with he heaving lines, so as to be able to draw up water, and help to check promptly any fire which might break out. And in consequence of their fewness or bad location, some of the very boxes containing the specie of the plaintiffs were broken open and emptied, in order to hold water. Lastly, when discovered, the officers and crew do not appear generally to have made either prompt or active exertions to extinguish the fire, or to turn the vessel nearer shore, where this property, and the passengers, would be much more likely to be preserved, eventually, than by remaining out in the deep parts of the Sound. cates not long before obtained of the good con- | except in a single instance, were not rigged dition of the boat. But on the proof, she does not seem to have been in a proper state to guard against accidents by fire when this loss occurred. Her machinery was designed at first to burn wood, and had not long before been changed to consume anthracite coal, which created a higher heat. And yet there was a neglect fully to secure the wooden portions of the boat, near and exposed to this higher heat, from the natural and dangerous consequences of it. So was there an omission to use fire brick and new sheet iron for guards, nigh the furnace. On one or two occasions, shortly before this accident, the pipe had become reddened by the intense heat so as to attract particular attention; and shortly before, the boat actually caught fire, it is probable, from some of those causes, and yet no new precautions had been adopted. In the next place, the act of Congress, 5 Stat. at Large, pp. 304, 305, requires the owners of steamboats "to provide as a part of the necessary furniture, a suction hose and fire engine and hose suitable to be worked in said boat, in case of fire, and carry the same upon each and every voyage in good order." Sec. 9. And it imposes also a penalty of $500 for not complying with any condition imposed by the act. Sec. 2. The spirit of this requisition is as much violated by not having the hose and engine so situated as to be used promptly and efficiently, as by not having them at all, or not having them "in good order." The hose and engine were not kept together, and hence could not be used on that fatal night. One was stowed away in one part of the boat, and the other elsewhere, so as not to be in a situation to be brought promptly into beneficial use. Again, it was an imperative provision in the act of Congress before referred to (sec. 9) - and the neglect of it was punished by a fine of $300, on the owner as well as master-"that iron rods or chains shall be employed and used in the navigating of all steamboats, instead of 425*] wheel or tiller ropes." *Yet this was not complied with, and renders their conduct in this respect, not only negligent, but illegal. Though, in fact, this accident may not have proved more fatal than otherwise from this neglect, the non-compliance with the provision was culpable, and throws the burden of proof on the owners to show it did not contribute to the loss. Waring et al. v. Clarke, 5 Howard, 463. It is true that Congress, some years after, March 30, 1845, dispensed with a part of this provision, (5 Stat. at Large, 626), under certain other guards. Yet in this case even those other guards were wholly omitted. Nor does there appear to have been any drilling of the crew previously, how to use the engine in an emergency, or any discipline adopted, to operate as a watch to prevent fires from occurring, or, after breaking out, to extinguish them quickly. Indeed, the captain, on this occasion, checked the efforts of some to throw the ignited cotton overboard, so as to stop the flames from spreading, by peremptorily forbidding it to be done. The respondents, to be sure, prove that several buckets were on board. But the buckets, The extent and nature of the liability thus caused are well settled at law. The property of the plaintiffs was destroyed by fire, through great neglect by the defendants and their agents. Common carriers are liable for losses by fire, though guilty of no neglect, unless it happen by lightning. 1 D. & E. 27; 4 D. & E. 581; 3 Kent's Com. 217; 5 D. & E. 389; Gilmore v. Carman, Smedes & Marsh. 