law: which being done, a loss accrued amounting to $629 63 : for the reimbursement of which sum the present suit has been instituted by the plaintiff who alleges that the damage happened from the carelessness and culpability of the defendant.
    The judge below, to whom this cause was submitted on the evidence now on record, considered that the defendant, as a common carrier, was bound only to take ordinary care of the goods intrusted to him, and that he could not be charged for the damage, which, by a slight degree of negligence, had been caused to the books, as he conceived, from the beating of the spray, on the rising of the storm, and therefore, gave judgment for the defendant.
    That the court erred in the principle of law, on which the case was decided ; and has drawn an incorrect conclusion from the evidence, is what the plaintiff now calls upon this court to determine, and which he will en-deavour to shew most conclusively.
    
      It may be premised that the rule of deci- .... sion in this case, is not to be taken from any statutory provision of this state, but must be <]rawn from that branch of the law of nations usually termed Lex .Mercatoria, which is re-cognised in all commercial states, and is to be collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. 4 Blac. Comm. 67. 1 Blac. Comm. 273. 1 Marshall on Insur. 19. — JYon erit alia lex Romee, alia Athenis, alia nunc, alia posthac : sed ct omnes gentes,' et omni tempore, eademque lex obtinehit. Let us then investigate among the writings of approved authors, what is the degree of care and diligence required from masters of vessels ; for what faults and omissions they are responsible, and in what way they can excuse themselves for damage done to goods committed to their charge.
    The Spanish writers inform us that the master of a vessel is responsible for damages, whenever he has not discharged the functions of his employment with due diligence. The slightest fault committed by him, or the omission of that which the most diligent in his art, with the most exact diligence, could perform, render him culpable, and put to his charge every damage arising therefrom. Finalmente ■se tenga por regla ser a cargo del maestre los daños que sucedieren por su culpa, — no haciendo lo que es á su cargo con la diligencia debida. Sobre lo qual es obligado de la culpa levísima, no haciendo lo que el diligentísimo en este arte hace, par la exactísima vigilcncia, y diligencia, que en el se require, como lo dicen algunos autores, y en particular Sylvestre, Gregorio Lopex, y Straca, por un texto. — Curia Philipica, Comercio JYavál, lib. 3, cap. 12, Daños, n. ,30, 509. Exercitor qui recepit, tenetur de levis-sima culpa, says Gregorio Lopez, gloss. 9 Sc 10. Part. 5, 8, 26. See also 3 Curia Philipica, Ilus-trada, 314; where we are informed what is understood by the words just quoted. — Levis-sima culpa es la negligencia de aquello que los dilir gentissimos suelen alvidar. The text of the Roman law referred to in the Curia, is found ff. 19, 2, 25, 7, and is as follows: — Qui columnam transportandam conduxit, si ea dum tollitur autpor-tatur,aut reponitur, fracta sit,itaidpericulumprce-stat, si qua ipsius eorumque, quorum opera uteretur, culpa accident: culpa autem abest, si omnia facta sunt, quee diligentissimus quisque observaturus fuis-set. Idem scilicet intelligemus, Sc si dolía vel tiguum transportandam aliquis conduxerit. Idemque etiam 
      
      ad c at eras res transferri potest. In France the J same doctrine is established : Le capitaine est un mandataire a «•«¿re, qui répond de la faute trés légére. Si le capitaine n'a pas prém ce qu'il aurait dü prévoir, il est en faute. II est en faute, s'il a failli par ignorance de son art. Le capitaine est tenu de tons les dommages qui arrivent á la mar-chandise par sa faute ; car il doit rendre la mar-chandise telle qú’il l’u recu. á moins que le dommage ne procede d'un accident qu'on n'a pu ni prevoir, ni empécher. 1 Emerigon, 373, 377.
    
      C'est au maitre du navire que sont confiées les marchandises qui y sont chargées; c'est done á lui á en répondre, sauf les accidents maritimes nonproce-dans de son fait ou de sa faute, ou de ses gens. Il est tenu de toute faute procedant de son fait ou de sa negligence, méme de la faute appellee trés légére ; de maniere qu'il n'y a que le cas fortuit qui puisse l'ex-cu ser. Et c'est a lui a prover le cas fortuit. 1 Va-lin, .394. What is to be understood by le cas fortuit, is most luminously expressed by Eme-rigon : On appelle cas fortuit, says he, les erene-ments que la prudence humaine ne saurait prevoir. Fortuitos casus nullum humanum concilium provi-dere potest. Lib. 2, sec. 1, ff.de admin, rer. ad civil, Liv. 6. C. de pignor act.
    
