
    Administrators of Wm. Patton vs. John Magrath and W. P. Brooks.
    The liability of steamboat owners, as common carriers, extends to the destruction by fire, of goods shipp.ed on board their boats; and there is no established custom in this State, which would exempt them from such responsibility.
    BEFORE RICHARDSON, J., AT CHARLESTON, JANUARY, 1838.
    This was an action against John Magrath, the owner of the steamboat Augusta, and Brooks the captain, as common carriers. The intestate, Patton, had shipped on board the Augusta fourteen bales of cotton, to be carried from Augusta to Charleston, consigned to Boyce & Co.
    The protest was ruled to be properly admissible in evidence.
    The cotton had been delivered by a lighter, and remained in it alongside of the Augusta. The captain and hands had gone to rest; when, at about one o’clock the next morning, the cotton was discovered on fire. No one could find out how the fire originated; and there was no proof of negligence, in the management or discipline of the steamboat. She remained unhurt by the fire, but the cotton was all burnt.
    
      The defence set up, was, that by general usage, the owners of steamboats were not holden liable for losses by fire.
    The witnesses on the alleged usage, held the owners of such boats irresponsible for such losses, unless negligence be proved; and gave several instances of such losses occurring, and no demand of damages having been made by the shippers. Sometimes the owners insured the cotton, and demanded higher prices for freight on that account. One witness said, that eight or ten years ago, the difference in freight, made by the insurance, was 72^ per bag. Another believed the point given up by the shippers, unless this extra price for freight was paid; but thought the practice of having two rates of freight was not well settled. The railroad, he said, paid such losses. The usage was, of course, modern, having come in practice with steamboats. But the reason for the usage was that steamboats being propelled by the means of fire, such losses were incidental, and fall upon the shipper, who risks his goods on board of such a boat.
    His Honor charged the jury—
    1st. That the case presented a clear instance of loss by the carriers. That the law recognized no such exemption, in favor of steamboats. Their fire was to propel the boat, not to burn the cargo ; and if the carriers permitted it to spread, they must bear'the consequent loss. Their vigilance was to prevent such losses; and it was not incumbent on the shipper to prove negligence, or remissness, on their part, in order to recover.
    2d. That although a general usage, so long practiced as to indicate the assent and concurrence of all parties concerned, might form such an exception to the legal liability of carriers for losses by fire; yet, that the .understanding and practice, now set up, was evidently too recent — too confined in instances ; and he thought too little supported by just reasons or necessity, to have already constituted a usage, authoritative enough to make an exception to the established law, against common carriers. And he thought the practice of paying such losses by the railroad company, illustrated the true rule of law.
    3d. That, supposing the usage had been esatablished, of which the jury were the final judges, yet, still, it did not appear that the burning of the cotton in the lighter had any connection with the fire-engine of the steamboat. It was simply burnt, after delivery, and near the steamboat; the boat, and cargo in her bull, being unhurt. He thought the usage, taken in any latitude, could not be extended to such a loss.
    4th. The place of'the burning put the particular case out of the reason assigned for the usage; which would seem to be, the risk of burning, inseparable from the use of the fire-engine, which is indispensable in propelling the steamboat. But the usage could in no view be extended to a case where the loss was untraced to, and disconnected with, the fire necessary to the engine.
    The jury found for the defendants, and the plaintiffs appealed, on the grounds,
    1st. That the protest was not admissible.
    2d. That the law so well established as to common carriers, rendered the defendants liable, upon the non-delivery of the cotton, for which no excuse but the act of God or the public enemy would avail.
    3d. That the pretended custom was without evidence, as all the witnesses admitted it was disputed from the beginning, and avoided, in many instances, by extra charges; and finally, that the risk is openly admitted by two large companies, who secure themselves by counter policies.
    4th. Because the protest, if good evidence established such a case of negligence, as independent of any custom, would make the carrier liable; especially, as the loss was independent of the use of steam, occurring when at anchor.
    5th. Because the custom is not a reasonable one; is in derogation of the wisdom of the common law, and places the freighter at the mercy of the carrier, as all cases of neglect must depend on interested testimony. It is ill-defined, uncertain, and impolitic; and lastly, the verdict was arbitrary, against the charge of the Court, and unsupported by evidence, and against law.
    
