
    
      R. H. Reaves vs. E. Waterman.
    
    1. Plaintiff shipped goods on board a vessel belonging to defendant, which, by the bill of lading, were to be delivered in Georgetown, “the dangers of the sea only excepted,” but which the consignee refused to receive, in consequence of their damaged condition. In an action against the owner of the vessel for the loss of the goods, the defence was, that the loss of the vessel was occasioned by the shifting of a buoy, which had been placed in a particular position, to indicate a particular channel. The proof was, that the buoy was in its proper place when the master left the port, but sometimes drifted, which had actually occurred, to the extent of one hundred and fifty or two hundred yards, some ten or fifteen days before the vessel was stranded; that the master, in approaching the harbor, steered for the buoy, which was visible, supposing it to be where he had left it; that when within a few lengths of the vessel of this object, and upon perceiving that it was wrong, he attempted to turn the vessel, but in doing so, her keel struck, by which the loss was occasioned.
    2. It was held that the excuse set up by the defendant, did not constitute one of those perils that come within the proper meaning of the exceptions to the liability of common carriers, which are called “acts of God, or unavoidable perils of the sea.”
    
      Before Richardson, J. at Georgetown, Spring Term, 1843.
    This was an action brought by the plaintiff against the defendant, as a common carrier, for the loss of goods shipped by plaintiff on a vessel of the defendant, called the Harvest, which vessel was wrecked on the Georgetown bar, in February, 1839.
    The plaintiff proved the shipment of the goods, and their value, which amounted to something over five thousand dollars. From the sale of the goods made by Wayne & Shaw, Auctioneers, under the direction of a board of survey, the plaintiff had received about sixteen hundred dollars, reducing his claim to about three thousand five hundred dollars. The ownership of the vessel was also proven.
    By the bill of lading, the goods were to be delivered to B. King, in Georgetown, “the dangers of the sea only excepted and the consignee refused to receive them, in consequence of their damaged state. There was testimony by a ship carpenter in Charleston, who was examined by defendant’s commission, that when he repaired the vessel in 1837 or 38, he thought she needed a thorough overhauling, and that she might run from Georgetown to Charleston, in ordinary weather, for two seasons safely ; at least, that he would not be afraid to ship in her the first season after her repair; the loss was during the second season after her repair. This evidence, together with the competency of the master and crew, was submitted to the jury, as properly belonging to them.
    The defence was (and this the Court regarded the main question at issue, or the one ruling the case,) that the loss of the vessel was occasioned by the shifting of the buoy, on what is called the Goose Bank Shoals, which buoy was placed there to indicate the Goose Bank Channel, and that the morning being smokey and no land marks visible by which to steer the vessel, the master, in steering for the buoy, found his vessel suddenly shoaling, tacked the vessel to keep off, when, as she got nearly round, the keel of the vessel struck, and the tide being at quarter flood, together with a light wind from E. N. E. the stern of the vessel was thrown upon the shoal, where she thumped until she started some of her timbers and commenced leaking, from which she eventually filled, and the goods were damaged.
    The testimony of the master, Capt. Thomas, was, that he had been absent from Georgetown for some time, on a trip to Long Bay, from Charleston and back; and that when he went out, the Goose Bank Buoy, through which channel he passed, was in its proper place; that he left Charleston the morning before the wreck, and next morning discovered South Island. When beating up and looking out, he saw1' the Goose Bank Buoy, and not being able, in consequence of the morning being smokey, to discover any land mark or the light house, he steered for the buoy, supposing it was where he had left it. That when he was within two or three lengths of the vessel from the buoy, the man at the stern, who was heaving the lead, cried out, quarter less twain, which was the first intimation he had that the buoy was wrong. That upon this announcement, he immediately put the vessel in stays, and as she was turning, her keel struck, and the tide and wind immediately sucked her in upon the breaker, when she thumped her side upon the breaker for some time, and commenced leaking; on the rising of the tide he got in over the bar, but the wind shifted and threw the vessel back upon the breaker, where he remained until some time in the evening, and was forced, with his crew, to abandon her, and he then came to town and reported to the owner. The wind, at the time she struck, was right from E. N. E.
    .. Mr. Marsh,, the pilot of the bar, proved the shifting of the buoy some ten or fifteen days before the occurrence; said it had drifted some hundred and fifty or two hundred yards, from its place in the channel, to the edge of the Goose Bank Shoal. He said the buoy was often drifting, but was not so often out of its place as would prevent him from taking it as a guide under the circumstances described by Thomas. He said there was another channel, which was called the Main or Ship Channel, and that two vessels came in on the same morning at the latter channel, before the accident. He said the bar was intricate; he thought Thomas’s course was the right one, and the one he should have pursued, both as to coming in at the Goose Bank Channel, which was as often used by the coasters as the main channel, as well as his conduct afterwards.
    Capt. Martin approved of Thomas’s conduct, in the same manner as Marsh, the pilot, and so did one or two other masters of vessels who were introduced.
    C. J. Crawford, who was a passenger on board, said that the morning had been smokey, but that it had cleared up; that before the vessel struck, he could distinctly see the light house and North Island and trees on shore; that while the Captain was steering for the buoy, a negro of the defendant’s named Marsh, (who it appears was a pilot, and had been sick in Charleston, and was coming to Georgetown with Thomas to his master,) cautioned the Captain that if he went where he was going, he would go upon a breaker, when Thomas said it was flood tide and he could go over any where; that when the man at the stern cried quarter less twain, the man at the Iielm pushed it to the left, as he thought to turn the vessel, and Thomas sprang to the helm, shifted to the right, and the vessel went on head foremost — he said he had been twice at sea before, and about one o’clock, requested the Captain to set him and his negroes on shore, which he did.
    For the defendant, it was contended that the proof made, excused the carriers; that it was a peril of the sea, and one that the Insurance office would be liable for, if the goods had been insured, which was not the case. It was contended on the other hand, for the plaintiff, that the loss of the vessel not being the immediate result of the act of God, which human prudence and foresight could not foresee or prevent, did not bring it within the excepted risks; that it was a mistake or error of the Captain, for which the owner was liable.
    The presiding Judge charged the jury, that if they found that the vessel was sea-worthy, and the Captain and crew competent, the whole case was narrowed down to the question of law, of whether or not the excuse set up by defendant (of the truth of which they must judge,) discharged the carrier’s liability ; and upon this point, he charged that the excuse set up by the defendant was not a peril of the sea, and that it did not come within the excepted risks, and that consequently, the owner was liable for the loss.
    The jury found a verdict for the defendant.
    The plaintiff moved the Court of Appeals for a new trial, on the following grounds.
    1. Because his Honor, the presiding Judge, expressly ruled on the trial, that the shifting of the buoy, and the master of the vessel steering thereto, by which the vessel is contended to be lost, was not a peril of the sea, and not sufficient to excuse the carrier from liability for the loss of the goods, and there being no other evidence to excuse him, the jury found a verdict for the defendant, in direct opposition to the charge of his Honor, the presiding Judge.
    2. Because the finding of the jury was contrary to law and evidence.
    
