
    COX, BRAINARD & CO. vs. FOSCUE.
    [.ACTION AGAIS.ST OWJSSIÍS OP STEAMBOAT POR NEGLIGENCE.]'.
    
      of steamhoatmep-} as common earners, in matter of transhipment' of freight. — A transhipment >of freight is only justifiable in cases of necessity, aud, if made.in the absence of such necessity as constitutes a legal excuse, subjects the carrier to liability for the subsequent loss of the freight on the vessel to which it is transferred; and the mere grounding of a si eamb: at on an inland river, from which she could relieve herself, with safety andcoB.ven.iencef.by temporarily .placing a part. of lier cargo on tlie bank, and afterwards take it on board again. ■ and finish her voyage, does not constitute such legal excuse.
    Appeal from the City Court of Mobile.
    "Tried before the Hon. Alex. McKiNSTRY.
    "'This action was brought by F. F. Foscue, against the i -appellants, as common carriers, to recover damages for the •loss of two bales-- of cotton, which were shipped by the plaintiff on board the defendants’'steamboat Elisa- Battle, consigned to Goode & Ulriek at Mobile, and which were never delivered. -'.The case was before this court at its January term, 1859, «when the judgment of the city court was reversed, and the-cause remanded. — See the report in 33d Ala. 713. - On the second trial, as appears from the record, •••the defendants pleaded the general issue, and a special plea averring', in substance, that the cotton was lost by “the dangers of the river and of fire,” within the meaning of ■ the exception contained in the bill of lading-; and issue ' was joined on each of these pleas. It appeared from the evidence adduced on the trial, that the plaintiff's cotton. '• was shipped on board of the defendant's’ boat, E lisa Battle, ■■-at Face’s lauding on the Tombeekbe -river, on the 20th 'November,-1S55..J'that the bill of lading contained the usual exception as’to “dangers of the river and fire that “.the Elisa Battle, -while on her voyage down the river, ran aground on-Groom’s bar, and,••-•in order to lighten her, a part of her .cargo, including the plaintiff’s cotton, was transferred to the Jenny Bealle, another boat belonging- to the defendants, which passed while the Elisa Battle was - on the bar-,* that the Elisa Battle, after being thus light* ened, continued her voyage down the river, without taking ■ back any part of her cargo from the Jenny Bealle ; that the latter boat afterwards ran .aground, and was lightened, ■ in like manner, by transferring a part of her cargo to the Bailie Spann, another boat belonging to the defendants; • and that the Sallie Spann i with all her cargo, including the . plaintiff’s -cotton, ■ was «afterwards destroyed by accidental -,£re. -Each one of the boats was shown to have had skill ful and competent officers -and a sufficient crew, and not to have been overloaded; and no question-of negligence arose in the case. One of the plaintiff ’s witnesses, who was a passenger on the Eliza Battle, testified as follows : “ The river was low, and falling slowly. I saw no danger to the boat as she lay on the bar, and hoard, nothing said by'-her officers as to any danger, except danger of delay, or of inability to continue her voyage. The boat was so nearthe bank at one end, that she could have put out her gangways, and rolled off her cotton on the bank. I do not know what constitutes ■ a necessity to tranship, nor do I "know whether the boat could have .gotten off; but the cotton could-have been landed on ¿he hank, by putting out planks from the boat.”
    “The court charged the jury as follows: ‘If the Eliza Battle was compelled to'tranship the cotton, by or through ' the negligence or want of skill of those who had the man- . agement and control of her, the-defendants are liable. .-But, -.if there was no negligence, or want of skill, on the «part of those who had the management and control of the Battle, then you will ascertain, whether or not she was in such a condition that, in order to avoid an impending serious danger or loss to the boat and-'-cargo, it was necessary to tranship the cargo, or a-part of it, -and there was no other reasonable way of lightening her in the power of the captain with his -crew, by which said lightening could have been effected, at less risk to the plaintiff than was occasioned by such transhipment. 'In case of grounding,, if the grounding was by reason of auy-negligonce of the defendants, they-would be responsible for all the consequences of the transhipment and .loss, if accruing by reason of the transhipment. If the grounding was not by negligence, then, if it became .necessary to lighten the boat in order to get her off, their first dutywouhhbe to land the cotton, if that .would have enabled the boat'ho proceed, and it was practicable to do so with safety, and take it on again after the boat was freed from the grounding, and in a proper' condition to proceed on her voyage. If tbis óouM mot be conveniently done, then it was proper to put tire cotton on another boat, in order to lighten ike.Battle, if the captain, acting with the judgment, that'a-wise and prudent man would exercise as the most conducive to the benefit of all concerned,- came to the conclusion that such transhipment should be made.-. If you are satisfied that-,there was such a-state of facts, and the transhipment was proper, the defendants are entitled to-a»verdict; .-if it" was not, the plaintiff is entitled to a verdict.’ ”
    The court also charged the jury,- at? the request of the plaintiff, that the right of transhipment at -tire plaintiff’s risk did not-exist, unless- it was necessary to avoid an impending serious damage or loss to the boat and-cargo, and there was no other reasonable way of lightening -the boat "in the power of the captain with his crew, by which such lightening could have been effected,' at less risk to the-plaintiff than was occasioned'-to-bim, by such transh-ip*ment.”
    The defendants excepted-to -.each ,of. these charges, and they now-assign them as error...
    Geo. N. Stewakt, and E. S. DjbrgaN, for appellants.
    The court below, in its instructions to the jury-,-sanctioned the transhipment only as a last resort — required the captain first to exhaust every other possible mode* of-'lighten*-ing the boat; and made.it bis first d-utyy. to land the cotton on the bank and .take it back.again, if that could be done at less risk to the plaintiff than. iwas incurred by the transshipment. In each of-these particulars-, it is insisted, the instructions.are erroneous. . It is-the first-duty of a carrier, to forward the goods-entrusted to him to their place of-destination,-if. his own vessel becomes disabled. The master of the vessel is the agent and representative, not of the plaintiff-.or.-defendant, alone, but of all the parties¡.inter*-ested in the, ship and cargo — owners, shippers, and under*writers; and it -is-his .duty to consult the interests of-all equally. If- he, exercising his best judgment and professional skill, and acting, .for the best interests of all parties •concerned, determined that the accident rendered the transhipment necessary or proper, -he was authorized to make it, and the defendants thereby incurred no liability for the subsequent loss of goods. — Parsons’ Mar. Law, 162-3, arid notes ; Abbott on Shipping, .44-8, M53-4, 240, 236, 249, note 1; Flanders on Shipping, 257-8, 240, 254, 171, 173 ; 3 Kent’s Com. (5th ed.) 210, 212, 224'..; 1 Story’s R. 342-; 4 Johns. Ch. 218 ; 9 Mass. 551.; -9 Ad. &-E1. 332; Parsons’ Mercantile Law, 848-9.
    Wm. Boyles, and R. H. -•& J. L. Smith,- contra.
    
