
    
      R. C. Swindler, survivor, vs. Hilliard & Brooks. P. P. Chambers & Co. vs. the same.
    
    The owners of a steamboat employed in carrying- goods for hire, between Charleston and Columbia, are common carriers.
    A common carrier may limit his liability by a special contract.
    Defendants, common carriers by steamboat, running between Charleston and Columbia, gave to the plaintiffs, shippers of cotton, bills of lading, containing the following exceptions : 1st bill; “dangers of fire and navigation only excepted.” 2nd bill, “ unavoidable accidents of navigation and fire excepted.” The cotton was burnt on board the boat. Held, (1) that “ dangers of fire,” and “ unavoidable accidents of fire,” meant the same thing; and (2) that the term “ fire” meant any fire, and was not restricted to fire originating from the furnace of the boat.
    Common carriers cannot, by any special contract, exempt themselves from liability for losses arising from negligence ; and where there is a special acceptance, the onus of shewing, not only that the cause of the loss was within the terms of the exception, but also, that there was no negligence, lies on the carrier.
    
      Before O’Neall, J. at Charleston, Spring Term, 1845.
    In the case of Swindler against Hilliard & Brooks, the report of the presiding Judge is as follows:
    “ This was an action against the defendants, the owners of the steamer Kershaw, on the following receipt. “ Received, Columbia, Dec. 11th, 1843, from Calmes & Swindler, in good order, on board the steamer Kershaw, one hundred bales cotton, marked as in the margin, to be delivered in like good order and condition, unto Messrs. R. J. Caldwell, Charleston, S. C. They paying seventy-five cents (75) per bale freight for the same, dangers of fire and navigation only, excepted.” The cotton never reached its destination. One of the plaintiff’s witnesses was asked if he had not heard the plaintiff say the cotton and boat were burnt, as she lay at Singleton’s landing, where she had stopped on her way from Granby, (where the plaintiff's cotton was shipped) to Charleston. He said he had. The value of the cotton was proved. So was the death of Mr. George B. Calmes, of the firm of Calmes & Swindler, after the institution of this suit. Here the plaintiff rested his case. The defendants called no witnesses. After argument, the case was submitted to the jury, who were instructed, that the defendants, the owners of a steamboat, carrying produce or merchandize for freight, were common carriers; and as such, without a special contract, would be liable to all losses, except such as arose from the act of God, or the enemies of the country. But that they could vary this general liability by contract. The receipt in this case was such a contract; and by its stipulations, the defendants’ liability was to be tested. What was meant by the dangers of navigation and fire ? As to the dangers of navigation, I thought nothing more was meant than such dangers as those which would in all cases exempt a carrier. They were the act of God. Such as running upon an unknown rock or snag in the usual boat channel. By the dangers of fire, I understood to be meant, the dangers of fire which arose from the boat being propelled by steam, and which made fire a necessary but dangerous element to her navigation. I said nothing to the jury in.this case, about usage entering into my construction of the contract, fori knew nothing about the usage; in a subsequent case there was some proof about usage, and in that case I may have said something about it, which even then the counsel must have misunderstood, and in that way occasioned one of the grounds of appeal in this case. The jury were told, if they believed that the boat and cotton were burnt from fire originating from the use of it in propelling the boat by steam, that the defendants were not liable, otherwise that they would be. I may have said to the jury, in commenting on. the facts, that the circumstance that the boat was burnt when she was not in motion, might induce them to think that the fire could not have had its origin from that used in producing steam to propel the boat. But I also said to them, it was equally true the fire might have escaped from the furnace while fire was there employed to heat the boilers, and lain dormant in the cotton or boat, until after she was at the landing, and then broke out and burnt her and ’her cargo; and if this was so, the defendants were not liable.
    “The jury found for the plaintiff the value of the cotton . The defendants appeal, on the annexed grounds.”
    1. Because his Honor charged that the defendants were bound as common carriers, when there was no evidence that they were such carriers ; the only carriage proved in the case being of the particular parcel of cotton covered by this special contract.
    2. Because his Honor charged that the defendants were (notwithstanding the saving of fire, and the proof that the loss occurred by fire) bound to prove that the fire occurred without negligence.
    3. Because his Honor, against the plain meaning and intent of thé exception in the bill of lading or boat receipt, upon which this action was brought, charged the jury, that the exception of “ fire” was to be limited to fire arising from the steam engine.
    4. Because his Honor construed this bill of lading (as :he stated) upon his view of the usage which had grown up in the country, to insert such exceptions in steamboat receipts or bills of lading, when no evidence was offered at the trial, to prove such usage or to explain it, and not according to its own terms and import.
    5. Because his Honor charged, that if the steamboat had been on her voyage and the fire had occurred from a spark escaping from the machinery, that would have been within the exception j but as the steamer was lying at a landing when the fire occurred, it was not within the exception.
    6. Because his Honor charged the jury, that in this case it was incumbent on the defendants to prove that the loss occurred from fire from the steam engine, and without negligence on their part, otherwise the verdict must be.for the plaintiff upon the proof offered.
    7. Because the verdict is contrary to law and the evidence in the case.
    In the case of Chambers against Hilliard & Brooks, the report of the presiding Judge is as follows :
    “ The defendants were the owners of the steamer Ker-shaw. They received on board of her from the plaintiffs, seventy-two bales of cotton, for which they gave the following receipt: “ Received, Columbia, December 14th, 1843, of P. P. Chambers & Co. in good order, on board steamer Kershaw, seventy-two bales of cotton, marked as in margin, to be delivered in like good order and condition to J. S. Chambers, Charleston, S. C., he paying 73 cents per bale freight for the same, unavoidable accidents of navigation and fire excepted.”
