
    Oliver Putnam versus Abner Wood.
    The owner of a ship, carrying goods on freight upon a circuit! us voyage, is bound to put her into a state of repair, at every port where she may be; and must answer to the freighter for any damage arising to his goods for want of such repairs, and this whether the defect m the ship was known or unknown to the ship-owner.
    Upon a shipment of an adventure where the shipper assumes the perils of the seas, and the ship-owner is to receive a portion of the profits "in lieu of freight, &c., if damage arise to the adventure from the perils of the sea, the loss is to be deducted out of the profits, and thus be sustained by the owner and freighter jointly.
    This was an action of the case upon a special agreement stated in the declaration.
    The material facts which appear in the case, from the report of Sewall, J., before whom the cause was tried, at the sittings after November term, 1806, are, that the plaintiff shipped on board the brig Industry, owned by the defendant, and bound from Newburyport to the East Indies, three thousand dollars, which, according to an agreement endorsed on the bill of lading, and signed by the parties, were to be invested in the produce of that country, and brought home in the said brig, on the account and at the risk of the plaintiff; and that in lieu of freight of the money out and goods home, and of a commission for purchasing, the defendant was to nave one half of the net profits, deducting all charges, except insur anee, interest, and the premium which had been given for the dollars ; that the vessel proceeded on the voyage, and after touching a. the Isle of France and Batavia, arrived at Calcutta on the first of August, 1804; that on these passages the vessel met with some bad weather, and two severe gales, which occasioned her to strain, and * the last of which caused a slight leaking; [ * 482 j but no material damage appears to have been received, except that after leaving Batavia, part of her sheathing was dis covered to have been beaten off; that on her arrival at Calcutta, she was hove down, and all the repairs, which appeared necessary, without taking off the sheathing, were made; and the master proceeded to take in the homeward cargo until the eleventh of August, when, being .about two thirds full, and loaded principally forward, upon trying the pumps the vessel was discovered to leak; and upon examination it was found there were four feet of water in the hold; that the water casks were then stove upon deck, and all other proper measures taken to prevent damage to the cargo, which it was found necessary to unlade, and the damaged part of which was sold at auction; that on the fourteenth of August the vessel was surveyed, and such repairs were made as were reported by the surveyors to bé necessary; after which a full cargo was taken on board, with which she proceeded to sea, and arrived in safety at Neivburyport, her intended port of discharge; that there appeared to have been no want of care and diligence in the officers and crew of the vessel in finding out the leak, and securing the cargo; that the sugars and other cargo, which had received a partial damage, had been purchased with the money of the plaintiff and other shippers, and of the owner, on a general account without distinction: and that the proportion, estimated against the plaintiff’s shipment and adventure, of the loss and expenses incurred upon the cargo in consequence of the accident, amounted to three hundred dollars and one cent. This sum the defendant retained on adjusting the accounts of the adventure with the plaintiff, and this sum the plaintiff demands in the present action.
    The judge directed the jury that, upon this evidence, and taking the most favorable view of the case for the defendant, the loss incurred, if the plaintiff’s adventure was liable to any deduction in consequence of it, ought to be divided between the parties in the same proportion in which the profits were shared. And a verdict was taken for the plaintiff, the damages being assessed according to that opinion; it being agreed that if the Court should be [ * 483 ] of opinion, upon the * judge’s report of the case, that the defendant is entitled to no deduction by reason of the leaking of the vessel, the verdict should be amended by inserting the sum of 300 dollars and 1 cent, with interest; if the Court should be of opinion that the plaintiff cannot recover any thing in this action, the verdict to be set aside, and a general verdict entered for the defendant.
    The cause coming on now to be heard, the Court called on Livermore, counsel for the defendant, to show how, on these "facts, his client was entitled to retain this money.
    
      Livermore
    
    argued that the ship is found to be in a complete state of repair, when the voyage commenced at Neivburyport; that this being but one voyage in the whole, it was as much as was to be required of the owner that the ship be tight, stanch and streng* and in every respect seaworthy at the commencement of it. Whatever damages arise after sailing, are perils of the sea. These the plaintiff expressly assumed on himself; yet by this action, he would throw the risk upon the defendant, thereby converting him into an underwriter on his goods, contrary to their express stipulation. The plaintiff’s proper remedy is against his own underwriter, if he made insurance ; if he made none, he must bear the loss himself.
    
      Chief Justice. Suppose the plaintiff had insured these goods a. 
      and from Calcutta to her port of discharge, would the underwriters be chargeable with a loss arising in the manner this arose ?
    
      Livermore.
    
    This contract between these parties having relation to one entire voyage, any supposed insurance must be considered as referring to such a contract and such a voyage.
    