    A transhipment of freight is only justifiable in cases of necessity. The mere stranding or grounding of-.the vessel does not •constitute a-case-of--necessity, if she can be got off and repaired- at an expense not exceeding one-half her value. Abbott on Shipping, 454'.; Bryant ■ v. -Com. Ins. Company, 6 Pick. 141 ; 3'Story, 465; 10 Barr, -114:; 1 Arnould on Ins. 1S1; Flanders on Maritime Law, %% 135, 137 ; Am. Law Reg. for June, 1857, p. 459'; -8 Watts & S. 44; .1B. Monroe,'33A; 6 Ohio, -359; 8 Missouri, 99 ; 9 Ad. & .El. 314.
   A. J. WALKER, C. J.

-The contract of affreightment -obliges the carrier, in the absence of a legal excuse, to carry the freight to the destined port in the very vessel stipulated in the bill of - la-ding. It is<a right resulting from the contract, that the transportation .shall be in the -chosen vessel. It is not permissible to speculate as to the reasonableness of the. choice. -The owner of the freight cannot be questioned as.to his reasons. The law allows to him the benefit of the maxim, “Hoc nolo, sic -jubeo, sit pro ratione voluntas.” — Bazin v. Liverpool & Am. Steamship Co., Am. Law Register for June, 1857, p. 459, opinion-by-Judge Grier ; Garnett v. Willan & Jones, 5 Barn. & Ald.-53-61 ; Little & Tompkins v. Semple, 8 Mo. 99. A transhipment of the freight, without a legal excuse, however competent and safe the vessel into which theffransfer is made, is-a'violation of the contract, an infringement-of--the rights of the freighter, and subjects the carrier to liability if the freight be-lost. The transhipment, therefore, of the plaintiff’s cotton, of itself rendered the canier liable for the subsequent loss, of the cotton; unless the act of transhipment was legally proper or excusable.