    “ The boat left Granby on the morning of the 14th of December, at half past 10. She reached Singleton’s landing at 12 meridian, where she stopped for freight, and shipped on her upper deck 140 bales of cotton, packed in cotton cotton-bagging, belonging to Mr. Singleton. Immediately on her arrival, the fire was extinguished, carefully raked out of the furnaces, and fresh wood put in, so as to be ready for a very early start the next morning. The hands, with the exception of Moses, who had been sick, were up all the night before, loading, at Granby. They completed loading Singleton’s cotton about dark, on the 14th, They cooked their supper on board. The watchman, Moses, a negro man of Mr. Hilliard’s, was put upon duty between 7 and 8 ; for the mate, Blin, whose duty it was to set the watch, said he went to sleep at half past 7. The captain and all hands except the watchman and engineer, Duffus, must have gone to sleep about the same time. The boat was lying with her head up stream, her starboard side next to the bank, from which to her deck was a plank about twenty feet long ; she was fastened by a hawser of about five fathoms in length. Dufius said that he was up reading in the cabin, until a few minutes before the fire, hereafter to be spoken of; when he went to bed everything seemed, to be safe, no appearance nor smell of fire. He had not been in bed twenty minutes, until he heard the cry of fire ; jumped out of bed and ran down ; found the fire had broken out three bales abaft the boilers, and immediately beneath' the promenade deck; the hands were, when he got down, pouring water on the fire; he ran to the tool room to get the hose of the engine — before he could get it, the smoke became so suffocating as to drive him on the deck; the flames made such rapid progress, that in twenty or thirty minutes the boat was in a sheet of flame ; he lost part of his clothing, saved two trunks ; the boat and every bale of cotton was burnt; they could not scuttle her, nor could the small boat, which hung at or on her stern, be got loose ; the axes were in the tool room, and the bulwarks of the boat, when loaded, were so near down to the water there was no chance to get under them to scuttle her. The boat burnt loose from her fastening, and drifted into a bight of the river, one and a half miles below, and there sunk. He said it was near 10 'o’clock at night when the fire began. In most particulars, this witness’s account of the fire was followed and sustained by Captain Chase, and the mate, Mr. Blin. Captain Chase said he lost most of his clothes and $500 in cash; Blin said he lost his watch and money — saved one trunk. The account by these witnesses of the time of the commencement of the fire, and its progress, was very materially contradicted by Rucker and Davis. Mr. Rucker was the overseer on the plantation one mile below Singleton’s landing, on the river ; he said he saw the fire at eight o’clock, and watched it from that time until eleven at night, when the boat floated past him, as he stood on the bank; a part, he said, of the deck load was not then on fire. While the boat was on fire he halloed, with the view of exciting an answer — ■ none was given. Mr. Davis was at his plantation, two or three miles above, on the river ; he saw the fire at seven or eight o’clock, again at nine and at ten o’clock. Captain Chase, it was proved by Johnson, told him the next day after the fire, in answer to his inquiry how the fire got such a start, that they were all worn out for the want of sleep, from being up the night before at Granby, loading, and were asleep, and when aroused, the fire had made such progress, that in three minutes the promenade deck was so hot that it could not be walked upon. He said to him, that from the first of being on board the boat, (this was his first trip,) he told the engineer of the danger of her being burnt; the sparks, he said, were escaping through her brick work, flying about in every direction, and he felt as if he was in a d-d old powder mill. There was proof that in her previous trip the boat had been run on an oyster bank, and had to be drawn off by another boat. One of the witnesses, Harper, thought she sustained injury. But the proof, I think, very clearly shewed that the boat was a good one, and in good order, and in every respect well found. The boat was constructed with open railings under her promenade deck, and above the water, so that her cargo of cotton, when on fire, would be exposed to the action of the air.
    “ There was a great deal of proof about the question, whether there were two rates of freight, one at which the freighters were their own insurers, and the other at which the boat owners were to be the insurers. It need not be stated in detail. The defendants arranged with the agent of the Insurance Company of Augusta, that cotton shipped on board their steam boats should be insured by the boat agent in Columbia, noting the fact of insurance on the freight list. The defendant, Hilliard, instructed Sond-ley, the boat agent in Columbia, that when the consignors desired their cotton insured, it would be on paying 12 1-2 cents per bale above the common freight, and noting the fact of insurance upon the freight list. Mr. Sondley and his clerk, Mr. Anderson, thought this was fully communicated to, and known by, the usual shippers by the boat; but several of them, Swindler, Nunnamaker and Kennedy, denied any such knowledge. The defendants owned steamboats on the Wateree, (DeKalb and Wateree ;) they were navigating that river at the same time the Richland, and Kershaw were on the Congaree. Mr. Villipigue, the agent of the defendants, and by their authority, on the 15th November, published an advertisement in the Camden Journal, stating that arrangements had been made to insure all the produce shipped on board those boats without any extra charge to the shippers. In no case of the boats running from Columbia, was insurance effected on the cotton until after the fire. The Richland, a steamer' belonging to the defendants, left, I think, on the 12th of December ; her freight was at 75-100; the Rail Road, on the morning of the 13th. came down to 75-100 ; the charge on it had previously been $1 per bale. To shew how rapidly a boat loaded with cotton would burn, Mr. Dunning, from Savannah, who had been the President of a steamboat company, said he was standing on the wharf at Savannah, when a steamboat came to ; he heard the cry of fire, and saw the smoke up the river; he stepped on board the steamer, and ordered her to proceed up the river, which she did; as they turned a point, they discovered a tow boat cut loose and floating down the stream; every bale of cotton was fully enveloped in flames, This was in twenty or thirty minutes from the time he heard the cry of fire.
    “ The case was submitted to the jury under instructions to the following effect. The rule was stated as to the general liability of carriers ; but that the parties had the right to make any exceptions to the carrier’s liability which they pleased. That here the contract had made the exception. It was necessary, in giving construction to the contract, to say what was meant by unavoidable accidents of navigation and fire. The unavoidable accri dents of navigation meant, 1 thought, only such as could be classed and considered as actus Dei, as running upon an unknown rock or snag, in the usual boat channel. What was meant by the exception as to fire, was, perhaps, more difficult. If the words, unavoidable accidents, were to be considered as qualifying the word fire,- then it might be difficult to say that any accident, resulting from fire, which was not attributable to the act of God, would excuse. But I thought, construing the contract by the sub- 1 ject matter, it was fair to conclude that it was intended by ; the exceptions to exempt the owners of the boat from loss, ! if the freight was destroyed or injured by fire originating j without negligence from the use of that element in gene-1 rating steam to propel the boat. If the fire originated' otherwise, then the defendants would he liable. The jury were told that the burden was on the defendants to shew that the loss was within the exception ; when that was shewn, they were not liable, unless negligence was shewn on the part of those having charge of the boat, and here the burden was on the plaintiffs. This part of the case presented a naked question of fact. The facts in evidence . were carefully arrayed, summed up, and presented to the jury. They found for the defendants.
    
