
    Marsh and Howerin ads. Ex’ors. and Ex’rix. of Dr. Blythe.
    Where two vessels were passing in a narrow channel (about 400 yards across,) both going the same way, and it' became apparent that they were about to run afoul of each other, it was the duty of the vessel to windward to keep away; especially when she was warned of the danger ; and the owners of such vessel not giving the way, and who might have given the way, are liable for the losses sustained by the--vessel so run afoul of.
    Where two vessels meet in such a situation that neither can avoid the ■ collision, it is a danger of the sea, hut not otherwise.
    
    Whether peril of the sea or not, is a question for the jury, 
    
    A motion in arrest of judgment, because the declaration neither stated the day nor the year, when the wrong complained of was committed, and that it did not state that any definite quantity of rice was-lost, but, merely stated that -bushels were received on board and lost, comes too late after verdict. The advantage should have been taken by pleading. 1 he day of the loss and the quantity lost were proved on the trial.
    ‘'-lotion for a new trial and in arrest of judgment. Ver diet for the plaintiff, Tried before Mr. Justice Cclcocl’.
    
    
      y«i<i M. ÍIÍS \vai an action of assumpsit against Robert Marsh and 'fames C. Howerin, by the executors and eyeruiriv: of Joseph Blythe, to recover the value of a cargo of rough rice, shipped at, Georgetoxvn, by the late Dr. Blythe., on board of a vessel owned by the defendants, called the Non-Such, and chiefly lost, on tlie voyage to Charleston, by the sinking of the vessel.
    The plaintiffs adduced, ihe bill of lading, or receipt for the rice, signed by the master of the vessel; by which he engaged to deliver the rice in Charleston, “ the dangers of’ the sea excepted.” They adduced, also, an affidavit of John. Wales, a mariner on board óf the ■Nonsuch, who swore that he had been accustomed to the sea in the character of a sailor for twenty-two years, and that be was a seaman on wages on board the Nonsuch, a coasting schooner, commanded,by captain Patch, on the 15th May, 1815, when she was sunk at Cat Island by the schooner Planter s' Friend, commanded by captain Hmoerin. . That the said schooner, the Nonsuch, was loaded with rough .rice, and was bound to Charleston; and the other schooner, io-wit, the Planters'’ Friend, was also loaded and bound to Charleston. That when off Cat Island, the schooner Non-such was not able to weather the point of land ahead, without tacking, the wind being about east, and was sailing with her starboard tacks on board, and the Planters’ Friend with her larboard tacks on board ; and that he thinks the Nonsuch was going at about the rate of three knots, and the Planters’ Friend full in the wind, and with the tide at about seven knots ; and at the time when he first discovered danger, he informed captain Patch of it, who said he believed he could clear her, the Planters’ Friend., But it at length became manifest that some injury would accrue if both vessels kept their course, and this deponent called loudly and often to the captain of the Planters’ Friend to-bear away, who returned no answer ; that it was then fully in the power of the captain of the Planters’ Friend to have avoided the accident, but it was then too late for the captain of the Nonsvch to have got out of the way: that the Planters' Friend run her bow on the Non-such amid ships, and in consequence of such running upon the Nonsuch, she filled with water and sunk immediately $ the crew not having time to save their clothing.
    Mr. Moses Myers proved that it took from 18 to 27 bushels of rough, to make a barrel of clean, rice, according to the quality, and that the rice must be very good if twenty bushels of it turned out a barrel.
    Mi*. John M. Taylor was next sworn, who stated that the plahter’s usual calculation was twenty bushels to the barrel..
    It was admitted that the defendants were owners of the vessel Nonsuch.
    
