THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, AT DECEMBER TERM, 1860. FRANKLIN MOORE, GEORGE FOOT, AND GEORGE F. BAGLEY, PLAINTIFFS IN ERROR, V. THE AMERICAN TRANSPORTATION COMPANY. An act of Congress passed on the 3d of March, 1851, (9 Stat. at L., 635,) entitled "An act to limit the liability of ship owners, and for other purposes," provides that no owner of any ship or vessel shall be liable to answer for any loss or damage which may happen to any goods or merchandise which shall be shipped on board any such ship or vessel, by reason of any fire happening on board the same, unless such fire is caused by design or neglect of such owner, with a proviso that the parties may make such contract between themselves on the subject as they please. The seventh section provides that this act shall not apply to the owner or owners of any canal boat, barge, or lighter, or to any vessel of any description whatsoever used in rivers or inland navigation. The exception does not include vessels used on the great lakes. Consequently, where goods were consumed by fire upon Lake Erie, without any design or neglect on the part of the owner of the vessel, he was not responsible for the loss. The act not only exempts the owner from the casualty of fire, but limits his liability in cases of embezzlement or loss of goods on board by the master and others, and also for loss or damage by collisions, and even from any loss or damage occurring without the privity of the owner, to an amount not exceed ing the value of the vessel and freight. THIS case was brought up from the Supreme Court of the State of Michigan, by a writ of error issued under the 25th Moore et al. v. American Transportation Co. section of the judiciary act; the construction of a clause of a statute of the United States (the exception in section 7 of the act of March 3, 1851) being drawn in question, and the decision being against the right set up and claimed by the plaintiffs in error. The suit was originally commenced in the Circuit Court for the county of Wayne, in the State of Michigan, holden in the city of Detroit, and was brought by the plaintiffs in error, merchants resident in that city, against the American Transportation Company, a corporation created by the State of New York. The declaration was in assumpsit, and charged the defendants as common carriers by water, of goods and chattels for hire, by canal boats and steam propellers, from New York to Detroit. It then alleged the delivery of about $3,000 worth of groceries on board the propeller at Buffalo, which were not delivered through the burning of the propeller. The defendants pleaded the general issue, non assumpsit, and, under the Michigan practice, appended to the plea a notice that the statute of March 3, 1851, would be relied on as exempting the defendants. No replication was filed setting up the exception in the last section of said act, because the practice in that State does not permit such a pleading. The cause was tried twice. At the first trial, the Circuit Judge ruled in favor of the plaintiffs, instructing the jury that that portion of the act giving the exemption claimed by the defendants was not applicable to the case, but that the vessel was engaged in inland navigation, under the exception, as claimed by the plaintiffs; and accordingly, September 11, 1857, the plaintiff's had a verdict of $3,050.70. The defendant presented a bill of exceptions, and took a writ of error to the Supreme Court of Michigan, where the verdict was set aside and a new trial granted, upon the ground that the propeller, when navigating Lake Erie, was not engaged in inland navigation under said exception, as claimed by the plaintiff, and held by the court below. The case is reported in 5 Mich., (1 Cooley,) 368. November 16, 1858, the new trial was had; and of course it resulted, Moore et al. v. American Transportation Co. under the decision of the appellate court given above, in a verdict for the defendants. The plaintiffs then filed their bill of exceptions, given at large in the record, showing that they requested the court to charge "that the act of Congress of March 3d, 1851, had no applicability to the case, inasmuch as the 'Spaulding,' being used principally in navigating between the cities of Buffalo and Detroit, by way of Lake Erie and Detroit river, was engaged in river and inland navigation within the exception in the last clause of section 7 of said act;" and that the court. refused so to charge, and charged to the contrary, and the plaintiffs duly excepted. Upon writ of error by the plaintiffs, the Supreme Court of Michigan affirmed the judgment below, in accordance