      “ The plaintiffs appeal, on the annexed grounds.”
    1. That the defendants were bound to shew that the fire by which the plaintiffs5 cotton was destroyed, was the result of unavoidable accident; and not the slightest proof having been offered of the oiigin of the fire, the plaintiffs were entitled to a verdict.
    2. That the verdict is without evidence, and against the charge of the • Judge.
    
      Walker, for the plaintiffs.
    In cases of this nature, the question usually is, whether the loss is within the exception ; and so the shippers contend in the present suit. As a general rule, the onus probandi is upon the carrier. Story on Bailm. 528. It is argued, however, that the receipts in these two cases have transferred the onus to the shippers.
    Unavoidable accidents of navigation, inevitable necessity, dangers of navigation, perils of the sea, are synonymous phrases, having, by judicial construction, a definite meaning. The receipts in both of these cases are, in construction, the same. Rice R. 116; Jones on Bailm. Theob. Ed. App. 7. Their effect is to excuse the carrier from losses which he could not prevent; but the fact, that such words are inserted in the receipt, does not give them any efficacy. For the law would imply them for the pro-lection of the carrier. Story, 549; 1 Connect. R. 487; 12 lb. 410. And as to them, the onus is, unquestionably, on the carrier. But as to “ fire,” “ dangers of fire,” a different rule is supposed to prevail. Yet this is, like the dangers of navigation, only an exception. If the loss occurs by dangers of navigation, the carrier must shew that they were irresistible; so must he if the loss be by fire. It is not a sufficient answer to the shipper who demands his goods, to say they were burnt, or sunk in the river. He has a right to know how they were burnt or sunk. The carrier is bound to shew that they were lost without his default. “ And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c. and yet doing it in such a clandestine manner as would not be possible to be discovered.” Coggs vs. Bernard, 2 Ld. Raym. 909; Dud. 162. In the latter case that the onus prohandi was on the carrier, was admitted by the character of the defence, and assumed, without comment, in the opinion of the court, to be the true rule of law.
    By the common law, the carrier was responsible even for accidental fires. 2 Kent, 602. And this rule was enforced in Patton vs. Magrath; and seemingly in reference to the opinion of the court in that case, the defendants have inserted in their receipts the words “ dangers of fire excepted,” in order to make a custom, which they failed to establish, a part of their contract. They have, however, misunderstood this opinion; for at p. 163 it will be seen that the court meant that, by the insertion of this exception, they might excuse themselves for losses occasioned by the use of fire as a motive power, but not for losses either by negligence or wilfulness. By this they remove their liability for losses by steamboat fire, but do not entirely discharge themselves from losses by any fire, as is contended for on the other side. But whilst the receipts have added another exception to their liability, it has not altered the rules of evidence. Whether the exceptions be by implication of law or special contract, still the onus probandi is unchanged.
    This is the only safe construction. A carrier who attempts to limit his common law liability, is bound to make the extent of his limitation plain, clear and free from ambiguity. 2 Kent, 607, note, c. He must make it plain that the word “ fire” was intended to excuse him from losses by any kind of fire, whether occasioned by inevitable accident, negligence or wilfulness. Unless he can shew that such is the contract, then the common law rule ought to apply — he should be excused only from such losses by fire as were unavoidable. It would be absurd to suppose the shippers have agreed that the carrier shall have the right to bum the cargo, or negligently permit it to be burnt. The contract could only have been that the carrier should be excused if the fire was unavoidable — not if negligent or wilful. But he must prove that it was unavoidable. This he and his servants alone can do. It is in his power, and it is his interest, to shew the fact — not so with the shipper. The latter would in all cases find, in the servants of the carrier, only witnesses against him. To place the onus upon him, would be to deny him all remedy. The greater their violation of duty, the more certain it is that they would be silent. Would they confess that the vessel was burnt by negligence, or for the purpose of purloining the cargo ?
    Many learned Judges of England have regretted that the courts have sanctioned any special acceptances, limiting the common law liability of carriers. In New York and ether States, they have no such rights. Story on Bailm. 553. It is difficult to discover any reason for holding that the carrier may take away a part, but not the whole, of his liability. This, however, Story, 548, declares that he cannot do. In this State, it is true, a special acceptance may be made, but not an acceptance, if Story be correct, which entirely destroys his liability. But this is the construction contended for by the carriers in this case. They claim to be excused from losses by any fire.
    