    
      On appelle force majeure, vis major. cede á la 
      
      quelle on ne peut résister: cut resistí non potest. L. 15, see. 2, jj. locati. L. 25, sec. 6, jj. eod.
    
    
      Ces deux points se confondent. On entend pur cas fortuit une force majeure qicon ne peut précoir, et ft laquelle on ne peut pas résister, & cui prcecaveri non potest. Cujas, sur la Rubrique du code, de local o. Casarégis, disc. 23, n. 38. Straccha, gl. 22.
    
      II suit de cette definition que tout cas qii’on a pu prévoir et eviter, Vest. pas forluit. Ubi autem diligentísimas prcecavisset et providisset, non dicitur proprie casus fortuitas. Santerna, part. 3, n. 65.
    
      II y a une grande difference á /aire entre cas for-tuit, et cas impremí. La pertc. qui arrive par Vimprudence on Vimpérilie du caplainc, est impré-vue, metis elle Vest pas fortuite : improvisas casus dicitur qui sold imprudentibus contingere. Santer-na, d. loce.
    
    
      En un mot, on ne met dans la cathégorie des cas fortuits que ceux qui arrivent malgré toute la prudence humaine ; quod fato contingit, et cuivis pa-trifamilias, quamvis diligentísimo possit contin-gere. L. 11, sec. 5, ff. de minorib. 1 Emeri-gon, 358.
    These principles of Valin and Emerigon, two of the most illustrious writers on commercial subjects, who have flourished in any age, have been consecrated in France, by the Code de Commerce, arh 221 and 230.
    
      Tout capitaine, maitre ou patron, charge de la conduite d^un navire on autre batiment, est garant de ses fautes, mime legéres, dans Vexercice de ses fontions.
    
    
      La responsabilitc du capitaine ne cesse que par . la prewoe d’obstacles de force majeure.
    
    The Italian, and other writers, maintain the same doctrines, as we aré informed, 3 Curia Philipica, Ulustrada, 314; Casaregis assegura que el maestre esta obligado por qualquiera culpa, sea lata, leve, o levissima. See Casaregis, Disc. 19, n. 31, 34, Disc. 23, n. 60, 63, and Disc. 122.— Stypman, Part. 4, tit. 15, n. 322, 556, says expressly, Venit in hanc actionem ex contractu ma-gistri navis, non solum dolus et culpa levis, sed etiam levissima : solum casus fortuitas excipitur.— The English and American jurisprudence on this point is well settled, and must be familiar to the court.
    
