Harrington and others against M'Shane, 2 Watts 443

The opinion of the Court was delivered by Sergeant, J. It appears by the evidence, that it is the usage on the western waters, for steamboat owners, in addition to the business of carrying goods, to act as factors, to make sales and returns, without being paid any other consideration than the freight; and that the defendants, by their agent Hyatt, who was also part owner in the boat, received the plaintiff’s flour to transport .to Louisville and sell, in consideration of being paid a certain freight per barrel.

The flour was taken there and sold, and the money which it produced was in the boat on its return up the river, separated from olher moneys, and was destroyed by a fire which consumed the boat and its contents. This fire was the result of accident, without any neglect of the defendants, or the master and crew, the latter having used every possible exertion to rescue the money from the flames. The owners of steamboats transporting goods on freight are common carriers, and are liable for all losses in the course of their employment as such, except those occasioned by the act of God or the public enemy.

This rule of the common law on the subject of carriers, was adopted on grounds of public policy, to prevent, on the part of those undertaking a public duty, secret frauds, out of the power of the proprietors of the goods to detect or establish by proof. No reason exists why the rule should be relaxed. In relation to a factor or consignee there is a different principle: he is responsible only for negligence. The question of the defendants’ responsibility in_the present case, depends on the character in which they held this money when the loss occurred.

If they were merely factors, they are not responsible: if they were carriers, the reverse must be the case. Had the flour been lost in the descending voyage, by a similar accident, there could be no doubt whatever of. the defendants’ liability: they were certainly transporting it in the character of carriers. On their arrival at the port of destination and landing the flour there, this character ceased and the duty of factor commenced.

When the flour was sold, and the specific money, the proceeds of sale, separated from other moneys in the defendants’ hands and set apart for the plaintiffs, was on its return to them by the same boat, the character of carrier reattached. The return of the proceeds by the same vessel, is within the scope of the receipt and of the usage of trade as proved, and the freight paid may be deemed to have been fixed with a view to the whole course of the trade, embracing a reward for all the duties of transportation, sale and return.

If the defendants, instead of bringing the money home in their own vessel, had sent it on freight by another, there would have been to the plaintiffs the responsibility of a carrier, and there ought not to be less if they chose to bring it themselves. If they had mixed the money up with their own, they would have no excuse for nonpayment.

The defendants can be relieved from responsibility only by holding that the character of carrier never existed between these parties at all, or that if it existed on the descending voyage, it ceased at its termination, and that of factor began and continued during the ascending voyage. But if the defendants bring back, in the same vessel, other property, the proceeds of the shipment, whether specific money or goods, they do so as carriers, and not merely as factors. See Story on Bailm. 350. In the cases of Kemp v. Coughtry, 11 Johns. 107; and Emery v.

Hersey, 4 Greenl. 407, the points involved in the present case were discussed, and received the same determination. Judgment affirmed.