Hand v. Baynes

• Decision Date: 16 February 1839
• Citation: 33 Am.Dec. 54,4 Whart. 204
• Parties: HAND v. BAYNES.
• Court: Pennsylvania Supreme Court

4 Whart. 204

33 Am.Dec. 54

HAND v. BAYNES.

Supreme Court of Pennsylvania.

February 16, 1839

IN ERROR.

The defendant, who was the owner of a line of vessels engaged in transporting goods from Philadelphia to Baltimore, received certain goods belonging to the plaintiff, on board of one of his vessels, and gave a receipt in the following words " Rec'd on board Hand's Line for Baltimore, via Chesapeake and Delaware Canal, from J. B." (the plaintiff,) " 100 slaughter hides on deck, which I promise to deliver to J. D. at Baltimore, the dangers of the navigation, fire, leakage and breakage excepted, he or they paying freight eight dollars, and porterage $1 50." The vessel left Philadelphia, and on arriving at the mouth of the canal, the captain was informed that the locks were out of order, and that he could not be allowed to pass through the canal. He then proceeded down the bay, and out to sea, with the intention of going round to Baltimore, but in a gale of wind the vessel struck on a shoal, and with the cargo was totally lost. Evidence was given on the trial that the hides had been purchased by the plaintiff, and there was no evidence of any property in J. D. the consignee Held, (1st) That this was a contract to carry the goods to Baltimore through the canal. (2nd) That the circumstances did not excuse the deviation from that route. (3rd) That the clause in the receipt excepting " the dangers of the navigation," did not apply to the case of the canal being impassable by inevitable accident or otherwise. (4th) That the plaintiff was entitled to maintain an action against the carrier for the loss of the goods. (5th) That the value of the goods was the proper measure of damages.

ON a writ of error to the District Court of the City and County of Philadelphia, it appeared that James Baynes brought an action on the case in that Court to June term, 1836, against Joseph Hand, to recover from the defendant the value of certain hides shipped on board a vessel called the Neptune, belonging to the defendant, and intended to be carried to Baltimore by the way of the Chesapeake and Delaware Canal, but which were lost at sea.

The cause was tried on the 3rd of April, 1837, before JONES, J when the plaintiff's counsel gave in evidence the following receipt or bill of lading, signed by the defendant's clerk or agent, viz.

" Per Sloop Neptune."

" Philadelphia, January 14, 1836.

Received on board Hand's Line for Baltimore, via Chesapeake and Delaware Canal, from J. Baynes, one hundred slaughter hides on deck, which I promise to deliver to Joseph Davenport, at Baltimore, the dangers of the navigation, fire, leakage and breakage excepted, he or they paying freight eight dollars and porterage one dollar and fifty cents.

H. HAND, Per

H. H. ELDRIDGE."

The plaintiff then produced a witness who proved that he sold to the plaintiff, on the 12th of December, 1835, one hundred slaughter hides, the net value of which was $349 57, which was the sum the plaintiff paid him for them.

The following advertisement, published by the defendant in the American Daily Advertiser, of March 25th, 1836, was then given in evidence on the part of the plaintiff.

" Baltimore Packet Notice. Hand's Line above Market street. As the Chesapeake and Delaware Canal is at present impassable, and will probably remain so for several weeks, all shippers per sloops Union, Capt. Biddle, Neptune, Capt. Scott, Anna Maria, Capt. Layman, and William Penn, Capt. Pettit, are requested to call immediately at the counting-house of the subscriber, and have their bills of lading altered, so as to permit their goods to be transferred to the schooner Col. Crockett, which is now loading for Baltimore by sea.

JOSEPH HAND,

March 25--1t." 7, North Wharves."

The defendant's counsel then gave in evidence a protest made by the master and mate of the Sloop Neptune, as follows.

" Virginia, Northampton County, Sct.

