
    LAWRENCE v. M’GREGOR.
    Carrier — bill of lading — memorandum—usage—deviation—increased risk— diligence — loss by collision.
    Although the bill of lading is the contract of the parties, its execution may be affected by a common usage of the trade — such usage being supposed to have been contemplated by the parties; but no understanding to vary the provisions of the bill of lading is admissible.
    Where there is a memorandum on the margin of the bill at its execution, touching the maimer of carrying, it may be regarded as part of the contract.
    If a carrier would secure the right to deviate from the usual course of the trade, he should stipulate for it in the bill of lading.
    A carrier is liable for all damage which does not arise from the act of God or the enemies of the state.
    He undertakes for the safety of the freight, and for the proper conduct and care of the vessel; he is bound not t.o expose them to extraordinary risk, and if he deviate from the common course of the navigation, and the goods are lost during the deviation, even by the act of God, the loss falls on the carrier.
    If two ways are known to the navigation of overcoming an obstacle, one more hazardous than the other, the carrier takes the most hazardous course at his own risk.
    A usage to be regarded in navigation must he general and certain, not fluctuating and dependent on price.
    Whether due diligence has been used to avert loss is a question for the jury.
    If the loss occurred from the carelessness or wantonness of the navigators of another vessel brought into collision with the vessel, that does not excuse the carrier; he is answerable to the shipper, and the owners of the vessel occasioning the accident refund over to him.
    Assumpsit upon a bill of lading against the owners of the steam boats Tecumseh and Amazon, for the loss of goods shipped by the plaintiffs. Plea, non assumpsit.
    The bill of lading was for merchandise shipped on the Amazon to-New Orleans. On the left margin of the bill was a memorandum in these words: “Shipped at Cincinnati on board steamer Tecumseh, to be re-shipped at Louisville per steamer Amazon.” It was 194] *admitted that the Tecumseh and Amazon were both owned by the defendants, and that in certain stages of the river, the Amazon, being the largest boat, was engaged in the lower trade below the falls of the Ohio, and that the Tecumseh was emjiloyed in the trade above the falls, and in taking freight to the Amazon below. When the goods in dispute were shipped, the Tecumseh was at Cincinnati, and the Amazon at Shippingport.
    A great many witnesses were examined before the jury. From the testimony it ajipeared that until about 1819, it was the general custom to transport merchandise at low water around the falls on drays.- That about that time sonv> carriers began to use flat boats to. transport over the falls, and from that time to this, the use of flats for that purpose bad been increasing, though both methods were still used. It was left uncertain which method now prevailed most. The transportation over the falls in flats was preferred by many, because it kept the goods cleaner, exposed them less to the sun, left them in a better state for the market in the lower country, and was less expensive. That mode of passing the falls was more hazardous than by drays, but was counterbalanced by the advantage arising from the convenience of the transportation and condition of the goods. The insurance officers charged one-eighth per cent, more premium for insurance if the goods were intended to pass the falls in flats; but it frequently happened that carriers obtained leave to take over the falls in flats, either verbally, or by memorandum on the bill of lading; though they frequently used flats without having such leave. It was more convenient to the carrier to pass in flats. The memorandum on the bill of lading to ship in other boats, or flats, it was customary to consider a part of the bill of lading.
    
      When the Tecumseh arrived at Louisville, the state of the river was such as to induce a doubt about taking her over the falls and back again, and the pilot declined taking her over, although some witnesses testified that then, and until the Thursday after, there was water enough on the falls for the boat to. pass. The cargo was transhipped into flats, but the wind blowing fresh, the pilot refused to take them over. They were then moored for the night, and properly guarded. Early the next morning, the Lady Franklin run foul of the flats and sunk them.
    The net loss of the plaintiff’s goods was $999. In the progress of the testimony, the plaintiffs called a witness to prove that it was the understanding between the parties, that the freight should be carried over the falls in the Tecumseh.
    
      *¡Storer, for the defendant,
    objected to this as inadmissible.
    
      N. Wright and C. Hammond, contra.
    
      N. Wright and C. Hammond, for the plaintiff.
    
      Storer and Fox, for the defendants,
    cited 1 Bur. 348; 2 Doug. 512; Phil, on Ev. 415.
   THE COURT

ruled out the evidence. It was not competent to introduce parol evidence to vary the terms of a written contract. The testimony is not offered to establish a general usage, but to vary this particular agreement.