    On the part of the defendants, it was admitted that 500 bushels of the damaged rice were offered to Dr. Blythe, and that it was afterwards sold at 15 cents per bushel, in Georgetown, which was all that was saved.
    Captain Benjamin Was sworn, who stated that he had been about nineteen years in the trade, and that he commanded a coaster; from his knowledge of the place, he knows how they were situated,- i. e. the Nonsuch and the Planters' Friend. That the vessel which was before the wind should have given way; that this is the universal practice, because the vessel so situated, is under perfect command. That in his opinion the Planters’ Friend was In the wrong; that he would not have thought himself exempt from liability, but would have pursued the other vessel ; that is, the usual course. That it was not a sea danger ; “ if so, we had better stay at the wharves, for we are constantly tacking.” He further stated, that Patch and the other were young and inexperienced. That he thought he would have done as Patch did; also, stated that about 6 1-4 or 7 cents was the freight for rice at that time ; and observed that the two .captains stood upon etiquette; meaning that he believed they were rather punctilious about giving way. Captain Tarhox was next sworn, and deposed that “ he saw a little of itP The vessels were .between Cat Island and Musquitoe Creek. That the Nonesuch was about four hundred yards ahead, and about fifty yards from the shore ; that the channel was very narrow, and that the Nonsuch had no head way, no chance to do any thing, nor could she get out of the way. That the Planters’ Friend was full in the wind, and went into the Nonsuch in stays. That the Planters' Friend could have avoided the Nonsuch easily. That he was about 300 yards off, a little above major Brown's place. Witness said that he was a pilot, and that the channel was about 400 yards wide at that place.
    Captain Howling was next brought forward, and swore to the following facts : That he had been a branch pilot about eight years. He knew the place described by the affidavit, and that the channel was narrow; that he thought Patch did all he could, and that the Nonsuch was a heavy boat, and flat bottomed ; that he thought it a danger of the sea, if it could not have been avoided, (alluded to Patch, not to the captain of the Planters' Friend.,) and that he thought the owners of the Planters' Friend liable.
    Captain Lehre, the next witness, stated that he had been all his life in this trade ; that it was the duty of the vessel behind to keep away ; that he would have done as Patch did; tliat he should think it a danger of the sea ; and that he knew Patch, and thought him capable pf this navigation. On his crass examination, he said he thought it a danger of the sea, because it was an unavoidable accident ■: that he never knew a case of this kind before, and knew no practice on the subject.
    Captain Wilcox was sworn next, and deposed that he had been five or six years in the trade ; that the channel was narrow, being not more than a half mile wide ; that it is impossible, without being present, to say whether Patch could have avoided the accident; he thought from the representations of the case he would have done what Patch did ; and that he should call it a danger of the sea, unless the man ran xvilful/y into high On bis cross examination. I:e said that he never knew of a ease exactly like this.
    The verdict was for the plaintiff,
    The defendants now moved for a new trial, on the following grounds s
    1st. That the presiding Judge misdirected'the jury in stating to them that when twq vessels meet in' such a situation that neither can avoid the collision, it is a danger of the sea, and not otherwise»
    2d. That the jury, in calculating their verdict, committed a mistake, inaamuch as they founded their calculation of the value of the rice lost, upon the presumption that twenty bushels in the rough were equal to a barrel of six hundredweight of clean rice,'which was unreasonable no a general estimate, and not warranted by the evidence of the caso.
    3d. That the jury have, by their verdict, determined that the defendants shall'pay fora quantity of empty barrels, for the carriage of which, no freight was expected.
    4th. That the verdict was otherwise against the law, ana evidence of the case.
    The defendants will also move the Constitutional Court for an arrest of judgment on these grounds :
    1st. That the declaration neither gives the day nor the year on which the wrong complained of was committed.
    2d. That the declaration does not state that any definite quantity of rice was lost, but merely states that ——- bushels were received on board, and lost. v
    
      
      
         Marsh and Howerin ads. Blythe, (1 Nott & McCord, 170.)
      
    
   Mr. justice Colcock

delivered the opinion of the court.

In this case, the only question of any importance is, whether the defendants are exempted from their responsibility by the peculiar circumstance attending the case ? Whether it was the result of inevitable accident, or as the defendant’s counsel put the case, whether it is “ axdanger of the sea,” within the meaning of the exception contained in their receipt ? I consider the terms “ inevitable accident” and “ perils of the sea” as convertible terms, so far as they ¡relate -to the responsibility of the carrier to the owner, It?. ¿large sense (says Marshal!,) all tiie accidents or misfortunes to which those eng.gad in maritime adventurer, ;uc exposed, may he sai-.l to arise from the perils of the sea ; and conformably to this idea, a loss by capture was for* in>*rly hold .-n in our courts to he a loss by the peril of the sea; but more modern times, it has been found conve ■ nient to distinguish the losses to which ships and goods a; sea are liable, by the more immediate causes to which, they may bo more particularly ascribed. In this view, losses by the perils of the sea are now restricted to such asen-dents 01 misfortunes only as proceed from mere sea-dam-’ age ; that is, such as arise car m divina, from stress of wea • .her, winds and waves, from lightning and tempest, rocks and sands, &c. A collision therefore which would excuse, must be such as coulc] not he avoided by human prudence and skill. In other words, it must be the effect of the vif divina; the operation of wind and waves combined to a degree not to be resisted by human skill or forethought; as if two vessels meet in a t.t'.nn at night, or even in the day, when there is clearly no blame attributed to either side. Formerly, by the m tritime law, as stated by Vafin., Pothier and Enierigm, urdt-r such circumstances each vessel bore apart of the Iocs. But by the law of England, if it appear to ha. been unavoidable, without fauh in any one, the owner of the ship or cargo damaged must bear the loss. (2 Marsh. 493.) But when- resulting from the want of diligence or skill in either, it makes the common carrier liable. If the captain oí the vessel which causes the injury he iu fault, he is answerable to the owners of the injured vessel, and they to the person for whom they carry. And upon examination, it will be found that the cases so strongly relied en, on the part of the defer, dants, support this doctrine.

