
    CARROLL vs. WATERS.
    The part owners of a steamboat, are not liable in solido, to the freighters.
    Appeal from the court of the first district.
    Maybin, for the plaintiff.
    The ground of the plaintiff’s action, in this case, is that the defendant, as part owner of the steam-boat Newport, is responsible, in solido, for the amount of damage sustained by her goods, on board the boat. ff. 14, 1, 1, 25, Inst. 4, 7, 2, Curia Philip. tom. 2, lib. 3, cap. 4, sec. 22, 24.
    The principle is recognised by sir William Scott, 5 Rob. Adm. Rep. 262, and note, 1 East, 20, Wright vs. Hunter ; see the opinion of lord Kenyon. Abbott, 119, (Story’s edi.) in speaking of the action against part owners of a vessel, states, “that regularly, such action should be brought against all jointly ; yet, if all are not sued, the defendants now only avail themselves of the objection by a plea, in abatement; and if they omit to plead such a plea, the plaintiff will recover his whole demand, and the defendants must afterwards call on the others for contribution.” 7 Johns. 311, Schemerhorn & al. vs. Loring & al., 1 Dal. 129, Scottin vs. Stanley & al., Civil Code, 390, art. 15, 16, 17, 18, to shew the definition of an ordinary commercial partnership, the difference between it, and the special and corporate partnership, and that this case falls within the definition of an ordinary commercial partnership, ibid 396, art. 41, Febrero adic. 3, part 1, cap. 12, sec. 1, where the same division of commercial partnerships is made ; as in the Civil Code, nombre colectivo, comandita and anonima, and similar provisions concerning the extent of the responsibility of those different partnerships, are made. In page 190, where the doctrine laid down would be supposed to militate against the plaintiff’s case, the author is speaking, exclusively, of corporate and special partnerships; and establishes principles similar to those recognised on that subject, by the Code ; but makes no provision respecting an ordinary commercial partnership, which are believed to exist in the case before the court.
    East’n District.
    April, 1821.
    
      View the inconveniences which must arise, and the difficulties and embarrassments in which the mercantile community will be involved, if the doctrine set up in defence should be law. Shippers of goods, where there are several owners of the vessel, must institute as many actions as there are owners. It is for the interest of the community, that multiplicity of suits should be avoided.
    If the owners reside in different parts of the country, the shipper must incur great expence,
    lose much time, and be subject to
    very serious inconveniences, if they are to be prosecuted in their respective places of residence ; in fact, the difficulties under which he would labour, would amount to almost a denial of justice—the court cannot surely establish
    such a doctrine, unless borne down
    by positive law.
    If the part owners be responsible, in solido, every shipper will be safe. A certainty will prevail, which will encourage and increase this discription of business. The mercantile community will then know who are the responsible persons, and will not be affected by any division of interest, or arrangements which may be made between the owners of the vessel: they will then know, that, as regards the world, they are all bound, and must repair any damage which may be sustained, and as between themselves, their difficulties can be settled in any manner which they may deem best.
    Chaplin, for the defendant.
    In this case there are two questions which arise, material to the interest of the defendant. Is he bound, in solido, with his co-partners, or in any manner liable, as part owner of the steam-boat? Is interest due from the inception of the suit?
    1. The partnership, entered into by the defendant, was either universal or particular. Let us suppose the former to have been the case, and that the goods were actually damaged by the negligence of the captain; upon referring to the Civil Code, 323, art. 20, we find, that although principals are responsible for the acts of their agents, yet they are relieved from this responsibility, when it was totally out of their power to have prevented it. Was this so in the present case? Could the joint owners or partners have prevented this damage, and did not? No matter what be the nature of the partnership, still they are not answerable, as principals, until it can be shewn, that they could have prevented the damage, and did not?
    But, if the defendant be liable at all, we contend that it is on a particular partnership, and consequently, that the defendant is bound only in proportion to his interest therein.
    To understand any principle well, we have no better guide than to make ourselves well acquainted—first, with its opposite; in the present case, it will be found of infinite use. An universal partnership, which is contradistinguished to a particular one, is defined by our Code, to be either that in which the parties put in common, all their estate, moveable and immoveable, which they possessed, at the time of entering into it, and the profits arising from the same; or, it includes every thing which the parties may acquire by their industry, under whatever title it may be, as long as the partnership lasts. Civil Code, 391, art. 8, 9. Does the present partnership fall under either of the above definitions? Were the defendant's co-partners engaged in a general partnership with the defendant, and consequently, liable to all the defendant’s losses, as a general merchant? Or were they only associated in one particular and determinate branch, that of running a steam-boat? The case would have been quite different, had the defendant been engaged in no other transactions than the present; that is, had all his estate, moveable and immoveable, been vested in the steam-boat. But it was not; the defendant’s principal business and establishment is in New-Orleans. His steam-boat transactions had nothing to do with his other business, nor had his co-partners any share of his profits and losses, as a general merchant.
    This, then, was clearly a particular partnership, and consequently, each partner is bound only in proportion to his interest in the concern, if he be bound at all. Civil Code, 399, art. 43, 44, Slocum vs. Sibley, 5 Martin, 682. Febrero, 3, 190.
    But we contend, that the loss of the boat entirely exonerates the defendant from any responsibility at all. Emerigon, Traite des assurances &c., tom. 11, page 454, et seq. Mais cette action solidaire ne compéte contre les propriétaires, que jusque á la concurrence de l’intérêt qu’ils ont sur le corps du navire ; de sorte que si le navire perit, ou qu’ils abdiquent leur intérêt, ils ne sont garant de rien.
    