WRIGHT, J. charged the jury. The bill of lading is the contract between the parties, and is to be construed according to the terms expressed in it; though if there is a common usage of the trade affecting the question, that usage will be regarded as within the contemplation of the contracting parties, and a compliance with the contract as modified by such usage will satisfy the stipulations of the contract. But a usage to affect the contract, must be common, and general; not fluctuating, or dependent upon price, or other such circumstance. If a carrier would reserve to himself the right to vary from a contract of lading drawn in the usual form, or avail himself of the privilege of change, he must stipulate for the leave, and vary the bill of lading so as to meet the stipulation. This bill of lading must be taken altogether, including the memorandum as to the steamboat Tecumseh. So taken, its legal effect is an undertaking by the defendant, to carry the plaintiff’s freight from Cincinnati, in the Tecumseh, to the Amazon below the falls; but as the usage of the river tráde, when the water is too low for the small steamboat above the falls to pass over in safety, is to transport from Louisville to Shippingport by other means, that usage the law holds to have been within the contemplation of the parties, and to form a part of their contract. A carrier is liable for all injury to the freight, which does not arise from the act of God (inevitable accident), or the enemies of the state. He undertakes for the safe-keeping of the goods entrusted to him, the proper conduct of the vessel, and the keeping the proper lights and watch for her preservation. He is bound not to expose the goods to any extraordinary hazard, or risk, and if he deviate from the usual and common course of the trade, and the goods are lost or injured during such deviation, and exposure, he is not excused, even if the loss or injury result from inevitable accident, or the public enemies. Such excuse is only available to himwhilein the pursuit of his voyage in the usual way.

196] *You will then inquire what was the state of the water when the Tecumseh arrived at Louisville, and if you are satisfied there was sufficient water for her to have passed safely over the falls, it was the duty of the defendants, under their contract, to carry the goods over in that way; and if with sufficient water for the Tecumseh to pass the falls, the defendants chose to tranship the goods in fiats for their own convenience, and while they were so exposed, they were lost by inevitable accident, the carriers are accountable, because they have unnecessarily exposed them to extraordinary risk. If you find this to be the case, the plaintiff’s right to recover is established, and you will not be under the necessity of looking any further.

If you shall be satisfied that the stage of water in the river was such when the Tecumseh arrived at Louisville, as to render it unsafe for her to pass over the falls, then her cargo was subject to be transported over, or around the falls, in the mode adopted by the common usage of the trade in such case. If it was the common custom to light the boat over by transhipping a part of the cargo, or to keep her above the falls, and send the whole cargo over in flats, or around in drays, that common custom must be followed by the carrier. If two methods are in common use to overcome suoh difficulty, the one more hazardous than the other, the carrier adopts the most hazardous method at 'his own risk and responsibility, and if loss intervene, it is his loss. This results from the nature of the employment. The carrier is the agent of the shipper and owner, and is the servant also of the latter; and he is not permitted, for his own ■convenience, to subject goods entrusted to Mm to any increased risk. In this case it is not disputed that there are two ways of transporting goods past the falls in low water, by drays and by flat boats. It is urged that the whole amount of the testimony, the> j>rice of insurance, and the nature of the transportation itself, conclusively show that the use of flat boats is the most hazardous, and was, therefore, adopted at the risk of the carrier. It is for you to judge, from all the circumstances in proof, and if the mode by drays is the least hazardous, the circumstance that the increased hazard'of flat boats is counterbalanced by the more cleanly appearance of goods so transported, or their less expoosure to the heat of the sun,; and the consequent preference of that mode of conveyance, leaves' the question of hazard, and the point of common custom, wholly untouched. But if, by the common custom, flats are used to trans-, port cargoes over the falls, then, and then only, can it be necessary Vfor you to inquire, whether the flats, while moored above the [197 ■falls, were properly disposed of, or safely guarded.

If they had a right to load the cargo into flats to overcome the falls, according to the custom of the river, then you will inquire whether the defendants used due diligence for the preservation of the cargo, while exposed in flats; and whether it was destroyed by inevitable accident. If the loss resulted from the negligence or wanton act of the navigators of the Lady Franklin, it did not result from an inevitable accident, which alone will excuse the defendants from liability. In such case, we think the defendants are responsible to the plaintiffs, and have their remedy over against the Lady Franklin.

Verdict for the pflaintiffs. The case was afterwards settled, and judgment taken only for the costs.

[This ease had been in the Supreme Court; Lawrence v. Mc Gregor, 5 O. 309.]  