The-first charge given by the court announced the proposition, that the transhipment was not rendered proper by the-grounding of -the boat, if, by placing the cotton on board upon the bank, the boat-would liave been freed from the grounding, and could afterwards heave taken on the cotton, and proceeded on her voyage, and these things could have been done with safety and convenience. The preciso question to which this charge gives ■ rise is, whether a grounded steamboat, upon one of our interior rivers, is justified. in transhipping a part of her caigro, when she could with safety and convenience relieve herself by placing it upon -the bank, and. then take it on and- prosecute her voyage to the port of destination. The rule of maritime law is not, that the master of a. vessel may at his election, or even when-he deems it most politic, transíiip. Thepriv-. ilege of transhipment is one of necessity. Judge Story says, the master “is not at liberty to -transport the goods ■ in any other vessel in the course of the voyage, except from mere necessity, when his own ship becomes incapable, by inevitable casualty, from performing it.” — Story on Bail-ments, -564, % 562. - Chancellor Kent states the same principle in the following language : “In cases of necessity, as where the ship is wrecked, or otherwise disabled in the course qf the voyage, and cannot be repaired, or cannot, under the circumstances, be repaired without too great delay and expense, the master may procure any other competent vessel to cany on the cargo, and save bis freight.” Kent’s Com. m. p. 210. Áiid Angelí, in bis work on Carriers, in reference to the same subject, says, that- if by reason of stranding, or some other unexpected cause, it becomes impossible to convey the cargo safely to its destination-in his own vessel, the master is to do what a prudent man would think most for tbe benefit of all concerned; and transhipment to the place of destination is the-first object, because that is the furtherance of the original object, Angelí on the Law of Carriers, 188, $ 187. See, also, Smith’s Mercantile Law, 292 ; 1 Parsons’ Mar. Law, 163, 161, n. 2 Abbott on Shipping, m. p. 365 ; Searle v. Scovel, 4 Johns. Ch. R. 222 ; Shipton v. Thornton, 9 Ad. & El. 333; Crawford v. Williams, 1 Sneed, 212 ; 4 Arnould on Ins. 181, top ; Jordan v. Warren Ins. Co., 1 Story, 364 ; Parsons’ Her. Law, 348-9.

It' may be that the necessity, which would justify a transhipment, is not required to be' shown with absolute certainty to have existedi- That a moral necessity would be sufficient to justify the.transhipment,, seems to be conceded by the authorities. . Such a case of - moral necessity would exist, where the circumstances were such that a master of reasonable, prudence and discretion, -acting upon the pressure of the-occasion;.-would haVe made the transhipment,-from a .firm opinion that, unless the transhipment was made, the vessel could not-be delivered from, the peril at all, or not without the hazard" of an expense utterly disproportionate to her real value. — Brig Sarah Ann, 2 Sumner, 207 ; Gordon v. Mass. Ma. & Fire Ins. Co., 2 Pick. 240 ; Ship Fortitude, 2 Sum. 248 ; Flanders on Maritime Law, 104, n. 2; 1 Parsons on Maritime Law, 60 ; Parsons’ Her, Law, 376, n, 3. A case of :such -moral necessity is put by Lord Tenterden, as follows : “If. on the high seas the ship be in imminent danger oí sinking, and another ship, apparently of sufficient ability,, be passing by, the master may -remove the cargo into such ship; and although his own ship happen to outlive the storm, and the other perish with the cargo, he .will not -be answerable for the loss.” — Abbott on Shipping, m. p. 36,5. „. But no such case of moral necessity is presented in the facts upon which the court below, in the charge which we.-are considering, instructed the jury;, that the transhipment of the plaintiff’s cotton was not justified.

In -the case of Bryant v. Com. Ins. Co., (6 Pick. 141,) the court -sustain the view which we. take -of tha-master’s duty in this case,in the following language ; “The law authorizes the master, in case-of shipwreck, stranding, or other disasters, which.may. happen without his fault, to afetMór all parties interested in their absence. If the ship should be stranded, it would be his duty, in behalf of the ownér of the ship, to get hér off and prosecute the voyage, if it eould be done at an expense not exceeding half her value. So, if that could not-be done, he has authority to procure ' another ship to carry the cargo to the port of destination. If the cargo were 'damaged by the stranding, not exceeding ‘ one-half of- the invoice -value, it would be the duty of the master, as representing «the owner of it, to cause it to be reladen on board of the ship, if that were in-a condition to transport it, or, if not, on board any -other ship which he could procure upon reasonable terms on account of the «hip-owner ; to the end that the ship-owner may earn his freight, and the merchant may -have -his goods at the port of destination. The master, -in short, is, in such cases, to act reasonably and honestly, with a view to save the property and .perform the voyage.” The'-mere stranding, of itself, does not necessarily produce a necessity for transhipment. Notwithstanding the stranding, it is the master’s duty to get the vessel off, and prosecute the voyage, if he can do so; and no consideration of mere convenience- to him would justify a transhipment.

We do not think the charge given at the instance of the appellee is obnoxious t©-the objection made especially to it. The objection is, that it-make the transhipment improper, unless there was no other reasonable way of lightening the boat in the power of the.captain, at less risk to the plaintiff than was occasioned by the transhipment; and that the jury were thus made to consider the interest of the plaintiff alone, and not of the boat-owner and all others concerned, in determining whether the transhipment was proper. We do not think the charge .is' obnoxious to the objection. A way of lightening the boat, which would-protect the'plaintiff at the expense of all others concerned, would be’unreasonable ; and the use '-of ' the word reasonable in the charge shows, that the court did not intend to make the impropriety oí the transhipment depend upon the fact, that there was another way of lightening the boat, which would produce less risk to the plaintiff, but which would involve a disregard of the interest of all others concerned. If the charge is confused, and tended to mislead the jury, the appellants ought to have protected themselves by asking an explanation at the time. What we have already said in passing upon the first charge, will meet the other objections made to the second.

Judgment affirmed.

Stoke, J., does not assent to-the correctness of the criticism of the last charge given.  