      Abbott, Part. 3, ch. 3, n. 9, states, that the master must, during the voyage, take all possible care of the cargo; by the general principle of the law, the master is held responsible for every injury that might have been prevented by human foresight or care; and that he is responsible for goods injured in con- , ,. ... . . sequence ot the ship sailing, in iair weather, against a rock or shallow, known to expert mariners. Marshall on Insurance, 241, states, that it is the policy of the law to hold the master responsible for all loss or damage that may happen to the goods committed to his charge, whether it arise from the negligence, ignorance, or wilful misconduct of himself or his mariners, or aiiy on board the ship. As soon therefore as goods are put on board, they are in the master’s charge, and he is bound to deliver them, again in the same state in which they were shipped; and he, as well as the owners, is answerable for all loss or damage they may sustain, unless it proceed from an inherent defect in the article, or from some accident or misfortune, which could not be foreseen or prevented. In the American edition of Jacobson’s laws of the sea, at p. 88, the editor, in a note, has given a summary of the law as held in the united states. “ The courts in this country have always considered masters of vessels liable, as common carriers, in respect to foreign as well as internal voyages. In an action against a master. <⅜&; owners for loss or injury to goods, enquiry is not whether the injury proceeded from the default or neglect of the master, but whether this injury has resulted from any of those causes which form exceptions to their liability; for if it has not resulted from such causes, whether it be owing to the master’s neglect, or not, is of no importance ; neglect or default will be presumed.
    In a suit for indemnification against this species of neglect, it is enough to prove the article in good order when delivered to the defendant, and that it was otherwise, when received from him: and it is said, evidence of care on the part of the defendant, ought not to be admitted.” Lex Merc. Jim. 178.
    In a case decided by the supreme court of the state of New-York, 10 Johns. Rep., Elliott vs. Rossell, the whole doctrine of the law on this subject, is ably discussed by the chief justice, Kent; and after an investigation of much learning and research, is luminously expounded, and authoritatively settled — from the argument of this profound judge, I will make a few extracts. — “ It has long been settled, says he, that a common carrier warrants the safe delivery of goods, in all but the excepted ca&es of the act of God, and public enemies ; and there is no distinction between a carrier by land, and a carrier by water.— Masters and owners of vessels are liable as common carriers, on the high seas, as well as in port; in short, it must be regarded as a settled point in the English law, that masters and owners of vessels are liable in port, and at sea, and abroad, to the whole extent of inland carriers. The marine law is essentially the same, and holds an equally strict control over the master; and upon the same principle of public policy, a master of a vessel, or common carrier, by the almost universal law of nations, as well as by the common law of England, is chargeable for all losses not arising from inevitable accident, if, therefore, according to Roccus, a theft be committed on board, the master is answerable, like an innkeeper, though the loss happen without his fault. So if the ship strike on a shoal, unless it be by the violence of winds or storms, he is liable, because he did not provide against an accident which a careful navigator would have foreseen. So he is liable if he does not conduct the voyage with a due regard to the circumstances of the ship, time and place, and the practice of skilful navigators. Roccus, n. 
      40, 55, 56. Emerigon, tom. 1, 373, 377, says. it is so difficult to discover the faults of a master a vesse}? ⅛⅛⅛ he ¡s responsible for every slight negligence. He is in fault, if he has not foreseen what he ought to have foreseen, with due diligence. In short, he says the master, in consequence of his compensation, is answerable for all damage which the cargo receives, unless it proceeds from an accident which he could not foresee or prevent. Va-lin declares expressly, tom. 1, 394, that nothing but the cas fortuity will excuse the master of a ship from responsibility for a loss.— The rule applies, in the French Code, equally to carriers by land, and by water. We must, therefore conclude, that there is nothing peculiar on this subject, in what is termed, in English law, the custom of the realm; for the marine law lays down the rule against carriers with essentially the same strictness or severity of sanction.
    The civil law, the source, in this instance, of the marine law, was equally guarded, and placed masters of vessels, and inn-keepers under the same responsibility. They were held liable, under an edict of the praetor, for every loss happening without their fault, that did not happen damno fatah; or, as Voet . . . . . presses it m his Commentaries, exceptio est sola, qitod damno fatali aut vi majore, veluti nau-fragio aut piratarum injuria, perisse constat; and he says, that, except as to the penalty, the rigour of the rule continues to this day, in the Dutch jurisprudence. Dig. 4, 9, sec. 1, and 3, Dig. 47, 5, sec. 1 and 3, Voet's Commentaries, h. t. The reason given in the civil law, for the rule is, that it was necessary to confide largely in the honesty of these people, and to give great opportunities to commit frauds which it would be impossible to trace. And this strict rule has no doubt been as generally adopted, and as widely diffused, as the Roman law. Erskine (Institutes, 452, pi. 28, 29,) says, that the edict of the praetor is, with some variations, adopted into the law of Scotland. Indeed, we find the rule stated in precisely the same terms, in the ancient usages of a country, into which we do not know that the Roman law ever penetrated. “ If a load be damaged by a carrier’s fault, whatever is lost, he shall be compelled to make good, unless this injury happen by the act of God, or of the king, and whatever does not so happen, denotes a fault.” Cole-brooke’s Digest of Hindu law, vol. 2, 372, 374.
    
