27 U.S. 150

2 Pet. 150

7 L.Ed. 379


January Term, 1829

WRIT of error to the circuit court of Kentucky.

The case was submitted to the Court, on the part of the counsel for the plaintiff in error, Mr Rowan, upon the following brief.

This was an action in the court below against defendants in error, owners of the steam boat Washington, to recover from them the value of four slaves, the property of the plaintiff, who, he alleged, were delivered to the commandants of said boat, to be carried thereon, and who, he alleged, were drowned by the carelessness, negligence, neglect or mismanagement of the captain and commandants of the said steam boat.

The declaration contained two counts, which are in the ordinary form.

Plea not guilty, and joinder in the usual form.

Upon the trial of the cause, the following bill of exceptions was signed by the judges, viz. 'Be it remembered, that at the trial of this cause, the plaintiff gave evidence, conducing to prove that the defendants were owners of the steam boat Washington. That the said boat Washington by them was used, and employed, on the Mississippi and Ohio rivers, as a common carrier of property and passengers, for freight and reward. That the steam boat Teche, in descending the Mississippi, with the plaintiff's agent, and the negroes mentioned in the declaration, and others on board, was blown up, and set on fire, and the passengers escaped from the burning Teche to the shore, about six miles below Natches. That the steam boat Washington, was ascending the Mississippi, and passed the burning Teche, and when she came opposite to them, the plaintiff's agent, the negroes, and others who had escaped from the Teche, were on shore; the agent of the plaintiff, with the negroes belonging to the plaintiff, was received into the yawl belonging to the defendants, a tender to the steam boat, for the purpose of conveying the negroes from the shore on the Mississippi to the steam boat, to be put on board the steam boat, and that the yawl was upset, the negroes in the declaration mentioned, were drowned; and evidence conducing to show that the yawl was upset by ill and imprudent management, in putting the steam boat in motion as the yawl approached, and before the passengers were on board the steam boat.

The defendants on their part gave evidence conducing to show that these negroes and other persons, to the number of sixteen, had been passengers on board the steam boat Teche, which had taken fire, and the passengers had been put on shore about six miles below Natches, from said Teche, in her distress. That these passengers, including the negroes, were taken into the yawl of the steam boat Washington, from their distress, so as aforesaid, from motives of humanity, and without any view to reward, at the request of captain Campbell, commanding the Teche, or of the agent of the plaintiff. That there was no agreement for hire, reward, or freight: none was charged or received. That it was the custom of steam boats in the river not to claim passage money or reward in such cases, from persons who were in distress, and unable to pay. And to repel the evidence of plaintiff, as to negligence, it appeared that there was no contract in this case, between the agent of the plaintiff and the owners or officer of the steam boat, about reward; but the yawl was sent to shore and the passengers taken in, without any contract, or conversation about the carriage, or about any reward.

The steam boat Teche when she took fire was descending. The steam boat Washington was ascending.

Upon this evidence the plaintiff moved the court to instruct the jury,

1. That if they find, from the evidence, that the defendants were owners of the steam boat, and by themselves, their officer, or servants of the boat, did actually receive into their yawl, the negroes of the plaintiff, to be carried from shore on board the steam boat, they are responsible for neglect and imprudent management, notwithstanding no reward, or hire, or freight, or wages, were to have been paid by Boyce to defendants.

2. That if they find from the evidence, that the steam boat Washington was owned by defendants, and used by them, on the river, as a common carrier, for wages and freight, and that the slaves of plaintiff were actually received by the agents and servants of the defendants, on board of the yawl, of and belonging to the defendants as a tender of the steam boat, to be carried from the land, put on board the steam boat, to be therein carried and transported, that the defendants were bound to the most skilful and careful management; and if the slaves were drowned in consequence of any omission of such skilful and careful management by the agents and servants in the conduct and navigation of the boat and tender, the defendants are answerable to the plaintiffs for the value of the slaves.

3. That if the jury believe the evidence in this case, the defendants would have had a legal right to demand a reasonable compensation for their undertaking to transport said slaves on board their boat; and their afterwards waiving, or declining that right, from motives of humanity, or any other motive, does not change or diminish their legal responsibility as common carriers for hire or reward.

The defendants moved the court, 'to instruct the jury that, if they find from the evidence that the slaves in controversy were taken on board of the yawl at the instance, and in pursuance of the request of the captain of the Teche, from motives of humanity and courtesy alone, that the defendants are not liable, unless they shall be of opinion, that the slaves were lost through the gross neglect of the captain of the steam boat, or the other servants or agents of the defendants.'

The court gave the first instruction moved by the plaintiff, with this qualification, 'that gross negligence, or unskilful conduct was required to charge the defendants.' The second and third instruction moved by the plaintiff, the court refused to give, and instructed the jury, 'that the doctrine of common carriers did not apply to the case of carrying intelligent beings, such as negroes; but that the defendants were chargeable for negligence, or unskilful conduct.' The court gave the instructions asked for by the defendants.