By this public instrument of protest be it known, & c. That on the 8th day of April, A.D. 1836, before me, John S. Parker, a justice of the peace, in and for the said county and state, (there being no notary public in the district of the said county) personally came and appeared Benjamin Scott, master of the sloop called the Neptune, of Philadelphia, of the burthen of forty-six tons or thereabouts, belonging to the port of Philadelphia, and Thomas Eccles, mate of the said sloop, who being severally sworn, declared that the said sloop being laden with brandy, glass, chocolate, dry goods, ginger, tallow, hides, iron and other hardware, brooms, & c. on the 26th day of March last, they, the said appearants, set sail on board the said sloop from Philadelphia, bound directly to the port of Baltimore: that on Sunday the 27th day of March last they arrived at the mouth of the Chesapeake and Delaware Canal, on the Delaware side, and applied for permission to go through the said canal, but were informed that the locks were in such condition as not to admit of the passage of the said sloop through the said canal, and therefore the said sloop was compelled to keep on down the Delaware Bay till they got down to Morris River, where the said sloop lay two days with the wind, when they anchored, blowing from about east--that after that they went down the bay to the breakwater, and the wind blowing from the south-east, they remained there till Sunday the 3d day of April, instant; that on the 3d instant the wind came round about north-west, and they weighed anchor and proceeded out of the bay, and after it became calm or nearly so, and continued so until about 12 o'clock at night, when a few hours the wind hauled around to about east, and about daylight or sunrise on Monday the 4th inst. the wind hauled to about northeast, and about 12 o'clock M. began to blow very fresh and stormy, and afterwards hauled to N. N. E.--that it was very thick and stormy all day, and saw no land until about 3 o'clock P. M. on the 4th inst; shortly after seeing which, the said sloop struck on Matchapungo shoals, where a very heavy sea was setting in, and the wind blowing nearly a gale. That in the course of two hours after the said sloop struck she went entirely to pieces, and the said appearants and the hands belonging to her took to the boat and made their way to a small sand shoal, where they remained till the tide forced them away, when they went ashore on Prout's Island, where they remained all night; and on the 5th inst. they were towed over to Hog Island by a boat which came from there, where they remained till yesterday the 7th inst., when they came to the mainland. That none, or very little, if any, of the property which was on board the said sloop was saved before the said appearants left the said island. And the said appearants did further severally declare on oath, that the said sloop, at the time of her departure from Philadelphia aforesaid, upon the said intended voyage, was tight, staunch and strong, and had her hatches well and sufficiently caulked and covered, and was well and sufficiently manned, provided and furnished with all things needful and necessary for the said voyage; and that during the said voyage the said appearants and sloop's company used their utmost endeavours to preserve the said sloop and the goods of her loading from damage. And therefore the said Benjamin Scott did declare to protest, and by these presents doth solemnly protest against all and every person or persons whom it shall or may concern, and do declare, that all dangers, losses and detriments that have happened to the said sloop and the goods of her loading, are and ought to be borne by the merchants and freighters interested, or whomsoever else it shall or may concern, the same having occurred as before mentioned, and not by or through the insufficiency of the said sloop, or neglect of the said appearer, his officer, or any of his mariners. In witness whereof, the said appearers hereto set their hands, this 8th day of April, 1836."

The deposition of T. H. Eccles, the mate of the vessel, was then given in evidence on the part of the defendant. The material parts of it were as follows:

" I was mate of the sloop Neptune on the last voyage she made. She was owned by Captain Joseph Hand and Captain Taylor. The captain was Benjamin Scott. She had also, as hands on board, Peter M'Cann, and a man named John. The sloop was at Philadelphia in January eighteen hundred and thirty-six, receiving goods on board for Baltimore, but was prevented by the ice from sailing. The navigation was stopped till after the middle of March. The first vessel came up I think on the eighteenth of March, eighteen hundred and thirty-six. We left Philadelphia on the 26th day of March, 1836. Before we did so, we heard that the sloop Anna Maria had come out of the Chesapeake and Delaware Canal. We got down to Delaware City, at the mouth of the canal, on Sunday the 27th of March, 1836, and found the gates stanchioned up. Mr. Newbold, one of the chief directors down there, told us they would not let us into the canal for vessel and cargo and all they were worth. Mr. Wilson, the collector at the locks told us we would not get through under a month. We remained there some time, endeavouring to get permission to enter. I cannot now remember the time we stayed there--a regular journal was kept, but it was afterwards lost with the vessel. Finding it was impossible to enter the canal, we consulted among ourselves what was best to be done. We had no orders to go to sea, but as the vessel was perfectly seaworthy, and in all respects fitted for sea, and had made many voyages to sea (I had been in her three voyages by sea) we thought it better for all concerned, both owners of cargo and owners of vessel, to go round to Baltimore by sea, rather than

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