      McCrady, for the defendants.
    It is well settled in this State and in England, that it is lawful for carriers to make special contracts, limiting the responsibility which the common law imposes on them. In our own State, the authorities on this point are, Dud. 162 ; 2 Sp. 197; Rice, 116. In New York, the rule, it is true, is different, but in England, it “ is settled beyond any reasonable doubtStory on Bail. § 549. It is said in one of the New York cases, that this rule has been adopted in England since the revolution, and is not the common law. This is a mistake. The following authorities, to wit. : 4 Oo. 84; 1 Ventr. 238 ; 1 Stra. 145 ; Carth. 485 ; 4 Burr. 2298 ; 1 H. Bl. 298, shew that special contracts may be made at the common law, and that the rule existed long before our revolution. The following are cases in which the liability was recognized as limited : 1 T. R. 27; 8 T. R. 531; 3 Taunt. 264, 271 ; 4 Camp. 40 ; 5 Bing. 212. In 5 East, 507, 513, the question was made, whether such contracts were lawful, and it was held that they were.
    The contract of a carrier, as it stands at the common law, unlimited by any special contract, consists of two parts. 1st. The carrier is regarded as a bailee, and his contract belongs to that class of bailments which is known as lo-catio operis faciendi. 2d. He is an insurer, and responsible for all injuries, except only those arising from the act of God, or the enemies of the country. The defendants here contend, that according to the just construction of their contract, considered in reference to the law, so far as the dangers of navigation and fire were concerned, the common law responsibility was superseded by the special contract, and the defendants were liable only as bail-ees, and not as insurers ; that is, they were only bound to use ordinary diligence in the care and preservation of the property, and were not liable for losses by accident, not resulting from negligence. The words of the contract, in one case, are “ unavoidable accidents of navigation and fire excepted,” in the other, “ dangers of fire, and navigation only excepted.” These contracts were doubtless intended to mean the same thing. His Honor, on the circuit, ruled that fire meant such fire as is incident to the use of steam as the motive power of the boat — and for fire originating from any other source, unless it was the act of God or the enemies of the country, the defendants were liable. This view, the defendants contend, is wrong. Dangers of navigation, they say, include' fire originating from its use as necessary to the motive, power of the boat, and “fire,” in the contract, if it does not include any firej no matter from what cause originating, is mere tautology. Suppose such an exception was contained in the bill of lading of a common pole boat, would it not be held to include any fire ? and why should it be held to have a different meaning, when found in the bill of lading of a steamboat 1 Abb. on Ship. 215.
    Supposing, then, that the defendants are liable only as-bailees, and not as insurers for losses arising within the' exceptions, and that the word “ fire” in the bill of lading means any fire ; the next question is, on whom is the onus of shewing that the defendants were guilty of negligence. The defendants contend, that when they have shewn that the loss was by fire, they have done all that the law requires of them — they have brought themselves within the exception — the onus then lies on the plaintiffs to prove negligence. Story on Bail. § 573 ; 2 Eng. G. L. It. 371 ; 9 lb. 10 ; 2 lb. 301 ; 4 Camp. 22; 11 Eng. C. L. R. 245 ;■ 2 Exch. R. 18 ; 1 lb. 107.
    Bailey, for the plaintiffs.
    Hunt, for the defendants.
    The law depends on the admitted facts. The first fact is, that the contract, in the first case, has this exception, “ dangers of fire and navigation only excepted ;” in the second case this exception, “ unavoidable accidents of navigation and fire excepted.” The next important fact is, that the cotton was burnt at Singleton’s landing, and no one has been able to tell how the fire originated; that is, the origin of the fife is unknown. These simple facts give rise to the question, are the ‘ carriers liable, or do the exceptions protect them ?' What questions other facts might raise, only perplex this enquiry; we must apply the facts of these cases to the settled principles of law. It is not denied, that the policy of the old common law was rigid, and that nothing but the act of God and the public enemy, would excuse a common carrier; and the fact of non-delivery, put the carrier to the proof of the loss by the exceptions. It is also admitted, that one who carries for hire, is a common carrier. But this ancient rule has beeen found inconsistent with the commercial economy of modern times. The division of risk and responsibility is indispensable. Thus, owners insure against loss by inevitable dangers of navigation ; and what is there in the nature of the thing to prevent one, who is willing to carry for hire, to insure himself against those risks which the common law imposes upon a carrier? An honest, careful carrier may be ruined, without any designed error on his part. The loss by fire defies, more than any other, proof of its origin. It may overwhelm the most careful carrier. To insure himself, then, against all but wilful misconduct, is a clear right. The argument that it is against policy to suffer a carrier to protect himself against loss, other than designed misconduct, is not consistent with good sense. The owner, with eyes open, agrees to pay the carrier for the labor of transportation, and agrees to take on himself the hazard of all those accidents which may happen to any man, and yet not be strictly actus Dei. Who shall say him nay 1 Volenti non fit injuria. This, then, establishes the right of parties to divide the risks of transportation as they please. The public have nothing to do with it, if the general rule is left undisturbed. Then let us apply the facts. Dangers of fire were expressly and voluntarily excepted from the dangers to which the carrier was to be liable. This made the crew, captain, &c., pro hac vice, the agents of the owner, and not the carrier, by his own agreement; and who shall gainsay the right of the owner thus to undertake ? .If this position be correct, that an agreement to exempt the carrier from loss by fire is valid, it follows, that the simple fact that the cotton was burnt, exonerates the carrier. This does not, by any means, prevent the owner from proving, by testimony, that the fire originated from causes ■ implicating the carrier in such a degree of negligence as will cast on him the responsibility of the loss. The absence of such proof leaves the fact of the fire unexplained, and the terms of the contract simple.
    But the contract, in the view of the circuit Judge, should be interpolated, and that “ fire” means “steamboat fire”— fire used in propelling the boat. The first answer is, that the parties, if they meant steamboat fire only, Could have said so. But as practical men, they knew better. There is nothing in the fire of a steamboat which enables one to distinguish it from any other fire. If it be meant that you must shew where the spark came from that kindled the fire, the witness would just put it out, and there would be an end of it. But fire usually lies dormant for some time, especially in cotton, and breaks out unexpectedly. Whether it came from the furnaces, or any other source, must remain unknown — so that, if the exemption was confined to “steamboat fire,” the carrier could never bring himself within the exception ; for unless some one saw where the fire came from, he could not prove it was steamboat fire — and if he did see it and did not put it out, it would be bad faith, wilful negligence. It is supposed, that as the fires were not burning when the flames burst forth, it could not be steambeat fire, but this is an error. A spark may be blown from the chimney between the bales, and there smoulder for hours, after the fires in the furnaces have been extinguished, when a change of wind may fan it into a flame, and then the conflagration becomes rapid and uncontrolable. In this case, the fire may have caught from the engine in coming down, and broke out at the landing; this is probable. But if steamboat fire must be positively proved, then the carrier would lose the advantage of his express stipulation. But there is no authority in law or sense to qualify a plain stipulation. Exemption from “ fire” means all fire, unless special fire is named. The'fire which burnt the cotton, had no peculiarity to distinguish it. We know, from cases, that the origin of fires is often altogether unlooked for. This very uncertainty was the reason for exempting the carrier from losses by fire, without qualificrtion. It required no other proof, than the fact of the cotton being burnt, to exempt the carrier. This settles Swindler’s case. The plaintiffs gave no evidence beyoud the bill of lading, and the defendants proved loss by fire ; here the case ended, and the jury found for the plaintiff, because the defendant did not prove it was steamboat fire, although the word of the contract was only fire.
    This plan of lessening' the liability of the carrier, is eminently useful and politic. The celebrated case, in which a carrier was made liable for a conflagration which occurred at a distance from where the goods were prudently stored, produced legislation to remedy such great hardship. But in cases .of carriers on our rivers,it would be ruinous, if the liabilities of the carrier could not be limited, as it would drive all solvent carriers put of the business. The rule of evidence is the same in this as in other cases. The exception is not so impolitic as to change the rule of evidence. It is a valuable alteration of liability, by which respectable men consent to take all. the risks, not expressly excepted ; and the excepted risks .can be insured against, by a distinct class of men, who devote their capital to undertake these risks — thus distributing the dangers of commerce, so as to render them less overwhelming. The general rule of evidence is, that he who alleges, must prove. We aver the exception of losses by fire. We prove loss by fire. Then the owner alleges that steamboat fire was meant — surely, he must prove this qualification, either by usage or other evidence. The casualties which result from the ordinary negligences of such subordinate agents as must be employed in certain modes of transportation, insurers are willing to assume for a premium, and the owner may become his own insurer, if he so stipulates. The presumption is, that when a steamboat gets on fire, it results from her furnace fires.
    But the two simple propositions which arise, are, 1st. on the first case, does the word fire include fire from any unknown cause? if so, when it was proved that the cotton was burnt, the carrier was discharged, unless some default on his part was made out by proof; if so, we are entitled to a new trial in this case. 2d. In the second case, the case went to the jury, under full evidence, with the charge of the Judge on the law in favor of the plaintiffs, and they hare found for the defendants, and the court are concluded by the verdict.
    Petigru, for the plaintiffs.
    