      Harllee, for the motion.
    The main question in this case is, whether or not the defence relied on, viz the removal of the buoy, and the loss of the vessel in consequence of steering to it, is such an accident as will excuse the carrier from liability. Most of the other questions of fact, in relation to his duties, being concluded by the verdict of the jury.
    It is true that it has been said, that what is and what is not an act of God, is also a question for the jury, but this must be taken subject to the qualification, that the jury must be governed by the law and the instructions of the court, for it seems needless to say, that where that is found to be the Act of God which was caused by the palpable negligence, misconduct or rashness of man, a new trial must be ordered.
    As the jury found in direct opposition to the instructions of the court upon the law in this instance, the question to determine is, whether the court was right in its instructions. Did the defence relied on, amount to an act of God, or such inevitable accident as will excuse the carrier from liability.
    A carrier is, at common law, in the nature of an insurer, and is not discharged in case of the loss of goods, unless occasioned by the act of God, or the enemies of the State. Jones on Bailments, 104. 2 Kent. Com. 597, Story on Bailments, 319-20. Ewart vs. Street, 2 Bail. 157.
    In all cases of loss, the onus probandi is on the carrier, to exempt himself from liability, for, prima facie, the law imposes the obligation of safety on him. Story, 338. Forward vs. Pittard, 1 T. R. 27.
    The question of liability, generally, is not so much whether the carrier has been guilty of negligence, as whether the loss comes within the exceptions. Story on Bailments, 320. Coggs vs. Bernard, 2 Lord Raymond, 909. Lord Holt says, this is a politic establishment, (fee. as in case of robbery, collisions, (fee.
    Carriers and their servants, being generally the only witness es, the loss should be from a cause that is notorious. Story, 320. 2 Bail. 157. But if it is from negligence, he is liable, though it is á danger of the sea. Abbott on shipping, p. 3, ch. 4. 5 East. 428. Elliott vs. Rossell, 10 J. Rep. 1.
    Act of God, danger of the sea, inevitable accident, all mean the same. Story on Bailment.
    In Ewart vs. Street, it is said the loss must be occasioned immediately, by some accident from natural causes, which could not be foreseen or guarded against; but when the injury is only a remote consequence of such act, and results immediately from the intervention of human agency, or might have been foreseen or guarded against, the carrier is liable. To excuse him, it must happen in spite of all human effort and sagacity, 3 Kent, 316.
    Was there here any cause to excuse 1 The wind and weather was fair, and. there was no force to drive the vessel on.
    This ease does not fall within the exception of the vessel striking against an unknown shoal at the entrance of a harbor; Abbott, part 3, ch. 4, sec. 1. Or of boats running on unknown snags in the bed of a river. Rice Rep. 107.
    It will be recollected, that in both of these instances, the vessel was in the proper channel and course; but the Harvest was not only out of her course, but the shoal was well known.
    Was the buoy or compass the proper criterion? If the buoy, then he would be excused for running the vessel on shore after it. Suppose the buoy had not been there, and he had struck upon the shoal, he would have been clearly liable. This shews that the compass was the criterion, and that the Captain was not competent.
    But it is said it was a mistake, It was a sad mistake, to take the buoy for his bearings and run upon a known shoal. 3 Camp. 350. 1 Starkie Rep. 157.
    Suppose a pilot was towing a vessel into harbor, and should run ashore on a known shoal, would not the carrier be liable ? He is liable then, if he trusts pilots’s marks.
    But what immediate consequence of an accident arising from a natural cause is there in it? It is said the removal of the buoy was an accident from a natural cause; but what immediate connexion was there between this and the loss of the vessel %
    