      Benj. F. Hunt, plaintiffs’ attorney.
    
      Petigru and Lesesne, for defendants.
   Richardson, J.

This Court concurs in the opinion of the circuit Judge on the law of the case, as expressed in his charge to the jury. 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. The reason of the severe accountability of common carriers is, because their possession of the cargo makes it an easy matter for them to take or purloin the goods: and as easy to get up a pretended accident or misfortune, and pass it off as the cause of the loss. In like manner, it is easy for a carrier, choosing as he may his own agents, time and. place, to confederate with robbers. It is for these considerations that the law, proceeding on the moral principle of prudent prevention, cuts off the temptation of pecuniary gain, and makes the carrier liable for all losses, unless they occur through the depredations of public enemies, or some act of Providence, against which human strength and care cannot guard. The sudden shifting of the channel, or the recent introduction of a hidden sawyer or snag, which are among the natural incidents of our rivers, have been, when unknown, always holden within the latter exception. But, with these exceptions, the carrier’s undertaking is to deliver his cargo at the destined port, or be answerable. If he does not so deliver it, he must pay the value in money; and then he is entitled to freight, just as if he had delivered the specific goods. In this situation the present defendants stand. They and the plaintiffs, morally speaking, are innocent; but one or the other must bear the loss — and the law decrees it to the carriers. This is enough for the Court to know, and, knowing, must preserve the law. But in a case of novel application, and for the satisfaction of the many interested in the principle, I may add, that the carrier who undertakes to deliver freight, through the extra danger of fire-engines, can, with less reason than other carriers, plead that the loss has occurred by an unavoidable, providential misfortune, where it has been caused by the very means he has himself introduced into the hull of the boat: and for which he must, on that account, be more clearly liable.

Again, on account of the habitual use of the steam power, which is attended with peculiar danger from fire, it becomes the more easy to purloin a rich cargo, then fire the boat, and make it appear that the cargo too had been burnt by a very common accident, from the furnace of the steamer. Such bad faith could not be apprehended in this case; but once permit the fleets of steamboats that run the Tennessee, or ply between St. Louis and New Orleans, to have such a manner of exempting the owners from loss by fire, and who can tell the consequences to the unwary, or the gain to the fraudulent. 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, “not to be liable for accidents by fire” — and they then make the -desired exception, the law of the contract. If there be then any grievance from the severity of the law, they hold the remedy at their own discretion. And I would here apply to all carriers who inveigh against the severity of the law, which, for general purposes, is wise, the same observation. They may and will relieve themselves, whenever essential to their interests, by special acceptances.

I am bound to notice the supposed custom, in favor of boats propelled by the agency of fire. Custom may well form an exception to a general rule of law: but it must be immemorial, certain, and reasonable; it ought to appear, by proof of much practice, that parties on both sides had acquiesced in the specific custom; and then it would be just to conclude that they had adopted the custom in place of a particular contract, for each case; and a custom so sanctioned would become, as a peculiar act of legislation, of which all persons must take notice, at their own peril. But the custom set up in the present case was very recent, as, indeed, is the use in this State of steamboats themselves, had been practiced in very few instances, and was quite uncertain and vacillating. We cannot yield up the well-adjudged and established rules of law, for a custom which seems to consist more in the practice, opinions, and wishes, for such a custom, by one party, than in any assent to its prevalence and adoption by the party on the opposite side.

We decide the case upon the general grounds of the law, and the custom, as that is evidently desired: and I therefore say little of the fourth ground of appeal. But inasmuch as the cotton was burnt outside of the steamer, in the night, and when she was at anchor — it would be hard to trace the loss to the fire, which is necessary to the engine only when in practical use, or under preparation. Unless we conclude first, that there was a want of careful vigilance over such fire, who can tell, when all were asleep, where the fire came from ? Let a jury re-consider the case.

A new trial is granted unanimously.  