269; King et al. v. Shepherd, 3 Story's Rep. 360; 2 Browne, Civ. and Adm. Law, 144; 2 Wend. 327; 21 Wend. 190. These respondents were common carriers, in the strictest and most proper sense of the law. King et al. v. Shepherd, 3 Story's Rep. 349; see other cases, post. They would, therefore, be liable in the present case without such neglect, if this view of it applied to a recovery on the ground of a tort as well as of a contract. But as it may not, *the next inquiry is if the facts dis- [*426 close a breach of duty, a culpable neglect, either by the officers or owners of the vessel, amounting to a tort, and for which the defendants are responsible. It is well settled that a captain is bound to exercise a careful supervision over fires and lights in his vessel, ordinarily. Malynes, 155; The Patapsco Ins. Co. v. Coulter, 3 Peters, 237, 228, 229; Busk v. The Royal Ex. Ass. Co. 2 Barn. & Ald. 82. He is required in all things to employ due diligence and skill (9 Wend. 1; Rice's R. 162), to act "with most exact diligence" (3) Esp. 127) or with the utmost care (Story on Bailm, sec. 327.) But how much more so in a steamboat, with fires so increased in number and strength, and especially when freighted with very combustible materials, like this, chiefly with cotton! His failure to exert himself properly, to extinguish any fire amounts to barratry, 3 Peters, 228, 234; Waters v. Merch. Louisville Ins. Co. 11 Peters, 213; 10 Peters, 507. And if the property be insured against barratry, the owners may then recover. To be sure, in one case the owners of a steamboat were exonerated from paying for a loss by fire. But it was only under the special provision of the local laws, rendering them exempt, if the fire occurred "by accidental or uncontrollable events." See Civil Code of Louisiana, 63d article; Hunt v. Morris, 6 Martin, 681. So the written contract for freight, as well as that for insurance, sometimes does not cover fire, but specially exempts a loss by it. Kent's Com. 201-207. In such case there may be no liability for it on the insurance, and doubtfully on the charter | spective duties, the life or lives of any person or bill of lading, unless it was caused by gross on board said vessel may be destroyed, shall be manageable horses, or when occasioned by overloading the coaches, as these would imply negligence or want of care." Beckman v. Shouse, 5 Rawle, 183. From the above circumstance, the conclusion is almost irresistible, that what constitutes a gross neglect by the respondents and their agents, as to the condition of the boat and its equipments, existed here, and by the deficien427*] cies and imperfection *of them contributed much to the loss of this property; and beside this, that want of diligence and skill on board, after the fire broke out, as well as want of watchfulness and care to prevent its hap pening or making much progress, was manifest. If any collateral circumstance can warrant the exaction of greater vigilance than usual, on occasions like these, or render neglects more culpable, it was, that the lives of so many passengers were here exposed by them, and became their victims. This last consideration is imperative, in cases of vessels devoted both to freight and passengers, to hold the owners and their servants responsible for the exercise of every kind of diligence, watchfulness, and skill which the principles of law may warrant. Beside the great amount of property on board on this occasion, they had in charge from one to two hundred passengers, including helpless children and females, confiding for safety entirely to their care and fidelity. All of these, except two or three, were launched into eternity, during that frightful night, by deaths the most painful and heartrending. Had proper attention been devoted to the guards against fire, such as prudence and duty demanded, or due vigilance and energy been exercised to extinguish it early, not only would large amounts of property probably have been saved, but the tragic sufferings and loss of so many human beings averted. In view of all this, to relax the legal obligations and duties of those who are amply paid for them, or to encourage careless breaches of trusts the most sacred, or to favor technical niceties likely to exonerate the authors of such a calamity, would be of most evil example over our whole seaboard, and hundreds of navigable Showing, then, as the facts seem to do here, wrongs and gross neglects by both the owners and officers of the boat, the next step in our inquiries is, whether any principles or precedents exist against their being prosecuted in admiralty as a *tort, and by a proceed- [*428 ing which sounds ex delicto, and entirely inde The recovery, in cases like this, on the tort, counting on the duty of the carrier and its breach by the negligent loss of the property, is common, both in this country and abroad, in the courts of common law. over Whether it be redressed there in trespass or case, when suing ex delicto, is immaterial, if, when case is brought, the facts, as here, show neglect or consequential damage, rather than those which are direct and with force. And if case lies at common law on such a state of facts, there seems to be no reason why a libel in admiralty may not lie for the wrong, whenever, as here, it was committed on the sea, and clearly within admiralty jurisdiction torts. For the admiralty is governed by