    The vessel was lost by steering for the buoy where it was. The running out of the track and steering for this object was the immediate cause.
    Steering for a false light would not excuse the carrier. The removal of the buoy was hardly a natural accident — it had been frequently moved, an every day’s occurrence, and the policy of the law would raise the presumption that he knew it, and knew it was not to be relied on.
    After a shoal or snag is discovered, it no longer excuses the carrier. The law compels the Captain to know it. So it raises the necessity for the Captain’s knowing his course without the aid of the buoy, and of knowing it was no guide. The buoy' had been moved two weeks, and was near the carrier’s residence, But look at the consequences.
    
      If the removal of the buoy, and steering for it, were held an excuse, all a master would have to do when stranded on a shoal near a harbour, would be to remove the buoy, and his defence would be complete.
    This would be defeating the object of requiring the act of God to excuse the carrier. It could be made the act of man to defeat the rights of the owners of goods ; the temptation to perjury and means of imposition and fraud:
    Again, it is against the policy laid down by Lord Holt, in refusing to excuse where robbers had entered a vessel and robbed it. The carrier might combine with robbers:
    What would be easier than for a Captain to combine with the pilot or others, to move the buoy and wreck the vessel, by which they could share the salvage or remove the goods, under the pretence that they were lost.
    To excuse in this case would be an innovation, engrafting á precedent dangerous in its consequences, immoral in its tendencies, and destructive of the safeguards that now exist to enforce a carrier’s liability.
    It would unsettle ancient and loüg-tried principles fvhich are-well known and certain to all, and throw into the most important relation, uncertainty and doubt:
    It would weaken the confidence of merchants and shippers, as necessary to commerce,as the sun to vegetation.
    
