
    D. & J. Ewart v. T. & T. Street.
    In an action against a carrier it is sufficient for the plaintiff to prove that his goods were damaged. It lies upon the carrier to shew, that the damage was occasioned by causes, which exempt him from responsibility: It is not enough to prove that he has used the' utmost care and diligence.
    To exempt a carrier from responsibility for damage, sustained by wbat is technically called the act of God, it must have been occasioned immediately by some accident from natural causes, which could not be foreseen, or guarded against: Where the injury is a remote consequence of such an accident, and results immediately from the intervention of human agency, or might have been foreseen and guarded against, the carrier is liable.
    Tried in the City Court of Charleston, at January Term, 1830.
    The defendants were owners of the ship Lafayette; and this was an action against thpm, to recover the damages sustained by plaintiffs’ goods oil board that ship, on her voyage from New-TorÉ to Charleston. The plaintiffs proved, that the goods were put on board in good order, and that when they were landed, they were found to have been damaged by water.
    On the part of the defendants, it was proved, that the La Fayette was a staunch, sound, and sea-worthy, vessel ; that she was properly stowed, that she leaked but little during the voyage, but was nevertheless regularly pumped, and in all respects prudently and faithfully navigated. There was some evidence that she was nine inches by the head; but it seemed doubtful, whether this was not a mistake; and she was proved to be so uncommonly well dunnaged, that no injury to her cargo could possibly have been occasioned by this defect in her trim. She arrived at Charleston in September, and hauled into Vanderhorst’s dock: and the weather threatening a gale, she was, by the advice of the pilot, moored with her bows to the river. The bottom of Vanderhorst’s dock has a considerable declivity, and vessels grounding there on the fall of the tide, do not lie on an even keel. For this reason they are generally moored stern out: but all the witnesses agreed, that in the event of a gale the position of the Lafayette was the more judicious. At the fall of the tide the Lafayette grounded, and the witnesses were of opinion, that the plaintiffs’ goods, which were stowed in the bows, were damaged at that time. A number of witnesses were examined; but there was a difference of opinion among them, as to the damage having been occasioned by water, already in the ship, settling towards the bows in consequence of the declivity of the dock: or whether in taking the ground, the stern of the ship had not rested on a log, or other hard substance, by which she had been strained, and made to leak, so as to admit water from the dock. Most of them, however, thought, that from some cause, the ship had sprung a leak whilst in the dock. The dock had been searched, as far as it was practicable, but no logs had been discovered. The ship after leaving the dock never touched ground again, until on her return to New-York, she was hauled up on a marine rail-way for examination and repair. It was then discovered, that a large portion of her false keel, towards the stern had been broken off. This the witnesses thought must have occured from her resting on some hard substance in Vanderhorst’s dock; but they admitted, that if the keel were in a state of decay, it might have been crushed in hauling on the railway.
    His Honor, the Recorder, charged the jury, that all the evidence of the . sea-worthiness of the vessel, went for nothing in opposition to the fact that the plaintiffs’ goods were damaged. That it was incumbent on the defendants to account for that damage ; and if they could not shew, that it had been occasioned by inevitable accident, the presumption of law was, that it had arisen from the unsoundness of the ship, or the negligence of those who navigated her. That if the Lafayette had sprung a leak in consequence of her grounding on a log, not known to be in the dock, the defendants might perhaps be excused. But there was no evidence of any such log. Its existence was merely surmised, and as far as the proof went, it was the other way. It went, indeed, very far to shew, that the ship was not seaworthy, that she should spring a leak, merely from grounding on the mud in the dock. If, in fact, there was no leak, and there was no more water in the Lafayette, than will at times be found in the tightest ships, it was no excuse for the defendants, that the damage arose from the water settling towards the bows in consequence of her being moored with her bows towards the river, to meet an apprehended gale. They were bound to foresee and guard against the consequences of the position in which they moored her; and were responsible for the damages which ensued. .
    The jury found for the plaintiffs; and the defendants now moved to set aside their verdict, and for a new trial, on the ground of misdirection by the Court, and that the verdict was against law aud evidence.
    Ring, for the motion.
    Contended that the case had not been fairly submitted to the jury; and if the Court could see that justice had not been done by their verdict, a new trial ought to be awarded.
    The evidence had been full and uncontradicted, that the Lafayette was a staunch vessel; and that the damage to the plaintiffs’ goods could have proceeded from no other cause than a leak, produced by the strain which the vessel received in the dock. It was greatly immaterial whether this strain was occasioned merely by the unevenness of the dock, or by a log or other hard substance lying in it: the latter would seem to have been the true cause, from the injury sustained by the keel. But either way it was analogous to the case of a ship striking on an unknown shoal or rock, in which it had always been held that the carrier was not liable. Williams v. Grant, 1 Conn. Rep. 447. Abbott on Shipping, part 3, c. 4, s. 6. Roecus, Not. 54, Strac. da nautis,pars. 3, num. 33. Other vessels had lain in Vanderhorst’s dock without injury, and the damage must be regarded as one proceeding from a danger unknown.
    It is true that carriers are liable by law for many accidents which are inevitable, such as for fire, theft, robbery: But this is only where human agency might be concerned, and the rule is founded on rigid principles of public policy. It is every where conceded, that if the injury was not produced by human agency, but by what is technically called the act of God, and there is neither misfeazance, nor malfeazance, negligence, nor default of any kind, the carrier is not liable. Forward v. Pittard, 1 T. R. 27. Garside v. Trent, 4 T. R. 581. Jones on Bailments, 120.
    In Amies v. Stevens, 1 Str. 128, a hoy was sunk by a flaw of wind in attempting to shoot London Bridge: In Colt v. M’- ■ Mechen, 6 Johns, 160, a sloop beating up the Hudson River, ran aground in consequence of a sudden failure of wind, and sunk: In both cases it ivas held that the owners were not liable, it ireing proved that they had used all diligence, although the danger might have been avoided by waiting for better weather. The present case is much stronger, for whilst all diligence and care were used, there was nothing that could have been done to avoid the danger.
    The case of Bason v. The Steam Boat Company, Harp. 262, is not in point. Had half the diligence been proved there, that was proved to have been used here, the decision must have been different. Had the depth of water around the Steam Boat been ascertained by sounding, the danger of her position would have been discovered, and might immediately have been avoided. Every precaution, that human prudence could suggest was resorted to in the present case, and the owners ought not, therefore, to be made responsible for an accident, which they could neither foresee, nor avoid.
    Petighu, contra.
    