like principles and facts, as to what constitutes a tort, as prevail in an action at law for damages, and its ingredients are the same, whether happening on land or water. But case will lie at law, on facts like those here, for reasons obvious and important in the present inquiry. Indeed, on such facts the ancient action was generally in case, and counted on the duty of the carrier to transport safely the property received, and charged him with tortious negligence in not doing it. 1 Price, 27; 2 Kent's Com. 599; 3 Wend. 158. In such proceedings at common law, the difference was in some respects, when ex delicto, more favorable to the owners, as then some neglect, or violence, or fraud, or guilt of some kind, must be shown, amounting to a breach of public duty by the carrier or his servants. Hinter v. Dibdin et al. 2 Adol. & Ell. N. S. 646; 2 New R. 454: 2 Chit. R. 4. While in the action of assumpsit, more modern, but by no means exclusive, the promise or contract alone need be shown, and a breach of that, though without any direct proof of neglect, as carriers are by their duties, in law, insurers against all losses except by the king's enemies and the act of God. 3 Brod. & Bingh. 62, 63; 19 Wend. 239; Forward v. Pittard, 1 D. & E. 27; 1 Esp. Cas. 36; 2 Chit. R. 1; Ashmole v. Wainwright, 2 Adol. & Ell. N. S. 663. So it is well settled that these rules of law, and all others as to common carriers by land, apply to those by water, and to those boats rivers and vast lakes, where the safety of such | carrying freight, as this one did. 10 Johns. immense property and life depends chiefly on the due attention of the owners and agents of steamboats, and is, unfortunately, so often sacrificed by the want of it. To relax, also, when Congress has made such neglect, when followed by death, a crime, and punishable at least as manslaughter, would be unfaithfulness to the whole spirit of their legislation, and to the loudest demands of public policy. Their enactment on this subject is in these words (see statute before cited, sec. 12): "That every captain," etc., "by whose misconduct, negligence, or inattention to his or their re 1; 1 Wils. 281; 3 Esp. Cas. 127; 2 Wend. 327; 3 Story, 349. What, then, in principle, operates against a recovery? Some would seem to argue, that a proceeding ex delicto must be trespass, and that case is not one. But when it proceeds, as here, for consequential damages, and those caused by gross neglect, and not a mere breach of contract, it sounds ex delicto as much as trespass itself. 1 Chit. Pl. 142; 3 East, 593, 2 Saund. 47, b. *The misconduct complained of here [*429 a amounted to a tort, as much as if it had been | R. 448. Though the wrong done is not comcommitted with force. A tort means only a mitted by force or design, it is still treated as wrong, independent of or as contradistinguished ex delicto and a tort, if it was done either by a from a mere breach of contract. The evidence here, in my apprehension, shows both misfeasance and nonfeasance, and a consequential loss from them, which it is customary to consider as tortious. It was here, to be sure, not a trespass vi et armis, and perhaps not a conversion of the property so as to justify trover, though all the grounds for the last exist in substance, as the plaintiffs have lost their property by means of the conduct of the defendants, into whose possession it came, and who have not restored it on demand, nor shown any good justification for not doing it. It is altogether a mistake, as some seem to argue, that force and a direct injury are necessary to sustain proceedings in tort, either at law or in admiralty, for damages by common carriers. So little does the law regard, in some cases, the distinction between nonfeasance and misfeasance, in creating a tort and giving any peculiar form of action for it, that in some instances a nonfeasance is considered as becoming misfeasance; such as a master of a vessel leaving his register behind, or his compass, or anchor. 3 Peters, 235. And "torts of the nature," as in the present case, may be committed either by "nonfeasance, misfeasance, or malfeasance," and often without force. 4 D. & E. 484; 1 Chit. Pl. 151; Bouvier's Dict. Tort. And even where mala fides is necessary to sustain the proceeding, gross negligence is evidence of it. 4 Adol. & Ell. 876; 1 Howard, 71; 2 Spence's Eq. Jur. 425; Jones on Bailments, 8; Story on Bailments, secs. 19, 20. The action in such case is described as "upon tort," and arises ex delicto. 2 Kent's Com. 599. In most instances of gross negligence, misfeasance is involved (2 Cromp. & M. 360); as a delivery to a wrong person, or carrying to a wrong place, or carrying in a wrong mode, or leaving a carriage unwatched or unguarded. 2 Cromp. & M. 360; 8 Taunt. 