      B. F. Hunt, contra.
    The case is of the last consequence to the trade of the country. If the Court converts those losses, which are commonly understood to be covered by policies of insurance, into losses which fall upon the carrier, they take from commerce its chief security. The liability of the insurer begins at the very point where the responsibility of the carrier ends. And the reverse is true, the liability of the carrier ceases where that of the insurer commences. So that in order to test the principles of this case, I shall prove that if the cargo had been insured, the insurers would have been liable on their policy, and if I succeed, I prove conclusively that the carrier is not liable.
    The security of commerce requires that the court should not, by extending the liability of the vessel beyond what is the com-m'on understanding of its responsibility, so far limit the liability of insurers, as to render a merchant wholly insecure. Owners of vessels are not often responsible for heavy losses. But insurance offices are usually founded on ample capital, and if a losg occurs, they have the means of prompt payment. If a vessel is lost in coming into a harbour by the error of judgment of a pilot, a public officer appointed for that purpose; or if a buoy, placed by public authority as a mark to steer by, is driven by storms from its moorings and leads astray a prudent Captain and loss accrues, and the court rules that it is not a loss by peril of the seas, they thus vacate the policy and leave the merchant to look to an insolvent owner for his rich cargo. It will then become necessary to insure against the courts, who transfer to the carrier the liability which the mercantile world all intend should be visited upon the underwriters.
    This policy renders shipments so hazardous, that none but irresponsible persons would appear as carriers, and prudent merchants would be at a loss to secure themselves from the ruin which a heavy loss might produce.
    The law is made for the community, and should be administered as a practical science. No insurer would doubt his liability if a vessel was lost by false lights leading the Captain astray. Yet, if the presiding Judge is right, whatever is not the direct act of God is no excuse, and the insurers are released and the ship and owners fiable. What are perils of the seas, and among merchants well understood, and both owners of vessels and insurers make their contracts in reference to that common understanding. Whatever loss results from causes to which navigation is liable, over and above the sea-worthiness of the vessel, and the competency and good faith of the Master, are usually understood as within a policy against the perils of the sea.
    If a light-house was destroyed, and a vessel arriving shortly after, and seeing no light-house, should be misled, get ashore and be lost, if the Judge is right, the insurers would not be liable; and yet, every merchant knows the loss of a light-house, as the Eddystone, the shifting of a buoy are perils to which navigation is exposed, and against which he insures. The policy of the law does not require common carriers by sea to be made responsible for this kind of losses, but that they should be insurable.
    In this case, the Pilot and Captains proved that Capt. Thomas steered correctly for the buoy, and when, by his lead, he discovered that he shoaled his water, he instantly put his vessel in stays, and she was in the act of coming round, when her keel struck and she was forced on the shoal by the wind and tide. No blame is imputed to the Captain. A dark day left him only the buoy and the lead, and he paid due regard to both, and still was stranded. To tack, was the most prompt mode of changing direction. He had no room to wear. That would require several lengths of his vessel — by tacking, he immediately stopped his headway and began to fill, when the heel striking, his vessel became unmanageable. All this because he was at sea, and his best judgment did not enable the Captain to do more. See Story on Bailments, 17, 318, 330.
    In case of collision at sea, Story, 332, the vessel injured was not in fault; it is a peril of the sea; and yet all the parties are human. It is not the act of God. In the case of loss by rats, if a cat is on board, so that due caution is used, and the vessel and cargo are lost, it is a peril of the seas; Story, p. 331. When a vessel runs upon an anchor, where the vessel to which it belonged was in sight, it was carelessness; but if the vessel had slipped her cable and left her anchor, on which the vessel struck, it would have been a peril of navigation. So where a mast of a vessel was visible, and the ship run on it, it was the carrier’s fault, because, by due caution, it might have been avoided, p. 334, (fee.
    The whole doctrine is, that when the loss arises from exposure to causes which attend navigation, the insurer is liable, and not the carrier. Where, on the contrary, the loss arises from an insufficient vessel, or a careless or incompetent Captain, the carrier is liable and not the insurer — both cannot be liable for the same loss, and the court should be cautious, how, by fanciful distinctions, they throw losses upon carriers, which the general usages of trade refer to the perils of the seas, as it would destroy all the securities of prudence against losses at sea, and leave merchants to their precarious chances of satisfaction from insolvent carriers, against whom it is possible to strain the law too far, as ivas done in England, which led to legislation to restore the law to a practicable system, when a carrier was made liable for the effects of general conflagration.
   Curia, per

Richardson, J.

Does the displacing of a buoy, by some supposed natural cause, ten or fifteen days before the Harvest was stranded, constitute one of those perils that come within the proper meaning of the exceptions to the liability of common carriers, which áre balled “acts of God,” or unavoidable perils of the sea? Such is the question for this Court.

In all cases of loss, an obligation of a safe delivery of the goods intrusted to him being necessarily imposed upon the carrier, he must bear the loss; unless he can shew that it was caused by an inevitable casualty, i e, by the act of God. This is laid down, not only by the best jurists, see Story’s Bailments, 339, 2 Kent 597, but is recognized in our own courts. See Ewart vs. Street, 2 Bail. 157, Smith vs. Niolon, 2 Bail. 421, and many other cases.

