
    *Butt Harrington v. Aramanus Lyles.
    A boatman is a common earner, and is liable for all losses, except tliose occasioned by tbe act of God and the enemies of the country.
    Tried before Mr. Justice Johnson, at Newberry, October, 1819.
    The plaintiff had shipped sixty-five bales of cotton on board the defendant’s boat, to be carried from a landing on Broad river, in Newberry district, to Charleston-, for him. .The boat upset in the Hantee canal, and threw the cotton into the water. She -was speedily reloaded, and proceeded to her place of destination ; and on her arrival,' the consignee found some of the cotton wet, and much injured, and procured a survey to be made, which fixed the loss at $225; and the actual loss on the sale by the consignee, amounted to 240 or 250 dollars; and this was an action to recover the amount of those damages.
    The evidence on the part of the defendant was, that he was unusually careful, and a skilful patroon ; that his boat was one of the best of her class, competent to carry the cargo then on board, and manned by a competent crew; that after she entered the Oongaree river she was lashed to another boat, of the same size, to guard against any accidents from upsetting, but that it became necessary to separate them to pass the canal; and that the day on which they entered the canal, an incessantly heavy rain had fallen, which wet the bales on top. One of the witnesses stated that it was apparent that the boat was, from that cause, top heavy, after she was separated from the other; that they remained that night in the canal, and that the defendant, to guard her against upsetting, lashed her to the bank, and set polés on the opposite side, (a precaution rarely resorted to,) and remained on board himself until she went over, about midnight, without any obviously recent cause. It also appeared that the cotton injured was at the bottom of the boat, and resulted from the dripping of that on top ; and the '^probability was that if it had been laid on the bank and suffered to drain, no injury would have been sustained. L By
    The jury found a verdict for the plaintiff for §225 ; and a motion was now made for a new trial.
    
      Gregg, for the motion. O’Neal, contra.
   The opinion of the Court was delivered by

Johnson, J.

The whole of the grounds relied on, in the argument of this cause, are embraced in the question : .Whether the defendant, like a common carrier, is liable for all losses, except those occasioned by the act of God, or the enemies of the country ?

It was with great difficulty, that I could bring my mind to consent to the established doctrine on the subject of the liability of common carriers, when the proof was clear, that every caution which prudence could suggest, was used to prevent a loss; for the reasons upon which that rule was founded, do not, I think, exist with the same force in this country, as they did in England, from whence it is derived. Policy may, however, render it necessary here. Carrying for hire is the usual general description of those who fall within the rule; and there is no class to which it will apply with more force or propriety than to those who navigate our inland waters, through which channel almost all the produce of the country is likely to find its way to a market, and therefore deserves to be well protected. But the question is not now to be adjudged. The doctrine was recognized by this court in the case of Eveleigh v. Sylvester, (2 Brevard’s Reports, 118,) in relation to boat owners navigating our inland water; and in the late cases of Rutherford v. M’Gowen, 1 Nott & M’Cord, 11, and Cook v. Gourdin, ante, 19, it is extended even to ferry owners.

Independent of the doctrine, I think the verdict was right, even on the ground of negligence. It was obvious that the boat was top heavy as soon as she was separated from the other, and the usual cautions which the defendant used'to prevent accident, proved that he was conscious of danger. The loss happened by his ^trusting too much i-*qq to his care and skill; and reloading the boat when the cotton was L dripping with water from the canal, and from which the injury actually arose, was not the exercise of that prudence which ought to excuse the defendant.

The motion is refused.

Colcock, Rott, Gantt and RichaRDson, JJ., concurred.

Ante, 19, and notes ; Harp. 262. 
      
       5 Rich. 25.
     