144. Where case was brought for damage by overloading and sinking a boat, it was called an action "for a tort," and sustained, though the injury was wholly consequential. 1 Wils. 281. Again, it has been argued, that if direct force be not a necessary ingredient to recover in this form of action, it must in some degree rest on the contract which existed here with Harnden, and be restrained by its limitations. But the books are full of actions on the case where contracts existed, which were brought and which count entirely independent of any contract, they being founded on some public duty neglected, to the injury of another, or on some 430*] private wrong *or misfeasance, without reference to any promise or agreement broken. 12 East, 89; 4 Howard, 146; Chit. Pl. 156; Forward v. Pittard, 1 D. & E. 27; 2 N. Hamp. 291; 2 Kent's Com. 599; 3 East, 62; 6 Barn. & Cress. 268; 5 Burr. 2825; 6 Moore, 141; 9 Price, 408; 5 Barn. & Cress. secs. 504-508. Some of the cases cited of this character are precisely like this, being for losses by non-delivery of property by common carriers, and sued for as torts thus committed. 5 D. & E. 389. They go without and beyond the contract entirely. Nor is intent to do damage a necessary ingre clear neglect of duty, by an omission to provide safe and well furnished carriages or vessels, by carelessness in guarding against fires and other accidents, by omitting preparations and precautions enjoined expressly by law or by damages consequent on the negligent upsetting of carriages, or unsafe and unskillful navigation of vessels. See cases of negligent defects in carriages and vessels themselves, 2 Kent's Com. 597, 607; 6 Jurist, 4; The Rebecca, Ware, D. C. 188; 10 East, 555; 5 East, 428. Or in machinery, Camden and Amboy Railroad v. Burke, 13 Wend. 611, 627; 5 East, 428; 9 Bingh, 457. Even if the defect be latent, 3 Kent's Com. 205. See those of careless attention, The Rebecca, Ware, D. C. 188. See those of nonconformity to legal requisitions, as hose and engine here not in good order, Waring et al. v. Clarke, 5 Howard. See those consequent on negligent driving, 4 Barn. & Cress. 223; Bretherton v. Wood, 3 Brod. & Bingh. 54. If damage or loss happen by neglect or wrong of a servant of a common carrier, the principal is still liable. 13 Wend. 621; Story on Partnership, sec. 489; Dean et al. v. John Angus, Bee's Adm. 369, 239; Story on Bailments, sec. 464; 2 Browne, Civ. and Adm. Law, 136. This is necessary to prevent fraud; if such neglect be not evidence of fraud or misfeasance. The owner should be liable for employing those negligent. Story on Agency, sec. 318, and note. There is another important consideration connected with this view of the subject and relieving it entirely from several objections which exist to a proceeding founded wholly on a contract rather than a tort. It is this: Where the injury is caused by a tort or fraud, no question arises as to any special agreement or notice, as with Harnden here, not to assume any risk. In short, the agreement of that kind here, does not exonerate, if "malfeasance, misfeasance, or gross negligence" happens by owners or their servants. 13 Wend. 611; 19 Wend. 234, 251, 261; 5 Rawle, 179, 189; 2 Crompt. & M. 353; *2 Kent's Com. sec. 40; Brooke v. Pick- [*431 wick, 4 Bingh. 218; 3 Brod. Bingh. 183. Because the wrong is then a distinct cause of action from the breach of the contract, and the exception in it as to the risk was intended to reach any loss not happening through tortious wrong. "Even with notice, stage proprietors and carriers of goods would be liable for an injury or loss arising from the insufficiency of coaches, harness, or tackling, from the drunkenness, ignorance, or carelessness of drivers, from vicious and unmanageable horses, or when occasioned by overloading the coaches, as these would imply negligence or want of care." 3 Rawle, 184. It is further settled, in this class of cases, that the principle of not being liable for jewels, money, and other articles of great value, unless notice was given of it and larger freight paid in consequence of it, does not apply. 4 Bingh. 218; 5 Bingh. 223; 2 Crompt. & M. 353. Because here the liability is not that of an insurer against many accidents and many injuries by third persons of the property carried, and which it may be right to limit to such values as were known and acted upon in agreelect, renders them responsible for the whole consequential damages, however valuable the property thus injured or lost. 2 Barn. & Ald. 356; 8 Taunt. 144; 4 Binn. 31; 2 Adol. & Ell. N. S. 659; 5 Barn. & Ald. 341, 350; 16 East, 244, 245. dient to sustain either case or trespass. 