
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Thomas Eveleigh v. Asberry Sylvester.
    Carriers in boats on rivers, are not liable to the same extent as common carriers are, by the English law. They are not liable at all events, (where the boat is worthy of the river,) except for neglect, or want of sufficient skills [See 2 Nott and M’Cord, 88, and Harper’s Rep. 262.]
    Trespass on the case, tried in Sumter district, before Brevard, J., against the defendant, for damages, for a loss sustained by the plaintiff, from the defendant’s boat being snagged in the river San-tee, having the plaintiff’s cotton on board, which was damaged by water. It was proved at the trial, that the plaintiff delivered to the defendant sixteen bales of cotton, to be carried on board the defendant’s boat to Charleston, and to be delivered there, unavoidable accidents excepted, and that the cotton was much injured by the accident that happened to the boat, and was not carried by the defend, ant to Charleston. It appeared that the boat, on board of which the injury happened, was not unworthy of the river, and that she was provided, and manned, as sufficiently as the major part of boats on the same river, of the same kind, are in general provided and manned.
    The counsel, for the plaintiff, relied on the doctrine relative to common carriers, — that they are answerable in all events, except the act of God, and the public enemies of the country; and insisted, that the defendant, in this case, ought to be regarded as a common carrier, for that all persons carrying goods for hire come under the denomination of common carriers.
    
      E contra. It was contended, that the words unavoidable circumstances excepted, inserted in the receipt for the cotton, were intend, ee to signify, that in case there should be no neglect, or want of proper care, justly imputable to the defendant, that he should not be answerable; and, also, that under the circumstances which ap. peared in evidence, the defendant was not chargeable upon general principles as a common carrier; because it appeared that the boat had been snagged in deep water, where no snag had ever before been known to be, and therefore it was presumable it had been recently deposited there, and was so hidden as not to be discovered till the boat ran foul of it; and that it ought to be considered as an accident occasioned by the act of God.
    The court, in charging the jury, recognized the doctrine of the English law, in relation to common carriers, and intimated, that it applied to the case under consideration ; but at the same time observed, that it seemed to be a doctrine of extreme rigor, and, perhaps, not justifiable on the ground of policy, in the extent to which it was carried. As the law of the land, however, it was necessary to respect it; and that it would govern the case, unless the words of the receipt, which had been commented on, could be fairly con. strued to form a stipulation different from those stipulations which are implied in every contract to carry for hire, and exempted the carrier from his liability to answer in case of events, other than those arising from the act of God, as understood in the books. It was left to the jury to consider what these words were intended to signify ; and whether there was any want of due care o.n the part of the defendant; and if they should be of opinion, that the defendant had either employed an insufficient boat, or had found or manned it insufficiently; or that the accident-had happened from want of skill in the management of the vessel, or w-ant of such knowledge of the river as a prudent man ought to rely on in the management of his own concerns, the plaintiff would, at all events, be entitled to a verdict. From the report of the case made to this court, it did not appear that the defendant had been wanting, or neglectful, as to any of the means commonly used, and generally conceived to be adequate to the safe carriage of produce in boats on that river, from the neighborhood of the parties, to Charleston, nor that he did not use due diligence and care to preserve the cotton after the accident, as far forth as he could. And it appeared that he had a quantity of his own corn on board, which' was spoiled.
    Verdict for plaintiff.
    Richardson was heard against the motion, made in this court, in behalf of the defendant, by Simons and Blanking.
    
   Waties, J.,

delivered the unanimous resolution of the court, thatv. anew trial should be granted. That it had been determined by the S courts of this State, some years ago, that-the doctrine of the Eng. 1 lish law in regard to common carriers, does not apply in its full / extent to carriers in boats on our rivers. That this class of carriers are not answerable for accidents against which ordinary foresight, care, diligence, and skill, such as are usually employed and exerted by men of ordinary care and prudence in their own affairs, are insufficient,to protect them; or which cannot always be avoided by these means ; and that they are only answerable, either when the boats, which they employ, are not worthy of the river, or are insufficient for the purpose for‘which they are employed; or are no* e<lu'PPe(^ as Aey should be; or have been unskilfully managed. That if this doctrine had been laid down to the jury, at the trial, it *s probable they would have given a different verdict.

Note. See 3 Esp. R. 131. The act of God is a natural necessity, such as storms, &c. There is no distinction between a land and water carrier; nor between a sea and river voyage. See 2 Binn. 72.

New trial granted,  