The act of God is commonly illustrated by such natural convulsions as tempests, lightning, earthquakes, the unknown shifting of shoals, and the like.

In Forward vs. Pittard, 1 T. R. 33, the Court said, “ the act of God meant something in opposition to the act of man;” and the general characteristics of such perils are very intelligible.

It is vain to arraign the principles that impose sueh strict accountability upon common carriers.

It is nearly the same upon Inn keepers, owners of ferries, and keepers of livery stables, and for similar reasons. The goods delivered to a carrier, the guest and his baggage at an inn, the horse at a public stable, and especially the first, are all placed within the custody and exclusive control of these depositaries respectively. And the customer or freighter, being generally strangers to the inn keeper or carrier, justifies the strong expression, that in such cases, “ distrust is the sinew of wisdom.” 1 T. R. 27. Story, 319.

This strict accountability of common carriers, has been found necessary in all commercial communities, and has been the same for centuries. Story, 319. 2 Kent, 502. It is established, says Judge Story, for the safety of all persons who are obliged to trust such persons. J might add, that a successful carrying trade depends upon it. And the very rare exceptions to the rule, made by private contract, and which is so easily required by the carriel', prove the wisdom, the necessity, and the convenience of this strict law. Thus, then, it is adopted almost universally in practice, when it might be avoided by contract, between the carrier and freighter.

Now then carriers, being so liable prima facie to all losses, has the defendant brought himself within the allowed exception 1

The act of God, when set up as an excuse, must be the immediate, not the remote, cause of the loss. In the latter sense, any occurrence or loss may be called the act of God. Abbott on Ship. ch. 4, sec. 5 & 6. Story, sec. 515.

In the case before the court, the buoy had shifted its position, ten or fifteen days before. This is what led captain Thomas astray, and it constitutes the sum of the defence.

But it had often shifted its position before this occurrence ; and such evidence proves the character and nature of buoys. They are not like promonteries, or head lands, <fce. immovable in their nature.

They are important, but both secondary and artificial marks to steer by, and neither natural, nor immovable by ordinary human means.

Can then the not unusual occurrence of the shifting of such a mark of the channel be called, with any propriety, the immediate act of God, causing the stranding of the Harvest'?

The channel remained as before, and all the natural indications of it. Likewise can the shifting of this one means of ascertaining it, be said to have caused the stranding, and to have rendered it inevitable'?

Is there any thing inevitable by human means, either in the shifting of the buoy, or the stranding imputed to such shifting'? Neither can be admitted. For the buoy might have been moved readily by human means. It often shifted, and was often actually so replaced; and great human caution might have navigated the channel without the buoy, or carried the schooner up the ship channel.

The court say, in the case of the carrier vessel, from Selby to Hull, Harper vs. Corbet, 2d Bing. 205, Story, 333, the owners are liable for every injury that might have been prevented by human foresight; and, assuredly, the same accountability applies to the case of the Harvest. Is there any thing in the shifting of the buoy proximate and imme-. diately causing unavoidable loss'? On the contrary, has it, more than a remote bearing upon the loss, or such as may excuse the captain personally % Take the nearest analogous cases for illustration. Two vessels come into collision, in a dense fog; here the fog is the immediate, natural, and unavoidable cause of the collision.

A shoal unexpectedly changes its bed, and a ship grounds upon it. Here the unknown shoal is the immediate and sole cause of the stranding.

The same may be justly said of unknown snags, or sawyers in the river navigation.

In all such cases, the cause of the loss is unseen and unavoidable, and a blow is struck against which the power of man cannot guard the vessel. Such are the blows that are within the inevitable perils of the sea, and which “have too familiarly,” says Judge Story, “been called the acts of God, in contradistinction to human acts;” but such terms are used in order to give an intelligible conception of the intended distinction between the acts that protect the carrier, and such as do not. The terms have been fully expounded, and the legal meaning constitutes the distinguishing mark of this species of bailment.

It is difficult in many cases, to lay down the plain line of demarkation, especially where, as in this case, the carrier has a reasonable excuse for his not using great sagacity, and great human exertion. The captain was probably surprized upon discovering where the buoy floated, and at his own mistake in being altogether governed by it. But human pains might have guarded against such surprize and mistake.

He might have suspected the removal of the buoy, and not gone on relying upon it, as far as he did, and then when it was too late, discovering that he was in shallow water, change his course. Great sagacity, and human caution, might have done so before.