2 Newling to carry. But it is for the wrong of the carrier himself, or his agents; their own mis- | 51, 60; 3 Mason, 242; 4 Mason, 385-388; 2 feasance or nonfeasance, and hence gross neg- Browne's Adm. 108; 2 Story, 188; 2 Sir Leoton, during her said voyage, that by reason of sel or the capital used in that business. such improper stowage, imperfect and insuffi- | *Dunlap, Adm. 31. And if the vessel [*435 cient engine, furnace, machinery, furniture, was lost, the remedy against the owners was rigging, and equipments, and of such careless, entirely lost in admiralty. Ware, D. C. 188. being established Some think the neglect in such case, so as to be liable for valuables, must amount to misfeasance. 2 Adol. & Ell. 659; 2 Myl. & Craig, 358. It must be "misfeasance or gross negligence." 2 Kent's Com. 607, note; 13 Price, 329; 12 B. Moore, 447; 5 Bingh. 223-225; 8 Mees. & Wels. 443. By a recent statute in England, under William IV., though the carrier has been exonerated from the liability and care of valuables, without notice, yet he cannot be if gross neglect happens. 2 Adol. & Ell. 646. All this being established at law, what is there to prevent this wrong from being deemed a tort, in connection with maritime matters or, in other words, "a marine tort"-and subject to be prosecuted in admiralty? I am not aware that a marine tort differs from any other tort in its nature or incidents, except that it must be committed, as this was, on the high seas. See cases cited in Waring et al. v. Clarke, 5 Howard. There it was held sufficient to constitute a marine tort and one actionable in admiralty, if the wrong was committed only on tide water. We have already suggested, also, as to the gist of the wrong, that gross neglect, the elements and definition of it, are the same on the water as on land, and consequential or direct 432*] damages *by a wrong are regarded in the same light on both. The actions of case, as well as trespass, at common law, in illustration of this, are numerous, as to torts on the water. See ante. Force, too, is no more necessary to constitute this kind of tort at sea than on land, or in admiralty than in a common law court. 3 Story, 349. That is the gist of this branch of the case. It is true, that most of the libels in admiralty | for torts are for such as were caused by force, like assaults and batteries (4) Rob. Adm. 75); or for collision between ships on the sea, to the injury of person or property (2 Browne's Civ. and Adm. Law, 110; Dunlap's Adm. 31; Moore, 89); or for wrongful captures (10 Wheat. 486; Bee's Adm. 369; 1 Gall. 315; 3 Cranch, 408); or for carrying off a person in invitum (Dunlap's Adm. 53); or for any "violent dispossession of property on the ocean." 1 Wheat. 257; L'Invincible, 1 Wheat. 238. And though, where trespass is brought at common law, or a tort is sued for in admiralty as "a marine trespass," there must usually have been force and an immediate injury (1) Chit. Pl. 128; 11 Mass. 137; 17 East, 246; 1 Pick. 66; 8 Wend. 274; 3 Mass. 293; 11 Wheat. 36, argu.; 4 Rob. Adm. 75), yet it need not be implied or proved in trespass on the case at law, or in a libel in admiralty for consequential damages to property. Such a libel lies as well for a tort to property as to the person, on the sea (2) Browne's Civ. and Adm. Law, 109, 202; Doug. 594, 613, note; 4 Rob. Adm. 73-76; Martin v. Ballard et al. Bee's Adm. 50, 239); and for consequential injury by a tort there, as well as direct injury. Sloop v. Cardolero, Bee's Adm. line Jenkins, 777. It was even doubted once, whether, for such torts at sea, any remedy existed elsewhere than in admiralty. 2 Browne's Civ. and Adm. Law, 112. Indeed, 1 Browne's Civ. and Adm. Law, 397, shows that, beside rights arising from contract, there were "obligations or rights arising to the injured party from the torts or wrongs done by another." And these were divided into those arising ex delicto and those quasi ex delicto; and the former included "damage" to property, as in this case. It meant injury to property by destroying, spoiling, or deteriorating it, and implied "faultiness or injustice," (401), but not necessarily force. Either trespass or case sometimes lies for a marine tort, even in the collision of vessels, where at times the only force is that of winds and tides, and the efforts of the master were to avoid, rather than commit, an injury. 