    2. It is presumed there can be no difficulty. The damages were liquidated only by the verdict, and interest cannot be allowed, from the inception of the suit, 4 Martin, 615, 5 Martin, 388, 6 Martin, 698.
    From these considerations, it is presumed, that the defendant will be entirely discharged from any responsibility whatever, or if made responsible, that it will only be in proportion to his share in the partnership.
    Maybin, in reply.
    The authority from the Civil Code, 323, art. 20, is not in the least applicable to the case before the court. This article cannot, by any construction, be extended to principals and agents, or owners and masters of vessels, according to the lex mercatoria. It is speaking of the responsibility of parents for the delinquency of their children, and of that of institutors of youth, or artisans for the delinquency of their scholars, or apprentices. The provision relied upon by the counsel, must be taken in connection with the above provisions, and the evident meaning of it will then be, that by the words. “masters and principals,” are understood, those persons bearing these relations, in domestic life. The French text, I think proves this:—the word domestiques, meaning servants, those belonging to a family; and the word preposes, meaning overseers, stewards, principals, and agents, as spoken and understood, in the commercial law, cannot be brought within the spirit of this article of the Code.
    
    The other authorities from the Code are no less inapplicable. The definitions of universal and particular partnerships do not embrace a commercial partnership. Those partnerships comprehend every other but commercial. For, after defining them, the Code here proceeds to state, that there are three commercial partnerships in this state, and then gives the definitions of them. Now, if universal and particular partnerships be also commercial ones, then there must be in existence, in this state, more than three commercial partnerships, which is directly contrary to the provisions of the Code. This construction is rendered more probable by the words employed in those definitions. Immoveable property is here put into the funds of a commercial partnership. “ Trade, action, or profession,” are the words used in the definition of a particular partnership, and embrace such an one as that on which this court decided in Slocum vs. Sibley, 5 Martin, 682.
    We contend, that this case is an ordinary commercial partnership, and must refer the court to the authorities produced in the opening.
    In what manner the opposite counsel makes his quotation from Emerigon bear on this case, I cannot perceive. In the first place, Emerigon, though highly respected on the continent of Europe, is yet of no authority in this court. But admitting that his opinions, on the general principles of maritime law, were binding, yet the passage quoted appears to have reference only to, and to be founded on, the different ordinances of those countries where it may be law. For Emerigon immediately after, observes, that, “such is the law which is observed in the north, and such is the regulation of our ordinance,” so that this is not a general principle of maritime law, which the court would consider with respect, but merely an ordinance. Besides, when this author declares, that “if the ship perish, the owners are not responsible for any thing,” he must mean, when the ship perishes, at the same time, that the master commits those acts, for which they are liable. He cannot mean that if she perish, at any future distant period they are discharged from responsibility. This would be a most unjust doctrine. In our case, the steam-boat Newport, was sunk a long time, between one and two years, after the damage to the plaintiff’s property.
    The law, as settled in 4 Martin, 615, 5 ib. 388, &c., cannot be denied. But those cases are clearly distinguishable from the present. In the former, the demands of the plaintiff’s were uncertain ; calculations were necessary to be made ; and, it was impossible to say, to what they were entitled, until the jury or the court could decide on their case. In the latter our demand is specific, certain, and so expressed in the petition, on it we could have held the defendant to bail, if necessary. This then is rendered more certain by the admission of the captain of the boat, that it was a just demand and that it could be paid.
    It is therefore hoped, that nothing hitherto advanced in defence, can induce this court to reverse the judgment of the inferior court.
   Porter, J.