It appears to my understanding, that if ever this court permits the reversal or shifting of such a mere artificial and moveable mark of the proper channel to be classed among inevitable perils, or acts of God, that cause and excuse the stranding and protect the carrier, then we break down the politic establishment of the law against common carriers, and give beginning to the application to them of quite another species of bailments; that of carrying for hire, by private conveyance, and not as common carriers , and which bailment is noticed by the best writers. Such persons are mere bailees for hire, and incur the responsibility of ordinary diligence, Story, 332; 2 Kent, 597 ; but are not like common carriers, insurers against all but the excepted perils. Story, 319.

It is by confounding the plain distinction between these and common carriers, that we hear of going against common carriers, by enforcing the strict doctrine in one district, and protecting them in another, in the latter instance by assuming a supposed more generous and rational conception of the law of carriers, not perceiving that they would apply a well known species of bailment; but inapplicable to common carriers. Because, the strict accountability of common carriers and ferrymen, as well as that of innkeepers, has been fully recognized in our own courts. The cases may be seen at a glance from Rice’s Digest, title “Common Carrier.”

This court, therefore, concurs with the presiding Judge, in applying the settled doctrine of the accountability of common carriers, to the loss of the Harvest; and a new trial is ordered.

O’Neall and Butler, JJ. concurred.

Evans, J.

dissenting. I do not concur in the opinion of a majority of the court. I do not mean to enter into a discussion of all the principles involved in the case, but to state, very concisely, my views. About the great and leading principles of the law of common carriers, not much difference of opinion will be found to exist. The difficulty is in the application, and much of that arises from confusion of ideas, as to what is meant by the act of God. By it, I understand, physical causes, as distinguished from human agency, such as winds, waves, lightnings, rocks and shoals. If a loss happens in consequence of any of these causes, the carrier is excused; but this is to be taken subject to the limitation, that proper prudence and skill has been exercised to avoid the effect of these physical causes. Thus, if a vessel has been lost in a storm, the carrier is excused ; but if he puts to sea from a safe harbor during the gale, or at the instant of its approach, I apprehend he would be liable; so, also, if a vessel run on a rock or shoal and is lost, the carrier is excused, but not if the rock or shoal was known and could have been avoided. The error in these cases seems to me to be this, that the loss is referred to the rashness and ignorance of the carrier, as its proximate or immediate cause, when it should be referred to the storm or the rock; and the rashness or ignorance of the carrier, as facts, which deprive him of the defence which he would otherwise have, that the injury was occasioned by the act of God. To apply these principles to the case under consideration — the loss of the Harvest was occasioned by running on a shoal. Here the shoal was a physical agent, and as such would excuse the carrier, but then if he ran her upon the shoal from ignorance, rashness, or imprudence, he is thereby deprived of his excuse that the loss was occasioned by the act of God. If the shoal had changed, and not the buoy, no doubt the carrier would have been excused, because this fact being unknown, there was an entire absence of any of those circumstances of ignorance, rashness or folly, which would charge the carrier, notwithstanding the immediate cause of the loss was what is generally called the act of God.

Now it does seem to me, that what shall amount to such degree of ignorance, unskilfulness or folly, as shall deprive the carrier of such excuse, must, of necessity, be determined by the jury. The law cannot prescribe it. The location of any thing concealed under water, as this shoal was, can only be known by its relative position to other objects. Among the visible objects which indicate where the shoal was not, was the buoy, set there as a guide to the mariner. It is said the buoy had shifted before, and was, therefore, no certain guide, but Marsh, the pilot, said it had never before drifted so much as would prevent him from taking it as a guide, under the circumstances described by the captain of the Harvest. I cannot distinguish between such an artificial object and a natural one. If the channel had been indicated, by its relative position to a visible sand bank or island, the position of which had been changed, as was that of the buoy, by the violence of the storm, I should suppose the carrier in such case could hardly be held liable,

The buoy was an object placed by the government to indicate the channel. It was moored as securely as human skill could secure it in its place; it had yielded to the violence of the tempest, and so also might a sand bar or sand island, and I can see no reason for making a distinction between the two cases. Unless, therefore, this court is prepared to say, that the captain of the Harvest was bound to remain at sea until the weather was so fair that he could see the light house and other objects, by means of which he could have ascertained that the buoy had changed its position, and no longer indicated where the channel was, as it formerly did, the verdict of the jury should stand.

Wardlaw, J.

Supposing the verdict to have established the facts in the manner most favorable to the defendant, I concur in dissenting.  