majority">BETTS, District Judge.

The libellant seeks to recover, in this action, for several distinct items of damage connected with a breach of a contract of affreightment, entered into between himself and the master of the Zenobia, and which, as he charges, was wilfully violated by the latter. The allegations of damage are, many of them, distinct in their nature, and require to be separately considered.

The libellant shipped on board of the Zenobia, then lying at Whampoa, China, for transportation to this port, sundry cases of merchandise. On the arrival of the vessel here, it was found that the articles contained in a trunk belonging to libellant had become injured by being wet. The other cases passed into the custom-house, and by the neglect of the master to make the proper entries upon the ship’s manifest, the libellant was greatly delayed in obtaining their delivery to him. The vessel is undoubtedly responsible to the libellant for the safe carriage and delivery of the goods laden by him on board her, and he is entitled to recover damages for a breach of duty in this respect.

As regards the injury to the articles contained in the trunk, the defence is, that the damage was occasioned by the perils of the sea. But there being no bill of lading in the case, exempting the vessel from liability for losses arising from perils of the sea, it becomes necessary for the claimants to prove that the injury arose from supernatural causes. In other words, the liability of the ship, as a common carrier, can only be discharged by showing that the loss.was incurred from perils embraced within the meaning of the phrase, ‘‘the act of God.” The cases are very numerous in which the attempt has been made to exempt the common carrier from this strict liability for losses occasioned by casualties not absolutely unavoidable; but the rule is uniform, and is sanctioned by authority too strong to bo questioned, that to bring a disaster within the scope of the phrase, “the act of God,” for the purpose of relieving the common carrier from responsibility, it is necessary to *927show that it occurred independent of human action or neglect. It is only a natural and inevitable necessity, and one arising wholly above the control of human agencies, which constitutes the peril or disaster contemplated by that phrase. 2 Kent, Comm. 597. In the absence of an exemption to be gathered from the contract of affreightment, the carrier cannot excuse a loss, resulting in any degree from the influence of human means, excepting only a loss from the force exerted by a public enemy. Numerous cases upon this subject are collected and discussed in McArthur v. Sears, 21 Wend. 190. See, also, The Reeside [Case No. 11,657]; 1 Conn. 487; Story, Bailm. §§ 512, 531; Whitesides v. Russel, 8 Watts & S. 44. Any act of omission, neglect, or carelessness on the part of the master or crew, contributing to the loss, takes away the protection of the defence here relied upon.

It is in proof, on the part of the libellant, that the trunk was stored in the long-boat, and that such storage was not proper for freight of that description. The vessel must therefore be held responsible for the injury received by the contents of the trunk.

There is also a demand for damages because of the misconduct of the master in the preparation of his manifest, and in thwarting the libellant in his efforts to obtain the delivery of his goods in this port. How far these particulars if proved with all the aggravations charged in the libel, might afford substantive ground of action, I do not now examine or decide. The testimony does not present a case requiring such decision. But the delay of the master in presenting a proper manifest, so that the libellant could pass his property through the custom-house, is a neglect of his duty as master; and damages naturally incident to any failure of duty towards the shipment on the part of the master, fall properly within the responsibility of the vessel. She is bound for the safe carriage and due delivery of the cargo; and 'acts of misconduct by the master, which are injurious in either respect to the shipper, will subject her to make adequate recompense to the freighter. The liability of the vessel upon this score is, however, limited to damages for the act or neglect of the master in his capacity as such. Por any tortious endeavor on his part to prevent the libel-lant from recovering possession of his goods, she is not responsible; nor would such acts of the master, committed at this port, and in command of the ship, fall within the jurisdiction of the court, in an action against him personally.