      Memminger, for the defendants,
    admitted that the receipts meant the same thing. He would consider Chambers’ case first. There is nothing in his case on which a new trial can be claimed. The presiding Judge charged upon the law, just as the plaintiffs desired. The question of negligence has been passed upon by the jury. They have decided that the fire originated in such a way as brings the loss within the exception, and that there was no negligence. There was certainly evidence on which the verdict can be supported, and it is, therefore, conclusive. This court would interfere with the functions of the jury, if they were to set aside a verdict, merely because, in their opinion, the weight of evidence was against it. Ad questionem facti non respondent judices.
    
    In Swindler’s case, he would make three propositions. 1st. A special acceptance makes the contract, so far as the exceptions are concerned, a simple bailment. Locatio operis mercium vehendarum.
    
    2d. That the onus of proving negligence is on the plaintiffs.
    3d. That the term “ fire” must be construed to include any fire, and not merely fire from the furnace of the boat.
    1st. The contract of a carrier consists of two parts. 1st. He is an insurer under the custom of the realm. 2d. He is a bailee, and his contract is styled locatio operis merci-um vehendarum. The effect of the special contract, is to j! extinguish the liability of the carrier, as insurer, so far as / the losses coming within the terms of the exception are j concerned, and to leave him liable, as to such losses, only •[, for negligence. As to all other loses, except those arising ¡ from the act of God or enemies of the country, he remains liable, under the custom, as insurer. Story on Bailm. 457. In Garnett vs. Wiliam, 7 Eng. C. L. R. 23, notices, says Best, J. only protect the “ carrier from that responsibility which belongs to him as an insurer.” In Riley vs. Horne, 15 Eng. C. L. R. 424, Best, J. said that the law has added to the responsibility of a carrier the liability of an insurer, and notice protects him from such liability, leaving him responsible as bailee. He further cited, and commented on, Brooke vs. Pickwick, 13 Eng. C. L. It. 404; Latham vs. Rutley, 9 Eng. C. L. R. 10 ; Maving vs. Todd. 2 Eng. C. L. R. 301; 2 Kent, 606.
    2d. On whom is the onus ? The proof of negligence, says Story, § 410, is on the bailor. To the same effect is 2 Kent, 587. In Harris vs. Packivood, 3 Taunt. 265, it was’held that the proof of negligence lay on the plaintiff, where there was notice. Marsh vs.. Horne, 11 Eng. O. L. R. 245; Riley vs. Horne, and Story on Bailm. § 573, are to the same effect.
    3d. Dangers of navigation include dangers of fire, construed upon the principle per subjectam materiam. What, then, is meant by “fire,” in the contracts'? If not all fire, it is superfluous, because fire from the steamboat has been already provided for. Where a vessel is navigated by air, “ dangers of navigation” mean such accidents as are incident to the use of air — where by fire, then such accidents as are incident to the use of fire. But the court is not at liberty to construe the contract as was done on the circuit. It was there done by reference to a supposed usage, and this was letting in extrinsic evidence to explain a written instrument. This is not competent in the case before the court. The term fire is not ambiguous. It has a well ascertained meaning. It needs no translation. Johnson’s Dictionary need not be referred to, to shew its meaning; it means fire, whether arising from a lucifer match, a steamboat furnace, lightning, or any other cause. He cited Stark, on Ev. part 4, 1036; Gordon vs. Rimmington, 1 Camp. 123 ; Abbott on Ship. 258 ; 2 Marsh, on Insur. 790.
   In the case of Swiddler vs. Hilliard and Brooks,

Evans J.

delivered the opinion of the court as follows.

The first ground in the notice cannot be sustained. One who does not usually exercise the employment of carrying goods for hire, but only in a single instance does so, will incur no responsibility beyond that of an ordinary bailee for hire, and will not be answerable for any loss, by means against which he could not have guarded by ordinary diligence. But in addition to this stipulation for diligence, arising from his undertaking to carry goods, a common carrier is, by law, an insurer of all goods committed to his charge, against all losses except those which arise from the acts of public enemies, or such causes as could not happen by the intervention of man — as storms, lightnings and tempests. The evidence, we think, puts the defendants in this position. They were public carriers for hire— that was their employment; and they must take the risks and incur the liabilities of their station, unless they are exempted by their contract, of which the bill of lading is evidence. Three questions have been argued in this court.

