
    M’Clures against Hammond.
    
      Feb. 27th, 1790.
    Carrying goods for tiiro* makes aman a common carrier nuclei? the customj who is answerable for any loss arising from the want of carcv skill or diligence.
    
    SPECIAL action on the case against the defendant, as a common carrier. The defendant had been employed by the plaintiffs to bring round to Charleston, from Augusta, in Georgia, a quantity of tobacco, which had been shipped on board of his boat employed in that trade. On the passage from Savannah, the boatmen anchored near the outside of an island on the coast, called Pinckney’s island, where, owing to the want of a good anchor, and a tarpaulin, she drifted on shore and filled with water. In consequence of it, more than one half of the cargo was damaged or lost.
    On the trial it was proved for the plaintiff, that the tobacco was put on board the boat in good order ; and that at Savannah, the defendant or his agents, were cautioned against going along the coast, without a heavier- and better anchor, and a good tarpaulin to keep off the spray of the sea. That when the boat came to anchor off Pinckney’s island, and the tide turned against her, it was found that the anchor was much too light to hold so heavy a boat. Shortly after she drifted on shore, and having no tarpaulin to cover her hatchway, she soon filled with water. It further appeared in evidence, that if the boat had been provided with a proper anchor, she would have rode in safety till the tide turned ; or, if she had had a proper pilot on board, the boat might have come within the islands, along the inner passage ; where she would have been perfectly safe, with the anchor she had.
    The defendant attempted to prove, that the boat was driven on shore by tempestuous weather, hut on the cross examination of the witnesses, it appeared that the wind was no more than a fresh sea-breeze, and such as was common in .these latitudes at that season of the year.
    
      The defendant's counsel, in this case, relied principally upon the circumstance of the boisterous weather, which they contended would excuse a common carrier. 1 Str. 128. That the boat was as well found as the boats in the same trade usually were. That she was manned with skib ful boatmen, and every thing was done by the defendant which was incumbent on him to do for the preservation and safe carriage of the tobacco.
    
      For pie plaintiffs, in reply, it was urged, that whoever carries goods for hire or for freight, is considered in law as a common carrier. (1 Bac. 243. Bull. N. P. 70.) As masters and owners of ships, lightermen, hoymen, boatmen, stage-coachmen, &c. Therefore, on account of the hire and freight they are chargeable for all faults arising from the want of skill, care or diligence, to the party injured. 3 Black. 103, 4. Nay, so strict is the law against common carriers, that if a ship, boat, or vessel be robbed at night, the master or owner shall be liable. 1 Bac. 245. It is a rule, says Blackstone, that every common carrier, engages by law, to be answerable for goods he carries, at all events. 3 Black. Com. 163, 4. Nothing shall excuse them, but 1st. the act of God, or 2d. enemies. Bull. N. P. 70, 1, 2. Lord Ray hi. 909 — 918. As to the latter, none were pretended here, and as to the former, it appeared from the evidence, that the breeze was not more than every man of common foresight could have guarded against; or, by having a proper pilot on board, the boat might have been conducted in safety without being exposed to the sea. Then there was certainly some want of skill in not conducting the boat through the proper channel, or a want of due care and diligence, in not providing the boat with a proper anchor and tarpaulin, either of which made a defendant liable.
   The Court,

in charging the j.ury, said, that whoever carries goods for hire, makes himself a common carrier under the custom, and the law was very clear, that nothing-should excuse a common carrier, but the act of God or enemies. The latter were not pretended. It depended upon tire jury to determine from the evidence, whether this was an unavoidable accident, owing to tempestuous weather, or which could not by due skill, care or diligence, be guarded against ?

Pringle and Bay, for plaintiffs.

Rutledge and Taylor, for defendant.

The jury found for the plaintiff, the supposed value of the tobacco lost, 100/.

A new trial was afterwards moved for, before Gsbike, Waties and Bjiayton, Justices ; when after solemn argument, it was refused, on the ground that here were matters of fact very proper for the consideration of the jury. That the verdict was by no means against evidence, as the weight of it was in favour of the plaintiffs ; nor against law, for that was equally clear with the plaintiffs, unless the defendant had brought himself under one or other of the reasons, which will excuse a common carrier, of which the jurors were judges from the evidence.

Therefore rule discharged.  