      The courts in this country have always considered masters of vessels liable as common carriers, in respect to foreign, as well* as internal voyages. In McClure vs. Hammond, 1 Bay’s Rep. 99, the defendant undertook to bring a quantity of tobacco for the plaintiff, from Augusta, in Georgia, to Charleston, and the vessel was driven ashore on the coast, during the voyage; and as the loss did not appear to have arisen from inevitable accident, he was held liable as a common carrier.
    These authorities which might have been extended much further, establish conclusively, I presume, the principle of law which I advanced, in opposition to the rule of decision assumed by the judge a quo, in his judgment, that the master of a vessel is bound to take ordinary care only of the goods entrusted to him.
    Let us now examine the facts of this case, and from an analysis of them, draw that conclusion which will be in conformity with the law just laid down.
    1. The defendant sailed from the port at dusk, and proceeding down the bay, during a very dark night, when the land could not be discerned, without a pilot, attempting to put to sea: having overrun his reckoning, the vessel grounded on the Caulker’s shoal. All this was imprudent, not to say more ; in such a state of things a careful captain would have cast anchor until morning, and then he could have proceeded to sea without risk.
    2. The defendant transported the goods of the plaintiff, without his consent, from the vessel on to the beach; and there placed them at only a distance of ten yards from high water mark. The weight of the two boxes did not exceed 400 lbs., and could not have hindered the vessel from floating off the shoal, when lightened by taking out such part of the cargo as was not liable to damage. The defendant was informed when these boxes were put on board, that they contained books, and should therefore have taken such care of them as would secure them from water. The box left on board of the sloop was not injured; the other two would not have experienced any damage, had they remained with that part of the cargo which was not moved.
    3. When the defendant took upon himself to select the two boxes of books, knowing their contents, he should have provided effectually against every damage which might be caused to them by the surf of the sea; every measure should have been taken which human foresight could suggest for their preservation. They should not have been left so near the edge of the sea, on the beach; but removed to high land, during the five days which intervened from the time they were landed, until the surf beat up about them.
    Conceding to the defendant that he was without culpability in attempting to go out to sea during a very dark night, without a pilot, and that the vessel grounded through an error of reckoning on his part; how can he excuse himself for the want of foresight; the imprudence in placing books so near the edge of the sea; which he knew was so liable to be agitated and raised by storms ? But has the defendant, on whom the burthen of proof lies, shewn by what means the books were damaged ? That the damage which they did experience, could not have been prevented by any human foresight ? Has the defendant, in a word, brought himself within the exceptions which will excuse common carriers for a damage done to the goods committed to their charge P I think this court will answer in the negative, and render a judgment against the defendant for the reimbursement of the loss experienced by the plaintiff.
    
      Euslis, for the defendant.
    This is a hard action against a person to whom no fraud or negligence can be imputed. I ask the opposite counsel to put his finger on any part of the record which proves the defendant’s negligence. No fault has been committed: nothing-left undone which the most careful master would have thought of.
    The plaintiff accompanied his goods ; they were under his immediate care.
    The packet set sail in the afternoon. Neither the plaintiff, nor any other passenger, made the smallest objection to her going to sea at that time. American captains do not, like the Spanish, take in their sail at night, and go to prayers. It is proven that it blew fresh, by one witness, and said by others, that the defendant overran his reckoning. The navigation is difficult. There was no particular necessity of taking a pilot. The ordinance of the port of Pensacola, relative to pilotage, requires only vessels of a larger draft than that of the defendant, to take a pilot.
    The defendant acted prudently in sending the plaintiff’s goods ashore. He would have . , been liable if he had suffered them to remain on board, when he had time to land them, and they had perished.
    It blew a hard gale when the goods were placed on the beach, and the presumption was, that the waves had reached the highest point.
    We have shewn a force majeure, a tempest— he cannot shew more.
    Spanish law has nothing to do with this case. It is to be governed by our own laws. Although the contract was made in Pensacola, it was to be executed by the delivery of the goods in this city. The essence of the contract was their delivery. The packet belonged to New-Orleans. Both parties were inhabitants of New-Orleans. In a matter of doubt, these circumstances must have weight. The parties must not be presumed to have contracted with reference to the laws of Pensacola. Suppose five per cent primage to be allowed by these, could they have been recovered here ?
    I quote 1 Johns. 93, to shew that a note made in France, payable here, is good without a stamp; our courts not noticing the revenue laws of other countries. What was the essence of the contract ? Payment in America. Here it was the delivery of goods in Louisiana. Let the gentleman distinguish that case, if he can, from this.
    In 4 Johns. 289, is a case to the same point. This is the general law on the subject.
    The cases of 7 Martin, 213, and 4 id. 582, can be easily disposed nf. The court never has had the point directly before it. In the first, the reason why the court gave the privilege was, that delivery was not of the essence of the contract of sale. The other was a case of jettison; the obligation of the party arose from a contingency ; the throwing out of the goods at sea. There was no contract on that subject, and when the question arose, what law should govern, the court held that it could not be supposed that citizens of New-York had the laws of Louisiana in contemplation. If that contract had been to be executed in Louisiana, the decision would have been as I contend for, and the opinion of the court supports my conclusion.
    In Hampton vs. brig Thaddeus, the court decided rightly; because the point was not made and no law was proven.
   Martin, J.

delivered the opinion of the court. We agree with the plaintiff, that the master of a ship is liable for levissima culpa. gQ qUestj0n before us is only one of fact: was the defendant guilty of any neglect or fault ?