1. Can a common carrier limit his liability by a special agreement.

2. How far is the liability limited, in this case, by the bill of lading.

3. On whom does the law cast the burthen of proof.

These I will consider in their order.

It would seem, from the authorities cited in the argument of this case, that a carrier cannot, by notice, and of course by agreement, divest himself of his liability for negligence or want of care ; and it would seem, from the recent cases of Hollister vs. Nowlen, 19 Wend. 234, and Cole vs. Goodwin & Story, 19. Wend. 251, that in New York a carrier is not. allowed, by a special agreement, to lessen the liabilities ijvhich the common law attaches to his employment. But I think, notwithstanding what is said in those cases, the contrary opinion has prevailed in England for many years pasC — that it is the acknowledged law in most of the American States, and is recognized in this State in the case of Patton vs. Magrath & Brooks, Dud. 159. I am wholly unable to see any reason why, on this, as on most other subjects, men may not be left to take care of their own interests. There is no difference of opinion in the court, and I deem it unnecessary to say more on the subject.

The next question is, to what extent have the defendants limited their liability at common law, by their bill of lading," which, being produced in evidence by the plaintiff, must be taken as the contract of the parties. The words are “ dangers of fire and navigation only excepted.” What does the word “fire,” taken in this connection mean? Does it mean fire from lightning, or fire originating from the steamboat furnace, or fire in its most comprehensive sense ? In general, I would say that where a word is inserted in a contract, by way of limiting a liability, something more was meant than that which, by law, was already exempted; and if we restrict the term to fire from lightning, or mere physical agency, the insertion of it in this bill of lading was wholly unnecessary — because, by law, the carrier is not liable for fire originating in this source. But an argument favorable to this construction is deduced from the fact, that with the word fire, is associated the “ dangers of navigation,” which it is supposed mean nothing more than those dangers of navigation which in law are set down to inevitable accident, or, as it usually called, the act of God. As it is unnecessary, I shall express no opinion as to the meaning of these words. If this be the necessary interpretation of them, of course they can receive no other construction ; but it does not follow that we are to restrict the word fire to a limited sense, when it usually has a more enlarged signification — words in construction are to receive their usual signification, unless it appears that they are used in a different sense. In common parlance, fire comprehends every kind of fire, without reference to the physical agencies by which it is produced ; whether it be communicated by a torch, or lightning, or the furnace of a steam engine, or arise from self-combustion, or any other cause. By the statute 26 Geo. 3, c. 86, it is provided that the owner of a ship shall not be liable for a loss sustained by any fire happening on board such vessel.” In Abbott on Shipping, 259, it is said “ in this clause the master is not mentioned, and therefore it may be doubtful whether his responsibility is in this case removed by the statute ; but the insertion of the word fire in the modern bill of lading, has certainly removed it.” This shews pretty clearly, that the insertion of the word fire, in bills of lading, was common when this work was written, and in the opinion of the author included any fire, without reference to the cause which produced it.

But it has been said, it must mean only such fire as originates from the steam engine — the propelling power used on this boat — because, in any other sense, it would be without meaning, as fire in wagons, ships, or river boats, other I; than steamboats, could never occur without negligence, from i which it seems no special contract can exempt a carrier.' | I admit that in such cases, fire could seldom occur, where ordinary prudence was used to prevent it; but cases may arise, in which there would be no' negligence in the carrier. Most of the cases in which a carrier can claim exemption from liability, under an exception such as is contained in this bill of lading, will be cases of steamboats; yet I do not see any reason for restricting the generality of the term, to' that particular kind of fire. It seems to me$ therefore, that under a bill of lading like that given in this case, is included all such losses as have happened by fire, without fault or negligence on the part of the carrier — * but in the same watchful spirit by which, at common law, a carrier was made liable for all losses except those which arose from the act of God, or the public enemies, I would hold him to strict proof of diligence and care, in avoiding any loss to the owner of the goods, by so dangerous an element as fire.

