West v. The Steamboat Berlin

Woodward, J.

The first objection made in the case, which we will notice, is that made in the admission of the witness Noel. He was master of the boat, and was part owner at the time of giving the bills of lading. He was offered as a witness on the part of the defendant, and his competency was objected to, on account of interest. Being examined on his voire dire, he testified as follows: “ I was captain and part owner, at the time when, &c. I have no interest in the present suit; I sold out before the present suit was instituted, and before it was thought of; nothing was said about any claim on the part of West, when I sold. It was not known then, that he intended any proceedings.” It is not very manifest why this question is made in this court, for it is very slightly treated, and does not seem to be raised with much confidence. So far as the examination of the witness only can go, it clearly exonerates him from liability, unless that liability is involved in the very sale itself, under the idea of an implied warranty against incumbrance of liability to past *538 claims. No argument “or authority is offered on this question. It will not be pretended, that we should adjudge this question in such a destitution of facts relative to the sale. There is no evidence concerning it, except the above testimony of J. E. Noel, the master, who says: “Nothing was said about any claim on the part of West, when I sold.” We cannot guess at the terms of the sale. If the plaintiff wished to make this question, he should have had 'evidence of the contract of sale. And further, the papers do not show who appeared as owners of the boat, (which they should), but the testimony is all before the court, under a motion for a new trial; and in looking at this, we find that J. E. Noel, the master, is brother of J. B. and Anthony Noel, who signed the bond for the release of the boat. Now, if we should assume that these are the owners, and who had been joint owners with J. B. Noel, and that he sold to them, it might raise the question whether selling to his former co-owners, he would be liable. It is apparent that we cannot settle the question in the absence of the proper facts, and that the plaintiff must rest upon his examination upon the voire dire, as unsatisfactory as it is. In this, therefore, there was no error.

The first error assigned, is the admission’of the above witness. The second and third are based upon the giving the instructions numbered 11 and 12, which are here given in substance. The 11th is, that, “if you believe that the plaintiff, to induce the captain to undertake the trip, agreed with him, that if at any point in the trip, the further navigation of the river should be found impracticable, by reason of the cold or stormy weather, or the captain should judge it unsafe and hazardous to proceed further, then defendant might store the goods; and that Noel, relying upon this contract, undertook the trip and signed the bills, and proceeded until it became impracticable to proceed farther, then your verdict should be for the defendant.” The twelfth is, “ although it is 'a general principle, that a written contract cannot be varied by parol evidence of instructions given before or at the time the contract is executed, because all the *539 terms of the agreement are supposed to he expressed and fixed by the instrument, yet you may take into consideration the instruction of the plaintiff to the captain, to store the goods at ‘ Reed’s Landing,’ in the event he should be unable to go farther; for this is not a variation or contradiction of the written contract. I say that so far as it would go to show that the defendant was entitled to store the goods, if it was impossible for the boat to proceed farther, because of the dangers of the river, and the closing of navigation, it would not be a variation, but on the contrary, as rather supporting it; for the bill of lading excepts the unavoidable dangers of the river, and reserves the ‘usual privileges,’ which is admitted to be the privilege of storing, when by reason of unavoidable danger from ice, the farther prosecution of the voyage is impracticable.”

The only testimony upon which the twelfth instruction is based, is that by the master, as follows: “We (plaintiff and himself) both thought it might very likely happen that the Berlin would not be able to reach St. Paul. West said, ‘ If you can’t get through, you can get part through.' When the boat started, West ran to the river bank, and said, ‘ If you can’t get through, try and get to Charley Reed’s, and deliver the goods there. He is the best man.’ ” If the charge of the court contained no more than is involved in the contract itself, we should not be inclined to reverse the judgment, because the court placed it upon the additional testimony; although it would be inadmissible, if it were independent matter. Now what is the law of the contract, -in regard to the matter of these instructions? All contracts are to'be viewed and construed with a reference to the nature and subject matter, and. to the contingencies to which they are naturally subject. So with that before us. Such as this, are subject to the interruption of navigation. This enters into the contract, or it may properly enough be called the act of the Higher Power. Thus, a boat, taking freightin November, to carry from Dubuque to St. Paul, is bound to transport it to that place; but it is not necessarily bound to carry it there, during the same season. If the navigation becomes *540 impracticable in consequence of the cold, the storms, or the ice of the season, the boat is excused from then fulfilling the contract, either on 'the ground of the act of the Higher Power, or because of the nature of the contract, and the contingencies which may well come within the contemplation and foresight of the parties, or his view of the clause excepting the unavoidable dangers of the river. This latter, the clause in the contract, probably has primary reference to the.safety of the goods, but may it not extend also to the performance of the contract ?