The plaintiff urges that he was, 1. In sailing from the port at dusk, and proceeding down the bay, during a dark night, without a pilot.

2. In transporting the goods on shore, without the plaintiff’s consent, and placing them on the beach, at a short distance from the water.

3. In selecting the boxes, which contained the books, to be landed, and suffering them to remain long on the beach.

I. The evidence shews that the defendant •• attempted to go out of the bay, the evening of his departure from the town of Pensacola.” The inference is strong, that he sailed in the day time. Nothing on the record enables us to ascertain the distance between the anchorage before the town, and the entrance of the bay. We are unable to cross-examine the witness, in order to discover whether the place was a proper one to cast anchor in; r r r whether the extreme darkness of the night, and freshness of the wind, which are presented as the cause of the vessel getting aground, did not come on suddenly.

The evidence before us shews, that although the entrance of the Barrancas be difficult, “ vessels that commonly ply between New-Orleans and Pensacola, are not in the habit of employing pilots, either in coming in, or going out of Pensacola bay — that after two or three trips, captains are as capable of safely conducting their vessels, as any pilot, provided they be of a small draft, say, five or six feet;” that the defendant’s vessel is a regular packet, plying between New-Orleans and Pensacola, and captain Munroe, in the deponent’s knowlege, has been several times the same voyage; and the regulations of the port of Pensacola, do not require a pilot to be taken by vessels drawing not more than five feet water.

Jacobson holds, that coasting vessels are not bound to take pilots. Sea Laws.

II. The landing of the cargo, appears to have been a measure of necessity; we do not know that the defendant was bound to con-suit the plaintiff, who, however, does not shew that he made any objection.

The testimony does not warrant the conclusion, which is endeavoured to be pressed on us, that the goods were carelessly left at too short a distance from high water mark.— The evidence is, that “ it blew hard, and rained the whole time they were engaged in landing the cargo, and after.” The manner in which the security of the cargo was provided for, is minutely detailed, and shews considerable care. It is sworn that “captain Munroe worked constantly, and made use of every possible exertion to get the sloop off, and took as much care of the cargo, while on shore, and disposed of it as judiciously as any man could have done.” It is shewn that extreme difficulty was experienced, in landing and bringing back the cargo on board, owing to heavy-winds and a high sea.

From all this, we are bound to infer, that, the plaintiff’s boxes were put at such a distance from high watermark, as the hurry the crew were in, permitted. It appears the spot they were placed in, proved a safe one during the storm, which prevailed while they were brought ashore, and they were engaged h J during a second, and more violent storm, which no evidence enables us to say, could have been foreseen.

III. We are unable to discover that the violence of the storm left the defendant at liberty to make any selection, as to the part of the cargo which was first to be carried on shore; and the testimony shews, that “the crew were kept constantly at work, in en-deavouring to get the vessel off”; which precludes the idea, that any part of the cargo was unnecessarily left ashore, while it could have been safely brought back on board.

When it is considered that the plaintiff was on board, with a very near relation, by affinity, who had had the care of the books in Pensacola, and had himself delivered them to the defendant — that this person has been examined as a witness, it may be concluded that no circumstance which may avail the plaintiff has been omitted to be proven. Yet the case enables the defendant to shew that he did what could be expected from him.

We believe the captain took a proper car©of the goods, after the vessel got aground.

The only doubt with us has been, whether the coming out of the bay at night was justifiable. It is shewn that vessels, drawing not more than five feet, are not bound to take a pilot; and although it is said, that in extreme freshes, vessels drawing nine feet come into the canal Carondelet, the presumption is, that a packet plying between Pensacola and New-Orleans, is of such a draft as will enable her to come in the ordinary height of water, which does not exceed six feet; so the captain, not being bound to take a pilot, was only bound to use the same care as a pilot, and is only chargeable as a pilot would be, in the present case.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  