#### JOSIAH PENDER v. JAMES ROBBINS.

"Where the Master of a vessel, engaged chiefly in carrying naval stores between a port in North Carolina and the city of New York, took in charge a box of jewelry without including it in a bill of lading, and without any contract as to the price for carrying it, it was Held that he was only liable as an ordinary bailee, and not as a common carrier, and that having kept it in his cabin, locked up in his chest, and having been violently robbed of the property, with his own, in the night time, he was not guilty of negligence, and was not liable for the value of it.

Held further, that the nature of this bailment did not bind the defendant to a direct voyage from the one port to the other, so as to subject him for a deviation.

Tins was an action on the case, tried before Caldwell, J., at the last Spring Superior Court of Beaufort county.

The plaintiff declared in tort against the defendant, alleg-ging that he undertook and promised to carry a certain box, containing watches, from the town of "Washington, 27. C., to New York, and to deliver them to Kingsly & Co., and that from negligence and the want of care, those articles had not been delivered as agreed, but had been lost.

One Rouse testified, that he went to Tarboro’, and purchased some articles of jewelry from the plaintiff, and in the bill furnished him by the plainiiff, the watches in question were included ; that they needed repairs, and it was agreed between him and the plaintiff, that Rouse should take them, provided they were repaired; that not having been sent to him, he sent to the plaintiff for them, and when they were brought, they had not yet been repaired ; that he kept them in his shop at Greenville, where he lived, until the plaintiff came to the place, who directed him to send the watches, to Kingsly & Co., at New York, who would repair them.

One Hoyt testified, that he received the box from Rouse, with a request to send it to Kingsly & Co., New York, and that he took it to the defendant, then master of a vessel trading to New York, chiefly in naval stores, who received it, and promised to deliver it to Kingsly & Co., New York; that the *208defendant made the voyage and returned in the usual time, and told the witness, that he had not delivered the watches ; that his business had led him to a place on East River, and that lie had not been to New York at all; that he then offered to return the articles, but it was agreed that he should take the box [and deliver it to Kingsly & Oo. on his next voyage.

It appeared from the evidence, that on the night the vessel reached New York, being anchored in the river, she was boarded by robbers, and his chest violently taken out of the cabin where he (the master) was sleeping, and broken open and plundered of its contents ; that the box of watches in question, was in the chest, and was taken out with his own property, and never recovered. There was no evidence that the defendant was to have any thing for carrying the watches, nor were they containcd-in any bill of lading given by the latter.

The defendant’s counsel insisted that, according to the testimony of Rouse, the property in the watches was in him, and not in the plaintiff; secondly; that, Hoyt had made a new contract with defendant, before he started on his second voyage, and there was no evidence of negligence under it. Thirdly ; that the deviation alleged, supposing there was not a second contract, would not, in law, subject the defendant to damages.

The Court charged the jury, that if they believed the witness Rouse, the property in the watches was in the plaintiff, and not in the said Rouse ; that as to Hoyt’s agency, it expired when he made the contract with the defendant in the first instance; and upon the third point, the Court charged that the defendant, in deviating in the voyage as deposed to, in violation of his contract, had rendered himself liable to the plaintiff for the loss of the watches, though they had been taken as deposed to. Defendant excepted.

The jury, under these instructions, found a verdict for the plaintiff, upon which the Court gave judgment, and the defendant appealed to this Court.

*209 Hodman, for the plaintiff.

Donnell and Shaw, for the defendant.

Battle, J.

Ve agree with the counsel for the plaintiff, that the property in the watches was not transferred to Rouse, for the reason that the latter was not to have them until they should be repaired — and that was never done.

Upon the question of the responsibility of the defendant for the loss of the watches, our opinion is decidedly against the plaintiff. The defendant, though the master of a vessel, trading between the town of Washington, in this State, and the city of New York, did not contract with the plaintiff to cany his goods, as a common carrier. The articles were not included in any bill of lading, and it does not even appear that the defendant was to be paid any thing for carrying them. Being jewelry, it is admitted by the plaintiff’s counsel, that the act of Congress of 1851, (see Brightly’s Digest of the U. S. Laws, p. 834, sec. 50, 54,) prohibits him from charging him otherwise than as a bailee, guilty of negligence or misfeasance. Such being the case, the authorities to which he refers on the subject of deviation from the straight and- shortest course of the voyage, have no application. See Abbott on Shipping 237, Harrell v. Owens 1 Dev. & Bat. Rep. 273. The defendant, as a bailee, with or without reward, cannot be supposed to have undertaken to carry the plaintiff’s goods direct to New York, inconsistent with his duty as master to sail with his cargo to another port. The ntmost extent of his engagement was to deliver them to the proper persons in New'-York, whenever ho could go there, and such was evidently the understanding of the plaintiff’s agent, Iloyt, before the goods were lost. That engagement bound him only to ordinary-care in keeping the goods, even supposing him to have been a bailee for hire. Such care he did take of the watches, for | he kept them locked up in a chest in his own cabin, and lost t them at the same time, and in the same manner, that he lost^ some of his own goods by the violent action of nocturnal rob-* hers. Unless he could be deemed a common carrier, which it is *210admitted he could not, we cannot imagine how he could make out a more complete defence against the imputation of gross, or even ordinary neglect. The judgment must be reversed, aud a venire de novo awarded.

Pee CuRiak, Judgment reversed.