The defendant and three other persons, were joint owners of the steam-boat Newport, on board of which the plaintiff shipped merchandise in good order. It was damaged daring the voyage, through the fault, or neglect of the captain. And this action is brought for the injury which the plaintiff has thus sustained.

The evidence establishes the delivery of the goods, the damage they suffered, and that the defendant was part owner of the boat.—The only question therefore to be decided, is, whether he is responsible in solido, or only for his virile share, and as it is one of general interest to the community, I have taken considerable pains to arrive at a correct conclusion in regard to it.

Our Civil Code, p. 390, art. 12, defines a particular partnership to be, that “which relates to certain specified things, to their use, or to the benefit to be derived from the same.”

The undertaking of several persons to run a steam-boat, for their joint benefit, comes completely within the spirit and meaning of this definition, and I do not see why ships or steam-boats may not as well be the object of a partnership, as any other particular, or specified thing, in regard to which men choose to associate for mutual advantage. Pothier Traité de Charte Partie, sec. 2, art. 3, n. 50. Watson on partnership, 40.

Establishing this contract to be nothing more than a private, or particular partnership, the liability of each partner is easily determined. They are not bound in solido, but for their virile share. Civil Code, 398, art. 44.

If I did not conceive the question to be settled by the positive expression of legislative will, and if we were obliged to examine how the law formerly stood on this subject, and form a decision on it, I should come to the conclusion, that the owners were not responsible in solido.

It is true, it is stated in the Curia Philipica, commercio naval, lib. 3, cap. 4, no. 21 and 22, that the owners of vessels are responsible in solido, for the contracts, acts, and negligence of the master of the ship.

In a later work, however, Febrero addicionado, part 1, cap. 2, sec. 1, their responsibility is declared to extend only to the share which each partner has in the vessel; and the author further states, that the doctrine contained in the Digest, lib. 14, til. 1, de exercitoria actione (which is referred to in the Curia Phi lipica, as the authority for holding part owners of a ship to be responsible, in solido) is not in force in Spain.

This latter opinion, I should suppose correct. Nearly all the modern nations of Europe have adopted the principle, that owners of vessels are not responsible for damage done to property shipped, any further than the share which each partner may have in them—It is thus stated in the Consulat de Mer. chap. 72, 227, 239, a Code of great antiquity, of the highest authority on this subject in every country; and particularly in Spain, where it was originally compiled, and first edited. Consulat de la Mer. translated by Bourcher, vol. 1, p. 61, and 76. Emerigon declares that the maritime laws of the middle ages so understood it, that such was, and is the jurisprudence of the northern nations. It is also the law in Holland, in Germany, in England, in France. Laws of the sea by Jacobson, chap. 3, p. 37, 47 : Grotius, de jure belli et pacis, lib. 2, tit. 2, art. 17 : Abbott on Shipping, chap. 3, no. 13, p. 119, and chap. 5, no. 2, p. 298. Emerigon, Traité des assurances, vol. 2, chap. 4, sec. 11, p. 454, and 455: Pothier Traité de Charte Partie, sec. 2, art, 2. sec. 5, no. 34.