The case c& Pickering and Barclay did not in fact turn on this point. It v, as decided early in the reign of Charle the First, when capture or destruction by the king’s enemies was comprehended in the words “ perils-of the sea,"' audit war determined ihn; the owners were not answer*-ble, because “ the taking by pirates was a peril of the sea.” (Abbott, 267.)

The case of Bever and Tomlinson, was the case of a vessel designedly struck by' the vessel of an enemy; the . case never came to judgment, but Mr. Abbott, in speaking of it, says, the express exception afforded room to contend that the exception of the king’s enemies, which arises out of the general rule of law, was meant to be excluded in the particular instance; so that this was not treated as a case of collision. .

The case of Baker and Fisher was considered as a case of collision ; but it is expressly said that it was a matter of doubt whether the master of the defendant’s ship ought to have understood the course which the- others would pursue and borne to leeward to avoid them. That no blame was considered as imputable to him for'not having done so; nor was any fault attributable to the persons who had the conduct of either of the other ships. (Abbott, p. 209.)

Even a loss, happening from a natural cause-, will not always be considered as within the exception “perils of the seas.” If a vessel strike on a shallow or rock, the situations of which are generally known, it may be a question whether it was not the fault of the master that the vessel went on it. If she be forced on a rock by adverse winds, or if a shallow be suddenly created by tempest or other violent convulsion of the sea, the owners would be excused. But where it might have been avoided by skill and prudence, they would be' liable.' (Abbott, 210.)

But the question was left to the jury, according to the decision of the Constitutional Court in this very case, (which is supported by the doctrine, as laid down in Abbott, 204,) with an opinion, that the facts well warranted them in finding a verdict for the plaintiffs; and I think the case can admit of no doubt. (1 Nott McCord, 170.) Bjc a reference to the testimony, it will be sefn that every witness who gave an opinion on the pbint, s¡aic| it was the duty of the captain of the Planters’ 'Friend to have borne away; and. that he could easily have done so, she being full in the wind. S.ome of the witnesses thought it a dan-* ger of the sea; but that opinion was not to influence the jury ; because of the limitation which was given to it by most of the witnesses, “ if it could not have been avoid- ' ed,” which was in fact the whole question. But captain Benjamin, the oldest .and most experienced seaman, who was examined, said he could not think it a danger of the sea; “if so, they had better lie at the wharves; for in that navigation they were always tacking.” Both captains were young and inexperienced, and no doubt stood on etiquette ; and it is impossible to read the protest of the seaman John Wales, who was on hoard the Nonsuch, without coming to that conclusion, and that in truth captain Patch himself was guilty of great negligence; for he, the witness, repeatedly warned him of his danger, and his an-swer was, he thought he could clear her. He was bound to be sure of it. It was better to lose a little v.-'Y than run the risk; and in passing the other vessel, he mi;>ht then have conversed with the captain. It is true, that at the last moment, he could not have avoided the other ves- - sel, though he could have come to, even the moment he-fore they struck; but he was blameable for not using more caution at an earlier period.

As to the other two grounds, the court cannot ascertain by what data the verdict was found, and therefore they cannot perceive that the jury have allowed freight for empty barrels, (if indeed they were empty,) or allowed too few bushels of rough rice to the barrel.

The motion in arrest cannot prevail, because it is too late after verdict to complain of a blank in the declaration as to the date or the number of bushels ; for that is cured by the verdict. If the defendant wished to take advantage of it, he should have done so by his pleadings. It was proved on the trial on what day the loss occurred, and what were the number of bushels lost.

The motion is refused.

Justices Bay, Nott, Huger and Gantt, concurred.  