But in the present case, it is immaterial which of these views we adopt. Under one or the other, the boat had a right to stop and turn about, if the voyage became impracticable. What, then, was it the duty of the master to do with the goods ? should he store them, or should he bring them back to Dübuque ? This question is not made in the case. The action is not brought upon this point. It is not because he should have delivered them back at Dubuque, rather than store them at “ Eeed’s,” but it is because they were not delivered at St.'Paul. Too much is made in the charge, of this matter of storing at Eeed’s. It is made a point in this twelfth instruction. If the voyage was impracticable, then the master had a right either to store or to bring back; and there is no complaint made, that he did not return the goods to Dubuque. If what was said were to be viewed as varying the contract at all, or as changing the liability of the boat, we should consider it inadmissible. But we view it in the light of only directing with whom to store, if he was obliged to'stop. We regard the instruction. as containing nothing in substance but what pertains to the contract itself, that is, to the bill of lading. But the instruction lays too much stress upon the testimony, as if it were adding new matter. Yet we do not think this sufficient cause for a reversal.

The action is instituted, and damages are sought for not ■carrying the goods to St. Paul, and the only substantial question is, whether any sufficient reason is shown for not performing the contract ? The instruction numbered fourteen, bears upon this question. It is this, “ If at the time the goods *541 were shipped, the plaintiff knew the character and capacity of the Berlin, and that it was necessary for her, in order to oarry this freight, to tow it in flat boats, and that she could run only in daylight, it would be your duty to consider that the contract was entered into by both parties in reference to these things; and the plaintiff can only demand that the boat should make such speed as such a boat could reasonably make, and encounter only such obstacles and risks as she could encounter with safety. The question is not, what could a better and larger boat have done, but what could this boat have done, with due diligence ? and this will refer not only to the time when the goods were stored, but to any subsequent time during the season. In the opinion of this court, the question is rather, what did the master undertake ? The above direction, as a rule, would not operate safely. It is for the master to know whether he has a competent boat, and one competently equipped. Over these things, the shipper has no control. A common carrier by land, may have a sorrj'- team, or a poor railway, or an insufficient engine, and the shipper may know it; but he is not chargeable with that knowledge, so as to lessen the duty of the carrier. The master of the boat made his contract, as any other boat does; he charges according to the season and the state of navigation. When he contracts to transport goods from St. Louis to Dubuque, the shipper knows that he has two rapids to pass over; but the master charges a price accordingly, and would not be freed from responsibility on account of the shipper’s knowledge, but inserts a clause in his contract to cover the danger. In this case, he says, West offered a large price, and he appears to have contracted for a large price. We think this instruction should not have been given.

The plaintiff requested the court to charge the jury: First. That it was the duty of the defendant to have a boat staunch, strong, and fit for the business of transporting freight from Dubuque to St. Paul, at the season of the year when the contract was entered into. Second. That it was the duty of defendant to have officers, engineers, and crew, sufficient in number and competency, to run tbe boat constantly day and *542 night. These instructions' should have been given. Being given, they would not.mean that he must have such a boat and equipment, as could run in spite, of all obstacles, but as. much; and at such times, as boats usually do, and subject to the same contingencies of navigation.

In the foregoing remarks, it.is not intended to imply, that, all boats are to be tested by one inflexible criterion as to capacity. They are to be tried by their contract, and- it is intended that when a boat makes a contract in the usual terms of other boats,.it cannot excuse itself from performance, by showing that it is a poor boat or badly equipped. The question in this case is, whether this boat was justified.in-.abandoning the trip, and in not sending the goods on ? And under this, whether she was fairly capable; whether she was properly equipped in officers, men, and materials; whether she waited at Reed’s-Landing as long as she should, to make the attempt; whether she could not get the goods through without the flats, or could not have forwarded them, &c. ?

The plaintiff requested the court to give the following instructions : “ The good order in which the defendant admits, by the bill of lading, the goods were received, refers-only-to the external condition, and not to the state of the pork itself in reference to its soundness.” This was refused. A similar question might be answered differently, when applied to different kind of goods, or when applied to goods requiring different modes of packing, or admitting of different conditions in transportation. But the master cannot be held for the quality or soundness, (when shipped), of goods, packed like this pork in the barrel. He is not an inspector. This instruction should have been given. There was no exception taken to the fifteenth instruction. The judgment of the court is reversed, and it is directed to proceed in accordance with this opinion.