    The only question is, whether the verdict is contrary to law. The plaintiffs proved that their goods went on board sound, and came out damaged. That is their whole case, and it entitled them to a verdict, without going a step further. In all the cases where the carrier has been discharged, he has been able to tell how the damage was occasioned. This was attempted here, but the proof failed.
    It avails nothing to prove that the ship was staunch, and the master careful. That would go to shew that no damage did happen; but the plaintiffs’ goods shew the reverse. The defendants must account for the fact; not assert its impossibility. It is said to be a hardship on the carrier to have the onus probandi thrown on him: but it is not so. He hás • all the evidence under his control. If there were a premium for carelessness, it might be different; but so long as it is the interest of every one on board to prove that he did his duty, it can never be difficult to prove that a loss did occur by inevitable accident, if such was the fact. Unless the carrier is bound to render a reason for the damage, the freighter is without protection.
    The cases relative to unknown shoals and rocks do not apply. There was neither shoal, nor rock, nor log, in Vanderhorst’s .dock: if there was, it was not in evidence, and the jury have not found it. Even if there had been, the defendants were bound to have known and guarded against it. Abbott, part 3, c. 3. s. 9. The case of Bason v. Steam Boat Company, and that of Smith 
      v. Shepherd, Abbott, 3 part, c. 4, s. 1, are in point. They are indeed much stronger; for in both cases grounding on a shoal was the cause of the damage, and in the latter of them, besides a recent change in the declivity of the shoal, occasioned by a flood, there was an actual log in the way: and yet in both cases the carrier was held liable.
   Harper, J.

delivered the opinion of the Court.

We might very well conclude from the evidence before us, that there was no degree of neglect in the master of the vessel; that the ship was moored, so far as could be foreseen, in the most judicious manner; and that she was staunch and seaworthy: but we cannot be assured that the jury have found this. They may have concluded, contrary to the opinion of the witnesses, that there was mismanagement, and determined from the fact of the ships springing a leak under the circumstances, that she was not seaworthy. It was rightly said on the part of the plaintiffs, that it is enough to show the damage done, in order to render the defendants liable; and the burden is on them to shew, that it was occasioned by such a cause, as will exempt them from liability. The jury may have decided that this was not sufficiently shown.

It is, perhaps, not practicable to define accurately the sort of accident, that comes under the denomination of the act of God; nor is it necessary to do so. Certainly it is not enough that there has been no negligence on the part of the carrier, and that he has used all the ’precautions which ordinary prudence would suggest. It is said by Lord Mansfield in the case of Forward v. Pittard, 1 T. R. 33. that the carrier is in the nature of an insurer. “ To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king’s enemies, or by such an accident as could not happen by the intervention of man, as storms, lightning and tempests.” The carrier is rendered thus liable on motives of public policy; and his liability without any fault of his own, is not confined to the case of loss by robbery, where the danger is that he may combine with the robbers: though Sir William Jones in his treatise on Bailments, p. 121, seems to think differently. The case of Forward v. Pittard, 1 T. R. 27, was of a loss by fire not originating in the place where the goods were kept, and yet the carrier was heid liable.

The policy of the law supposes that there may be negligence impossible to be detected; and therefore renders the carrier liable, unless the loss can be referred to that particular kind of inevitable accident called the act of God. “Whatever definition we may give to it, I cannot perceive that the loss in this case is referable to such a cause. We cannot conclude on the facts that there was a log or other substance under the keel of of the vessel, thrown there accidentally, without the chance of detection. The act of God seems to involve some notion of an accident from natural causes, impossible to be foreseen, and therefore impossible to be guarded against — such are the instances of storms, lightning and tempests, enumerated by Lord Mansfield, 1 T. R. 33. Such is the instance of a shoal or bank unknown to navigators, or suddenly formed in the ocean. But in the present instance the loss must have originated from causes that might have been foreseen, or from the agency, (however well and wisely intended) of man. The bottom of Vanderhorst’s dock was known, and it might have been foreseen that the water must be thrown to one end of a vessel settling on a declinin g bottom. It is not enough that other vessels have moored in the same dock, without experiencing such effect; the cause was obviously calculated to produce the effect. We cannot say that it was impossible to avoid the danger, thus capable of being foreseen, by going into a different dock, or mooring in a different manner. The case of Smith v. Shepherd, Abbott on Shipping, part 3, c. 4, s. 1, is a strong one to shew that there need not be actual negligence to charge the carrier. The case further establishes that to exempt him, the loss must be occasioned immediately and directly, and not consequentially by the act of God. We cannot perceive that the loss was thus occasioned in the present instance, and the motion is therefore refused.

Motion refused.  