It will be difficult to flx upon a measure of damages in that respect which will meet the particular merits of the case yet rest on principles of general application. The actual damage to the owner of goods may be very great, yet when the damage to a consdera-ble degree is merely consequential, it cannot be charged in its entirety upon the vessel as the immediate and proximate cause of it. If the goods were subject to freight, I should be inclined to regard a loss from the misconduct of the master in withholding their delivery, a proper counter-claim against the freight; but these goods being the personal baggage of libellant and family, and not chargeable with freight, I think some compensation awarded by way of demurrage as it were, will be the appropriate mode of satisfaction. The master made oath before the deputy collector to the manifest, on May 8th, the libellant being then here, seeking the delivery of his property; and did not make the proper baggage entry thereon, so that the goods could be obtained by the libel-lant until June 15th. This act, although importing wilful misconduct on the part of the master, was yet within the scope of his authority, and accordingly the vessel stands chargeable with its consequences. Abb. Shipp. 152, 158. I regard the delay to the owner in obtaining his goods, and his necessary expense in procuring them from the custom-house, as imposing on him a loss or damage amounting to $2 per day; and without a more satisfactory measure of compensation, I shall adopt that as a reasonable remuneration, and allow him the sum of $74, because of the wrongful nondelivery of his property pursuant to the shipping contract.

The libellant charges that a chest of drawers which was shipped by him amongst the eases of merchandise above referred to, contained the sum of twenty-five hundred dollars in specie, and that this money was missing from the chest when delivered to him in this port. There is no evidence, however, to support either of these averments; and the claimant proves, by the testimony of one of .the mates of the vessel, that the libellant himself had access to the chest of drawers while it was yet on board the vessel; that he took a bundle from the furniture previous to its being landed, and that no complaint was then made by him of the loss of any money. He establishes no right to recovery on this part of his claim.

The libel avers that the libellant contracted with the master of the Zenobia to convey him and his family from Whampoa to this port; that he paid the 'master of the bark in advance $150, being one half of the passage money, and that the vessel sailed without him, previous to the time appointed and without his knowledge. I think the libel-lant has established this charge, and is entitled to recover against the bark his damages for this breach of contract by the master, to transport him and his family as passengers. This contract was one which it was competent for the master to make in the employment of the ship, and became binding on the vessel. Abb. Shipp. 160; 3 Kent. Comm. 102. The vessel is liable on this contract for the $150 paid the master in advance in China, upon the grounds stated *928in the former decision of the court in this cause, in July last. [Case No. 18,208.]

The libellant came down from his residence at Hong Kong to Whampoa, in season to embark on the Zenobia on November 2Stk, which was her appointed day of sailing, but found she had already left. His expenses incurred in coming down to Wham-poa are stated at $60. and his further expenses incurred through his detention at Whampoa, at $64, besides $16 paid in going to Canton to confer with the agents of the bark respecting her departure. There is no ground upon which the libellant can claim to recover the cost of his passage from Hong Kong to Whampoa, as he must necessarily have made that voyage, whether he came home in the Zenobia or the Rainbow. But the vessel is chargeable with the expenses of the libellant incurred in waiting at Whampoa, after the Zenobia had left, for the sailing of a vessel in which he might take passage to the United States. The evidence shows that $64 is a moderate allowance for those expenses, and that sum should accordingly be allowed.

It is not necessary to discuss the question of the liability of the vessel or master to the libellant for the disbursements said to have been made at Canton in a premium for the loan alleged in the libel to have been paid, or for the new supply of clothing for himself and family there purchased. No proof is given that the libellant made any such disbursements, and the court cannot presume them from any supposed necessity, arising from the circumstances of the case.

I consider the bark equitably liable because of the violation of the contract to transport the libellant and his family to this port, in damages equal to the cost of his passage to this country in the Rainbow, upon the general grounds upon which X have already placed his right to recover back the advance passage-money. That disbursement is fairly chargeable upon the ship as a portion of the damages recoverable by li-bellant for the breach of the passage contract. The sum of $400 paid by him is proved to be below the usual and customary rate of charge for such passages, and that sum he is entitled to recover.

A reference must necessarily be had to a commissioner, to ascertain the amount of injury to the clothes' contained in the trunk, by wetting, unless the parties can agree to the amount of such damage.

It is proper to remark, in respect to the deposition of Captain Cronstadt, the respondent, which was offered in the cause, that even if it were legally admissible, it would not in my estimation, displace the other evidence in the cause, nor vindicate his conduct. But he stands a party to the suit, being prosecuted in personam, and subject to a decree against himself for all the liabilities of the vessel in this behalf; and the ease of Bridges v. Armour, 5 How. [46 | U. S.] 91, seems to settle the point that he is an incompetent witness in the cause.

The decree will accordingly be for the li-bellant, as above, and for full costs of suit.

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