I come now to the consideration of the last question made in this case. On whom does the onus probandi lie ? The defendants rested their case on the proof merely that the cotton was burnt; thus bringing themselves within the letter of their bill of lading; This, they contended, was sufficient, unless negligence and want of care was proved on the other side. Care and diligence are essential ingredients in the contract of every carrier,whether his contract be general or limited, and I have already had occasion to say that the exception in the bill of lading means such fire as that care and diligence which they were bound to use could not avoid. In most cases of bailment, the bailee is chargeable, not by the delivery of the goods, but by reason of negligence and want of care, and in such cases it may be that negligence must be alleged and proved; but even in such cases, I should think, the bailee should be held to proof of the facts and circumstances under which the loss occurred, as was said in the case of Clarke vs. Spence, 10 Watts R. 335. But in relation to common carriers and inn-keepers, it is very clear that the owner is bound to prove no more than that the goods were delivered to the carrier, and that he had not delivered them to the consignee. The onus of proving what will excuse his non-delivery, must be made by the carrier. Story on Bailm. § 529. This is true, beyond dispute, as to carriers generally, under the common law, but the argument to take this case out of the general rule is, that the exception of “ fire” in the bill of lading changes the general into a special liability. This, to some extent, is true. The carrier’s liability is diminished to the extent of the exception, but his character is not changed. He is still a common carrier, so long as any of the incidents and liabilities of that employment remain. He is a public carrier for hire, and the exception in the bill of lading does nothing more than excuse him where the loss has happened by fire without fault or negligence on his part. If, in the bill of lading, losses by the “ public enemies” and inevitable accidents were excepted, that would not cast the burden of proof on the plaintiff that the loss did not occur from these causes ; and I am unable to perceive any reason why a different rule should prevail, where any of the risks of the carrier are excepted by the contract of the parties. Judge Story, in his treatise on bailments, deduces a somewhat different conclusion as the result of the authorities at § 573, but in the next section he says that “in cases of special limitations of responsibility by notice, or otherwise, the carrier must prove that the loss has arisen from other perils, against which he did not insure;” and in the cases of bailments wherein he says the onus is on the owner, he states it as the preponderance of authority, and not as undisputed law. At § 454, he quotes, without disapprobation, what was said in the recent Pennsylvania case of Clarke vs. Spence, in relation to the proof in the case of wharfingers and ware-housemen, in which Rogers, J. said, “ to throw the proof of negligence on the bailor, it is necessary to shew by clear, satisfactory proof, that the goods were lost, and the manner they were lost. All that the bailor has to do in the first instance, is to prove the contract and delivery of the goods, and this throws the burden of proof that they were lost, and the manner they were lost, on the bailee, of which we have a right to require very plain proof.” This, it seems to me, is in conformity with reason and plain sense, and what was said by the learned counsel who argued this case for the defendants, that the rules which are to govern contracts of such extensive use, should be plain and founded on well settled principles. The general liabilities of common carriers are very well known, both to the profession and those who engage in that employment; what shall be proved, and by whom, is equally well understood. All the analogies of the law lead to the conclusion that the burden of proof lies on him who should best know what the facts are. If the entire burthen of proof of negligence be thrown on the bailor, as is contended for, how can he make it ? The loss, and the manner of the loss, are frequently known only to the carrier and his servants. The owner knows nothing about it, and if the proof lies on him, he, of necessity, must resort to the agents and servants of the carrier; the very persons, generally, by whose negligence the goods have been lost; whose feelings, wishes, and interests are all against the owner, and on the side of their employers. In New York, in the case of Platt vs. Hibbard, 7 Cow. 500, even in the case of a depositary for hire, it was held that the onus was on the bailee, to shew that the injury did not happen in consequence of any neglect of his. The same opinion seems to be entertained in Pennsylvania, as appears by the case of Clarke vs. Spence, before quoted; and although authority may be found for a contrary doctrine in English cases, yet I doubt if, in any of these, the bailee ever rested his case, without proof of the facts and circumstances attending the case, so as to enable the jury to decide on the fact of negligence. In the great commercial State of New York, it has been decided, on considerations of public policy, that a carrier cannot limit his responsibility as an insurer by giving notice, and, of course, by a special contract; Cole vs. Goodwin. This court is not disposed to lay down so rigid a rule as this, but whilst we extend to the carrier the privilege of limiting his liability, by adding to those exceptions for which the common law excuses him, we must not change the general law in relation to the onus of proof, so as to put the owner entirely at the mercy of the carrier and his servants, which, I apprehend, we should do, if we were to hold that proof that the goods were burnt, shall excuse the carrier, unless the owner can prove that the fire originated in negligence, which he could not do in one case out of a hundred, Why, in an ordinary case against a carrier, is he bound to prove that the loss arose from public enemies or inevitable accident % The reason is given with great perspicuity by Best, C. J. in Riley vs. Horne, 5 Bing. 217. “ When goods are delivered to a carrier, they are usually no longer under the eye of the owner; he seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be una* ble to prove either of these causes of loss ; his witnesses must be the carrier’s servants, and they, knowing they could not be contradicted, would excuse their master and themselves.” In Roberts vs. Turner, 12 Johns. R. 232, Spencer, J. said, the carrier “ is held responsible as an insurer of the goods, to prevent combinations, chicanery and fraudand in Hollister vs. Nowlen, Bronson, J. said, if the remedy of the owner depend on proof of negligence or fraud, he must make out his right to recover “ by calling the very men whose recklessness or frailty has occasioned the injury.” All these reasons apply with equal force to a case of limited liability. In cases of fire, if the proof lay entirely on the owner, he would labor under the same difficulties, and would have to resort to the same questionable sources of proof, and would labor under the disadvantage that he could not impeach the witnesses, although their characters were ever so bad, as they would be his own witnesses. It was noticed in the argument, that the plaintiff had declared on the contract, and alleged that the goods were lost by the negligence of the defendants. I do not think this varies the case. In Ch. Pl. 2 vol. 365, there is a precedent of a case against the master of a ship, on a bill of lading, in which was inserted the exception “dangers of the sea.” These words are well understood, and mean nothing more than storms, tempests, and what is included in the idea of inevitable accident. The declaration, after stating the delivery, according to the bill of lading, goes on to state the non-delivery, “ although not prevented by the dangers of the sea,” and that the goods were lost by the mere carelessness, negligence and want of care of the defendant. This is the only precedent in Chitty against a carrier in assumpsit on a bill of lading. No one, I suppose, would infer from this that the owner was bound to prove that the goods were not lost by the dangers of the sea.”

Upon a full examination of the principles on which this case must be decided, I am of opinion that the proof that the cotton was burnt, was not sufficient for the defendants. They were bound to shew, not only that the cotton was destroyed by fire, but the circumstances under which the destruction took .place — that the jury might judge whether the accident was unavoidable, or the effect of negligence and want of care. This decision is in accordance with the French law, as laid down by Pothier, and with Scottish law, as stated by Bell, referred to in Story on Bailm. § 411.

The only particular in which, it seems to me, there was error in the charge of the circuit court, was, that the word “ fire,” in the bill of lading, was restricted to fire arising from the steam engine ; but this error did not affect the verdict, as no evidence whatever was given as to the origin of the fire. Upon the evidence, we think the verdict was right, and the motion is dismissed.

Wardlaw, J. concurred.

In the case of Chambers & Co. against Hilliard & Brooks;

Evans, J.

also delivered the opinion of the court, as follows:

In this case, the exception in the bill of lading was, “unavoidable accidents of navigation and fire excepted.” The words unavoidable accidents,” must be taken in connection with both the substantives, navigation and fire, which, in the view taken in the case of Swindler against the same defendants, would mean the same thing, without the additional words. In this case, the defendants went into evidence of the facts and circumstances attending the burning of the cotton. The jury heard all that could be proved by both parties, and, by their verdict, have exculpated the defendants from the charge of negligence. I do not perceive that the verdict is unsupported by the evidence, to such an extent as to authorize another trial, and the motion is therefore dismissed.

Wardlaw and Frost, JJ. concurred.

O’Neall, J.

In these cases, I concur in the result, but for reasons different, in some respects, from those stated by a majority of the court. On the part of myself and the member of the court concurring with me, I will state, very-briefly, our views.