Owners of vessels, in those countries, have still further the privilege of discharging themselves from all responsibility, beyond the vessel and freight ; and cargo, if they have any of their own on board, by abandoning their right in them, to the persons whose property may be damaged through the fault of the master, or mariners. See authorities already cited. It is true, this advantage is conferred by statute, or positive ordinance in some of those countries. But its existence shews plainly the opinion which the different nations of Europe hold on this subject. It proves that a provision, so generally adopted, must have been founded on extensive motives of public policy, common to all commercial nations. And I have great difficulty in believing, on the single authority of a work, however correct it may be generally found, that Spain alone had regulations on this subject, different from all the rest.

I am well satisfied that the principle of making the part owner of a vessel responsible out of his private fortune, and that to any amount, although his interest in her might not be the one-twentieth part of the whole, would tend to discountenance persons from engaging in enterprises of this kind; would discourage that uniting of capital, without which undertakings of this description cannot be carried on with advantage ; and would operate as a complete check to enterprise in a branch of commerce, for which this country heretofore has been so eminently distinguished, and from which she has derived honour and profit.

I am glad therefore that the law does not, in my opinion, require, nor permit this court to give judgment against the owner to the extent which is asked by the plaintiff. And conceiving the case to come within the provisions of our Code, in relation to particular partnerships and governed by them, I conclude that the judgment of the district court should be annulled, avoided and reversed, and that judgment be given in favour of the plaintiff, for the sum of one hundred and fifty six dollars, 49 cents, and that the plaintiff and appellee pay the cost of this appeal, and defendant pay the costs of the court of the first instance.

Martin, J.

The extent of the liability of the part owners of a steam-boat must be sought in the maritime, which is part of the commercial law. In the case of a steam-ship carrygoods from New-Orleans to the Havanah, Charleston, and New-York, we would improperly look for it elsewhere ; and it is there we must seek it, in the case of a steam-boat carrying goods from New-Orleans to Natchez and Louisville.

It is true, as we held in the case of Slocum vs. Sibley, 5 Martin, 682, the members of a particular partnership are not bound in solido. But this must be understood of partnership, for the exercise of some trade, metier, or profession, or any other but a mercantile transaction. Civil Code, 390, art. 13 & 14, id. 398, art. 43. The expressions used in the French text, which is clearly the original, are les societes particulieres, autres que celles de commerce. Hence we are to conclude, that in commercial partnership, the members are bound in solido.

The Code, in the first thirteen articles, in which it treats of the various kinds of partnerships, notices only such partnerships, the the object of which is something else than commerce. Commercial partnerships are the object of the five last articles. Civ. Code, 388.

That, at Rome, part owners of a ship, who navigated her, under a common master, were bound in solido, to the freighters, cannot be doubted. Si plures navium exerceant cum quolibet eorum in solido and potest, ff. 14, 1, 1, sec. 25, that such is the law in Spain, the author of Curia Philipica informs us. So does Rodriguez. Si eran muchos los administradores de la nave y todos nombraren un maestre por el contrato, de este puede ser convenido cada uno in solidum ; and I see nothing that contradicts this in the part of Febrero addicionado, on which the defendant's counsel relies. Such is also the law of the other states of this union; and in England, where, however, by a particular statute, enacted in 1734, the liability was restricted to the value of the ship and freight.

The reason for this liability, in solido, given by Rodriguez, appears conclusive; por que el contrato solo fue con el maestre de la nave, y no es justo que a los que contraxeron con el, se los precise a litigar con muchos. As the freighters contract with the master, a single person, it is not just that they should be compelled to bring suits against many.

It seems to me, the judgment of the court, a quo ought to be affirmed with costs.

Mathews, J.

I concur in the opinion of judge Porter, considering the owners of the steam-boat (admitting that their situation, as part owners, constitutes a partnership) partners in a particular partnership, and that not strictly commercial, being founded on a joint, or common ownership of a boat used to carry goods for him.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that judgment be entered in favor of the plaintiff, for the sum of one hundred and fifty six dollars and forty nine cents, and that they pay costs in this court, and the defendant below.  