It is believed and alleged, that the court erred in refusing to give the instructions required by plaintiff, and in giving those required by defendants; and especially, in instructing the jury that the doctrine of common carriers did not apply to the case.

The counsel for the defendants in error, Mr Bates, stated, that the question in the cause was, whether the law of carriers applies to the transportation or conveyance of slaves.

He contended, that in all its principles the law did not and could not extend. The care which might be exercised over inanimate property, which could be disposed of for its security at the will of the carrier, was not to be exercised on human beings, with the powers and rights of locomotion, and of self-preservation by different means from those which were enjoined on the carriers of merchandize. The responsibility of the carrier of slaves must therefore be limited.

Under the Roman law the condition of slaves was essentially different from that of slaves here. In Rome the power of life and death was vested in the master. Here slaves have rights secured to them; they are protected by law to a certain extent from personal violence, their lives are under the guardianship of the law; and they have even some political power, as they are enumerated in the represented population of the United States. Slaves are here in a mixed character.

The general doctrine of the law of carriers will not therefore apply to them; but those principles which by that law impose obligations on the carrier not to suffer or commit gross negligence do apply. The facts in this case do not establish gross negligence, and as the carriers of the boat were not bound for 'the most skilful care,' but only for 'usual care,' the plaintiff in error has no case.

The proposition in the second instruction is, that the owners of the steam boat Washington might have received a compensation for carrying the slaves from the shore to the boat. It is contended that there was no contract, and lord Mansfield has said, that no compensation is due for a voluntary courtesy. Upon the Mississippi no compensation is ever given for carriage from the shore to the boat; and in this case, the obligations of humanity alone prompted those acts, from which the plaintiffs demand of this court, that the owners of the Washington shall be made liable for the slaves lost by the performance of gratuitous kindness. Such a decision would be against policy as well as against justice.

Mr Chief Justice MARSHALL delivered the opinion of the Court.


This was an action brought in the court of the United States, for the seventh circuit and district of Kentucky, against the defendants, owners, &c.


There being no special contract between the parties in this case, the principal question arises on the opinion expressed by the court, 'that the doctrine of common carriers does not apply to the case of carrying intelligent beings, such as negroes.'


That doctrine is, that the carrier is responsible for every loss which is not produced by inevitable accident. It has been pressed beyond the general principles which govern the law of bailment, by considerations of policy. Can a sound distinction be taken between a human being in whose person another has an interest, and inanimate property?


A slave has volition, and has feelings which cannot be entirely disregarded. These properties cannot be overlooked in conveying him from place to place. He cannot be stowed away as a common package. Not only does humanityforbid this proceeding, but it might endanger his life or health. Consequently this rigorous mode of proceeding annot safely be adopted, unless stipulated for by special contract. Being left at liberty, he may escape. The carrier has not, and cannot have, the same absolute control over him, that he has over inanimate matter. In the nature of things, and in his character, he resembles a passenger, not a package of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods.


There are no slaves in England, but there are persons in whose service another has a temporary interest. We believe that the responsibility of a carrier, for injury which such person may sustain, has never been placed on the same principle with his responsibility for a bale of goods. He is undoubtedly answerable for any injury sustained in consequence of his negligence or want of skill; but we have never understood that he is responsible farther.


The law applicable to common carriers is one of great rigour. Though to the extent to which it has been carried, and in the cases to which it has been applied, we admit its necessity and its policy, we do not think it ought to be carried farther, or applied to new cases. We think it has not been applied to living men, and that it ought not to be applied to them.


The directions given by the court to the jury informed them, that the defendants were responsible for negligence or unskilful conduct, but not otherwise.


Sir William Jones, in his Treatise on Bailments, p. 14, says, 'When the contract is reciprocally beneficial to both parties, the obligation hangs in an even balance; and there can be no reason to recede from the standard: nothing more, therefore, ought in that case to be required than ordinary diligence, and the bailee should be responsible for no more than ordinary neglect.' In another place (p. 144) the same author says, 'A carrier for hire ought, by the rule, to be responsible only for ordinary neglect; and in the time of Henry VIII., it appears to have been generally holden, that a common carrier was chargeable in case of a loss by robbery, only when he had travelled by ways dangerous for robbing, or driven by night, or at any inconvenient hour.'


This rule, as relates to the conveyance of goods, was changed an commerce advanced, from motives of policy. But if the court is right in supposing, that the strict rule introduced for general commercial objects, does not apply to the conveyance of slaves, the ancient rule 'that the carrier is liable only for ordinary neglect,' still applies to them.


If the slaves were taken on board the yawl to be conveyed in the steam boat, solely in consequence of their distress, and from motives of humanity alone, no reward, hire or freight being to be paid for their passage, as the first prayer of the plaintiff and the prayer of the defendant suppose, the carrier would certainly be responsible only in a case of gross neglect; and the qualification annexed to this construction was correct.


We think that in the case stated for the instruction of the circuit court, the defendants were responsible for the injury sustained, only in the event of its being caused by the negligence, or the unskilfulness of the defendants or their agents, and that there is no error in the opinion given.


This cause came on to be heard on a transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.

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