Colt v. M'Mechen , 6 Johns. 160 ( 1810 )

Spencer, J.

The plaintiifs have moved for a new trial on two grounds ; 1st. For a misdirection to the jury, in stating that the failure of the wind was the act of God; and, 2d. For that the verdict was against evidence, on the point submitted to the jury, in relation to the negligence or carelessness of the master of the sloop, after she struck.

There can be no contrariety of opinion, on the law ■which renders common carriers liable. However rigid the rule may be, they are responsible for every injury done to goods entrusted to them to carry, unless it proceeds from the act of God, or the enemies of the land. What shall be considered the act of God, as contra-distinguished from an act resulting from human means, affords the only difficulty in the case.

The cause was summed up to the jury on this point, that if they were satisfied from the whole evidence, that the vessel ran ashore in consequence of the sudden failure .of the wind, the law would consider it as the act of God, and exculpate the defendant.” By finding a verdict for the defendant, the jury have believed the testimony of Captain M'-Kean, and the other witnesses produced by the defendant, in their account of the manner and circumstances under which the vessel grounded. The substance of that testimony is, that the vessel being on her passage from New-Tork to Kinderhook, late in the month of November, 1800, proceeded on the passage to West {lamp, where the vessel carne to, from thence they weighed anchor and beat against the wind; from the -lateness of the season, and for fear of ice, the captain was anxious to make Livingston's dock, which was considered a place of safety, and at which they had nearly arrived, when the accident happened j that the wind was -light and variable, but sufficient to enable them to make considerable progress, and would have been sufficient, if -it had continued, to have enabled them to have reached the dock, in a few more tacks; they were standing for the west shore, and had approached it, as near as was usual and proper, when they put down the helm to bring her about, the jib sail began to fill, the vessel partly changed her tack, when the wind suddenly ceased blowing, and the headway, under which the vessel was, shot her .on the bank. Captain MLKean states, that he was well acquainted with the shore, and had before approached as near as he did then, when beating to windward; and that, when standing for the west shore, he had wind enough to enable him to manage the vessel with safety; that as the water fell, the stern of the sloop settled, and did ■not rise until flood tide, in consequence of which, the water gushed in at the windows, and thereby the plaintiff’s goods were wet and damaged. He states, distinctly, that the sudden and entire failure of the wind was .the sole cause of the vessel’s grounding.

The case of Amies v. Stevens (1 Str. 128.) shows that a sudden gust of wind, by which the hoy of the carrier, shooting a bridge, was driven against a pier and overs.et, by the violence of the shock,has been adjudged to be the act of God, or vis divina. The sudden gust, in the case of the hoyman, and the sudden and entire failure .of the wind sufficient to enable the vessel to beat, are equally to be considered the acts of God, He caused the gust to blow in. the one case; and in the other, the wind was stayed by him»

It has been said, that the captain ivas guilty of negligence in attempting to beat, and in approaching the: shore as near as he did when the disaster happened, the w-n¿ being, as he states, light and variable. It may be observed, that the master had his choice of alternafives, either to improve the wind he then had, in order to a place of safety, or to be exposed, in the middle of the river, to the effects of ice. The season of the year, and the interests of all concerned, justified the captain in attempting to reach Livingston?s dock. It was not, as I recollect, pretended, on the trial, that his- conduct was improper and unusual, in approaching the shore as near as he did on the tack in which the vessel grounded; at all events, the case does not show that the judge expressed any opinion on that point; and the plaintiff must have had .the full benefit of that objection to the captain’s conduct. I should undoubtedly have been of opinion, as the captain was situated, taking into view the lateness of the season, the narrowness of the channel, and the fact, that he was not nearer the shore than is usual and customary in beating, that he was not guilty of negligence or improper conduct in that respect.

No rule of law having been violated, in the charge to the jury, if there even were grounds for spying that there is some degree of negligence imputable to the master, that point has been under the consideration- of the jury, or it was not insisted on before them, and in either case, when the plaintiffs attempt to fix the defendant with a loss from a very rigid rule of law, I should not disturb the verdict of a jury; to giVe them another opportunity to urge that objection. In the case of the Proprietors of the Trent Navigation v. Wood,^* the vessel was sunk, by driving against an anchor, in the river Humber, and the goods were considerably damaged by the accident; it was not pretended by the counsel, that this was-the act of God, and Lord Mansfield considered it the injury of a private man, within the reason of the instance of robbery. Abbott, in his notice of this case, (Abbott, 256.) observes, that both parties were held to have been guilty of negligence, the one in leaving his anchor without a buoy, the Other in not avoiding it; as when he saw the vessel in the river, he must have known that there was an anchor near at hand; or if it was to be taken, that negligence was imputable only to the master, who had left his anchor without a buoy, that he was answerable over to the master and owners of the vessel, whose cargo had been injured. Again, he observes, (p. 227.) that if a ship is forced on a rock or shallow, by adverse winds, or tempests, or if the shallow was occasioned by a recent collection of sand, where ships could before sail with safety, the loss is to be attributed to the act of God, or the perils of the sea. Upon a position so plain, in my apprehension, as that the sudden cessation of a wind which was competent, at the very moment when the vessel began to come about, for the avoidance of the shoal, was the act of God, and did not arise from the fault or negligence of man, I am at a loss for further illustration.

The second point, on which a new trial is sought, was fairly and fully before the jury; and without entering upon it further, I cannot but express my perfect concurrence in opinion with them; the master did every thing which could reasonably be expected of him, to prevent the vessel from sinking. Accordingly, my opinion is against a new trial.

Thompson, J. Van Ness, J. and Yates, J. concurred.

Kent, Ch. J.

I concur in the general doctrine, that fihe sudden failure of the wind was an act of God. It was an event which could not happen by the intervention of man, nor be prevented by human prudence. But I think here was a degree of negligence, imputable to the master, in sailing so near the shore under a “light, variable wind,” that a failure in coming about, would cast him aground. He ought to have exercised moiccaution, and guarded against such a probable event, in-that case, as- the want of. wind to bring his vessel about.' fL common carrier is only to'be excused from a loss hapening in spite of all human effort and sagacity. (Trent Navigation v. Wood, 3 Esp. N. P. 127.) A castes fortuities was defined in the civil law to be, qitodfato contingitj cuitfis diligentissimo possit contingere. B'ut as this point does not appear to have been particularly urged at the trial, and the verdict negatives the charge of negligence and as the responsibility of common carriers may be deemed sufficiently strict, I am content not to interfere with the verdict, though I think that the evidence would have warranted the conclusion of negligence to a certain-extent.-

Judgment for the defendant*

* 3 Esp. Cases, 127.