with their former decision, and the plaintiffs brought the case up to this court. It was argued by Mr. Walker and Mr. Russell for the plaintiffs in error, and by Mr. Hibbard for the defendants. A motion was made to dismiss the writ for want of jurisdiction, but the arguments upon this point will not be reported, nor upon the point of the constitutionality of the act of Congress. The argument of Mr. Russell and Mr. Walker upon the main point, for the plaintiffs in error, was as follows: The question to be decided is, whether a vessel engaged in navigation and commerce between the port of Buffalo, on Lake Erie, and the port of Detroit, on the river Detroit, is within the meaning of said act of Congress, "used in rivers or inland navigation." While we most cheerfully concede that the intention of the Legislature is to be derived from the language which it has used, yet, in ascertaining that intention, the previous state of the law, the defects to be remedied, and the history of the legislation, may all be appropriately referred to. Sedgwick on Statutes, 237, 239. By the common law, the stringent rule in relation to the Moore et al. v. American Transportation Co. liabilities of common carriers was held to be as applicable to common carriers by water as by land. Morse v. Slue, Ventris, 190, (23 Car., 2d.) Same, Raymond, 220. Rich v. Kneeland, (11 Jac., 1st,) Cro. Jac., 330. The first limitation of the liability of ship owners was by the act of 7 Geo. II, c. 15, A. D. 1734. It is not easy to determine what at this time was the liability of ship owners by the Continental law, nor was that law uniform; but it is very clear that they were not held to so strict a liability as by the common law. Thus it would seem, that in case of embezzlement or other wrong, by the master or mariners, that the owner was only liable to the extent of ship and freight. Abbott on Shipping, 395. Story on Bailments, sec. 488. Hunt v. Morris, 6 Mart. La., 676; 3 Kent., 218. The act of Parliament referred to provided substantially for the same thing, and thus put English ships upon an equality with foreign vessels. The special occasion of the passage of this act seems to have been the decision in the case of Boucher v. Lawson, which held that owners were, under some circumstances, liable for embezzlements committed by the master, without default of the owner. Abbott on Shipping, 128, 395. The liabilities of ship owners were still further limited by the act 26 Geo. III, A. D. 1786. By this act owners were exempted from liability in case of robbery, although not committed by the master or persons employed upon the vessel, and also from all responsibility in case of loss or damage by fire. Abbott on Shipping, 397, 398. This act seems to have been suggested by the case of Sutton v. Mitchell, 1 Term Reports, 18, which was an attempt to make the owners responsible for a robbery committed at the instigation of a mariner. Abbott on Shipping, 397. Moore et al. v. American Transportation Co. Two other cases decided the same year (1785) may have had some influence in promoting this legislation. Forward v. Pittard, 1 Term, 27. Trent Navigation Co. v. Wood, 3 Esp., 127. The liabilities of ship owners were still further limited by 53 Geo. III, c. 159, which exempted owners from all responsibility for any damage, by reason of any act or neglect without their fault or privity, beyond the value of the ship or vessel and freight. Abbott on Shipping, 398. The object of all this legislation was to encourage British shipping, and put it at least upon an equality with that of other nations, and it has accordingly been held that these laws were only applicable to British shipping. The Dundee, 1 Hagg., 113. Pope v. Dogherty, 7 Am. Law Reg., 181. Although the rule of the common law, in relation to the liability of common carriers, has been fully recognised in this country from its earliest settlement, and the applicability of that rule to carriers by water, and although in many instances ship owners have been held liable for losses by fire occurring without neglect on their part, yet no successful attempt was made to limit their liabilities until the passage of the act of 1851. 2 Kent's Com., 599 and 609. McClure v. Hammond, 1 Bay., 99. 1810, Scheiffelin v. Harvey, 6 Johnson, 170. 1834, Harrington v. Shaw, 2 Watts, 33. 1838, Patton v. McGrath, Dudley, 159. 1843, Hale v. N. J. S. Nav. Co., 15 Conn., 539. 1848, N. J. S. Nav. Co. v. Merchants' Bank, 6 How., 334. These last two cases, which grew out of the burning of the Lexington, very strongly attracted the attention of shipping and commercial men, and led to the enactment of March 3, |