It is true, beyond all doubt, that the defendants are to be regarded as common carriers, and that their contract has not divested them of that character ; for as the owners of the steamboat Kershaw, carrying cotton for hire, between Columbia and Charleston, on one of our navigable rivers, they could have no other position. The contracts with these plaintiffs merely added to the exceptions in their favor, of the act of God and the enemies of the ■country, “ the dangers of fire,” for the dangers of navigation mean no more than what have been previously allowed as the act of God.

It is true, too, I have no doubt, that the carrier cannot excuse himself, under any view of that exception, without shewing the manner of the loss, so that the court may know that it was an accident, at least, against which the care of a reasonable man, in the charge of his own goods, •could not guard. But to have the cases to rest upon that view, is, we think, not approaching the important principle involved. It is what is meant by “ dangers of fire and navigation,” in one receipt, and “ unavoidable accidents of navigation and fire” in the other,

Both mean precisely the same thing; they both mean to exempt the carrier from fire, which, as to him, was unavoidable. What that is, is the difficulty. Taking the words in connection with navigation, it would seem that if dangers, or unavoidable accidents of navigation, mean ac-tus Dei, and no more; then dangers of fire, or unavoidable accidents of fire, would also mean actus Dei. If we had nothing to guide us, but the fact that we were considering a loss by fire, arising out of such a contract, by a carrier, as those to which I have alluded, we might find it very difficult to avoid the construction before indicated. But the case of Patton vs. Magrath & Brooks , Dud. 159, gave rise to the very exception before the court. In that case it had been argued, that the navigation of steamboats being caused by fire, made them so liable to destruction by that element, that this danger ought to be classed as ac-tus Dei. In that case, my brother Richardson, speaking for the court, said, in reply to that argument, “the loss by fire, which, occurring in another boat, renders the owner liable, will, in like manner, make liable the owner of a steamboat propelled by fire.” In another part of the same opinion, speaking of the exception which had been attempted to be set up, he says, need I remind the owners of steamboats, that they have but to give public notice that they will not be liable in a certain class of cases, and, to deceive no one, give no other bill of lading but with the express exception written, 1 not to be liable for accidents by fire,’ and they make the desired exception.”

How contracts containing this very exception, made after this opinion, can be construed to give any larger meaning to it than is indicated by its terms, is what I cannot comprehend. To extend it, would, beyond all doubt, give a meaning not entering into the minds of the contracting parties. They are to be understood as contracting in reference to the law. When the plaintiffs’ receipts are read in connection with Patton vs. Magrath & Brooks, no one can hesitate in believing that the parties intended to say, the boat owners shall not be liable for a loss resulting from the burning of the boat by fire unavoidably communicated to her cargo by fire originating from that used in propelling the boat. This seems to us a just construction of the contract arising from the subject matter. The vessel to carry is a fire boat, the thing to be carried is cotton ; an inflamable article is thus put in proximity to fire !

Well might the carrier say, my boat makes it dangerous to carry cotton; with the guards I have provided, I think it comparatively safe ; still I am not willing to be bound as an insurer. The consignor might very well conclude, the danger of burning by the element used in propelling her, is so carefully guarded, I will run that risk. That this risk, and this risk alone, would present itself to the minds of the parties, seems to me too clear to admit of doubt, and when fire was to be excepted, the danger from the boat herself would most naturally be that intended. If “any fire” had been the exception, the consignor might very well have said, you ought to have no special immunity from any except that which may be unavoidable, arising from the character of your boat.

In Abbott on Shipping, 258, is to be found 26 Geo. 3, c. 86, which exempts shipowners from a loss by reason or means of any fire happening on board the ship or vessel. The master is not mentioned, and therefore it was doubted whether the statute could exempt him. But by the bill of lading in England, is since generally excepted “ the act of God, the King’s enemies, fire, and all and every other danger and accident of the seas,” &c. and thus the master has been protected as well as the owner. For the bill of lading is construed by the law, which is an exemption from any fire, and of consequence, no matter how the ship is burnt, the carrier is not liable. But here, fortunately, we have no such provision. On the contrary, the only thing in the shape of law, pointing towards the exception, is the decision in Patton vs. Magrath & Brooks, and that was intended to advise the boatowners to guard by contract against a loss which might arise from the unavoidable burning of the boat by her own fire. There is no authority which compels us to adopt a construction of the contract manifestly against the sense of the parties. The policy of trade, in this instance, as well as in the original cases against carriers, ought to induce us to hold them to a strict accountability ; for if it be once established that a carrier, under a contract like the present, is to be exempted by shewing that he used all the care which a prudent man could, and yet his boat was burnt, the result will be that he will be exempted from liability. For the very persons by whose negligence the fire may have originated are to be the witnesses, and they are very sure not to condemn themselves. But place the burning of a steamboat by her own fire done under the exception and along side of the act of God, and the result will be that the consignor will have a chance of establishing the carrier’s liability out of his inability to shew that the fire by which the boat was burnt originated from the fire used to create steam, her propelling power.

Give to the exception the construction for which I am contending, and there is a certainty in the principle by which the liability of the carrier is to be tested. Adopt any other and there is no rule in the matter. Every thing depends upon diligence, a diligence to be proved-by the boat’s crew. It may be therefore at once assumed, as settled, that whenever a steamboat is burnt, the consignor must bear the loss.

Take the construction which the court gives and the result will be that no one will ship on a steamer, for then the dangers of loss without compensation are so multiplied, that nothing save necessity could induce a shipment by such a boat. On the other hand, if the loss is limited to her own fire, the shipper may be willing to encounter this risk, on the ground that in the construction of the boat, every means which the ingenuity of man can devise have been resorted to, to protect her from this very danger.

I am hence persuaded that the true construction of this exception was given on the circuit, and that in Swindler’s case, there beiiig no .proof which could bring the defendants within the exception, the jury were right in finding against them. So in the other case, as the jury had the facts before them, and from them it is possible that the boat was unavoidably burnt from her own fire, (although I confess I should not feel myself at liberty so to conclude) I am reluctantly constrained to say that the verdict in it ought also to stand.

Richardson, J. concurred,  