      Jackson, for the plaintiff,
    contended that the ship-owner is bound, by the very undertaking to carry goods for others, not only to provide a vessel tight and stanch at the commencement of the voyage, but he is further bound, at every port where the ship may be, to make all necessary repairs. He' is responsible to the shipper of goods for every injury happening to them while on board the ship, which might have been prevented by human foresight and care j and this equally, whether the defects occasioning the damage ire known or unknown to the ship-owner If his own ship becomes incapable to perform the voyage, the master * is [ * 484 ] even bound, as the owner’s agent, if it be in his power, to procure another ship, and with her to transport the cargo to the port of discharge.
    But the facts in this case, it is further contended, show negligence and a want of due care. There is strong ground to apprehend that the defect in this vessel existed at the outset of the voyage ; but at any rate, there was a want of due attention while receiving the cargo on board at Calcutta. If it was at all allowable to load the vessel so much by the head as was done in this case, it was clearly the duty of those, to whom the charge of the ship was committed, to have observed more carefully the effects of thus loading her. It must be considered as gross negligence to delay an examination until there were four feet of water in the hold. But granting that this damage arose from the perils of the seas, and, therefore, that the plaintiff is liable to bear his proportion of the .css, then this verdict is right. The loss ought to be deducted out of the profits, in which case the defendant will take his share of it; and not out of the principal adventure, which would throw the whole of it upon the plaintiff.
    
      [Note. The Court were clearly of opinion with Jackson in this last position .]
    
      Livermore.
    
    Whether the master or mariners were chargeable in this case with negligence, was a proper subject for the consideration of the jury. It never was intended to refer that question to the Court.
    Suppose a ship receives a cargo on board here for Lrndon on freight, and meeting with damage on her passage, within the meaning of perils of the sea, whereby the cargo is damaged, it will not be said the owner is chargeable. Suppose, instead of taking in the cargo here, the contract were that she should go in ballast to Madeira, and there load; on her passage to Madeira, damage is received by the ship from the violence of the seas, but being undiscovered, until the goods are shipped, they receive damage, would the ship-owner be liable in this case more than in the one first put ? If he would not, as is confidently believed, neither is the defendant liable in this action.
    
      
      
        [Peace vs. Phillips, 4 Mass. 672.—Ed.]
    
   The cause was continued nisi, and at March term, 1808, in Suffolk, the opinion of the Court was delivered as follows by

* Parker, J.

[After reciting the facts from the report.] The defendant claims a right to deduct the whole sum from the plaintiff’s adventure, contending that it is a proper charge against him, being caused, as the defendant alleges, by perils of the seas, for which the plaintiff alone was accountable. But if he has not a right to retain the whole, 'he contends that the loss ought to be divided between the plaintiff and himself, and therefore that he has a right to retain one moiety thereof.

On the other hand, the plaintiff contends that no part of this sum is properly chargeable to him, because, he says, that the loss was occasioned by a defect in the vessel at the- time she received the cargo on board at Calcutta, and that, by such a loss, the defendant alone, being owner of .the ship, ought to be the sufferer.

If the loss were occasioned by the perils of the seas, according to the legal meaning of those terms, the plaintiff cannot maintain his action; because in the bill of lading, which is referred to by the parties in their contract, that risk is agreed to be taken by the plaintiff himself. But we are of opinion that the facts do not show that the loss happened from this cause. The gales, which weie met with on the outward passage, did no essential injury to the vessel; it was not found necessary to repair her at the Isle of France or at Batavia; but when she arrived at Calcutta, she was repaired with a view to fit her for her return voyage, although not sufficiently.

It is the duty of the owner of a ship, when he charters her, or puts her up for freight, to see that she is in a suitable condition to transport her cargo in safety; and he is to keep her in that condition, unless prevented by perils of the sea or unavoidable accident If the goods are lost by reason of any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter, upon the principle that he tacitly contracts that his vessel shall be fit for the use for which he thus employs her. This principle governs, not only in charter-parties and in policies of insurance, but it is equally applicable in contracts of affreightment .

* At the time this vessel received her cargo at Cal- [ * 486 ] cutía, it is obvious that she was not fit to receive it; for, without any marine accident, but lying in the harbor, she sprung a leak. In order to avoid the consequences of this misfortune, it is incumbent on the defendant to show that it was occasioned by perils of the sea; which he cannot do, unless the gales, which happened on her outward voyage, were the cause; and even then it was the duty of the owner, or of his agent the master, to have seen that she underwent a thorough and effectual repair; if she did not, however innocent the owner may be, he must abide the loss ; for it is of the essence of his contract, that his vessel shall be able to receive, retain, and transport her cargo.

But upon looking into the survey had at Calcutta, it is at least questionable, whether the leak was not occasioned by a defect existing before the commencement of the voyage from Newburyport. The persons appointed to make the survey say, in their report, that they found a butt on the starboard side quite open; and that two inches of the seam appeared never to have been calked at all; which alone, they say, would have been sufficient to let in what water was in the hold.

But whether the vessel was, or was not, seaworthy at the time ol her sailing from Newburyport, it appears that when at Calcutta she was totally unfit to receive her cargo, añd that, therefore, the defendant is not entitled to retain any thing out of the plaintiff’s adventure, to indemnify him for the loss .

According to the agreement of the parties, the verdict must be amended, so that the plaintiff recover the sum of three hundred dollars and one cent, with interest from the date of his writ.

Judgment was entered accordingly, as of this term. 
      
      
        Abbott on mapping, 146, &c.
     
      
       [A different rule is applied in the case of insurance.—Holdworth vs. Wise, 7 B & C. 794.—1 M. & R. 673.—Ed.]
     