1 Chit. Pl. 145; 2 Story, 188; 11 Price, 608; 3 Carr. & Payne, 554. Damages by insufficient equipments, ropes, etc., must be paid by the owners of the vessel to the merchant, *even by the Laws of Oleron, art. 10. [*433 Sea Laws, 136; Laws of Wisby, art. 49. And nothing is more consequential, or less with force, than that kind of injury. Finally, the principles applicable to the definition of the wrong or tort being here in favor of a recovery in admiralty, and there being no precedents in opposition, but some in support of it, the inference is strong, that this destruction of the property of the plaintiffs may well be regarded and prosecuted in admiralty as a marine tort. Though I admit there are no more cases in point abroad, in 1789, for sustaining a suit for a consequential injury by a carrier as a tort, than on the contract, in admiralty, yet the principles are most strongly in faver of relying on the tort, without any opposing decision, as there is to a libel on the contract. Besides this, other difficulties are avoided, and more ample justice attained, by the libel here for the tort, than by one for the contract. A moment to another objection that the libel in this case does not contain allegations in proper form to recover damages in admiralty, as if for a maritime tort. This libel is in several separate articles, rather than in a single count. In none of them is any contract specifically set out, though in one of them something is inferred to as "contracted." The libel avers that the respondents were common carriers; that a public duty thus devolved on them; that they received the property on board to transport it, and so negligently conducted, it was lost. The breach is described throughout, not of what had been "contracted" or promised, but as a wrong done, or tort, and specifies several misdoings. It is in these words: "Yet the respondents, their officers, servants, and agents, so carelessly and improperly stowed the said gold coin and silver coin, and the engine, furnace, machinery, furniture, rigging, and equipments of the said steamboat were so imperfect and insufficient, and the said respondents, their officers, servants, and agents, so carelessly, improperly, and negligently managed and conducted the said steamboat Lexingimproper, and negligent conduct, the said steamboat, together with the gold coin and silver coin to the libelants belonging, were destroyed by fire on the high seas, and wholly lost." Where contract and tort, in the forms of declaration at common law in actions of the case, are with difficulty discriminated, the general test adopted is, if specific breaches are as434*] signed, *sounding ex delicto, it is case on the tort. Jeremy on Carriers, 117. Here this is done. The same technical minuteness is not necessary in a libel as in a declaration at common law. 5 Rob. Adm. 322; Dunlap, Adm. 438, 439; Ware, D. C. 51. Only the essential facts need be alleged, without regard to particular forms, either in contract or tort. Hall's Prac. 207, 138; Dunlap, Adm. 427. And in the same libel between the same parties, unlike the rule at common law, it is held by some that both contract and tort may be joined, though it is proper to state them in separate articles in the libel, like separate Yet, it is a conclusive answer, that here, as well as abroad, the rule of the civil and common law is to give the whole loss. 2 Kent's Com. 606; 3 Kent's Com. 217. And that this rule of full damage in a libel in admiralty has been adopted here after much consideration. Livingston, Justice, in Paine, C. C. 118, says, that "it had long been regarded as a general principle of maritime law" to make the owners liable for a tort by the master, and that now the whole injury was the measure of damage, without reference to the value of the vessel and freight. See, also, Del Col v. Arnold, 3 Dall. 333; The Apollon, 9 Wheat. 376;3 Story's R. 347; 2 Story's R. 187. This is modified by some State laws, under certain circumstances. See The Rebecca and Phebe, Ware, D. C. 269. And in England, by 53 Geo. III. ch. 99. But even there the owner is still liable beyond the value of the vessel and freight, if the damage or neglect was "committed or ocсаsioned" with "the fault or privity of snch owner." See Statues at Large of that year; The counts. Semble in 2 Story's R. 349; Dunlap, | Rebecca and Phebe, Ware, D. C. 269; see for Adm. 89. And in some cases it is clearly better not to unite them. Ware, D. C. 427. Here if the libel is considered as but separate paragraphs of one article, it is a good one in tort. Dunlap, Adm. 114, 115; 4 Mason, C. C. 541. And if as separate article, one of them is valid in tort. The forms of libels for maritime torts include those which caused only consequential damages, as well as those which caused direct damages. Dunlap, Adm. 49; 3 Story's R. 349, one count seems to be for the wrong. There are cases of this kind merely for improper usage to passengers, by bad words, and neglect; but no force existed, or was alleged. 3 Mason, C. С. 242. Others are libels for seducing or carrying away a minor son of the plaintiff to his damage, like the actions on the case at common law. Plummer v. Webb, 4 Mason, C. C. 380. Yet they are called, as they are in law, "tortious abductions." this and other statutes, 2 Bro. Civ. and Adm. Law, 45, excusing owners if the pilot alone is in fault; see 6 Geo. IV. ch. 125, sec. 55; 1 Wm. Rob. 46; 1 Dod. Adm. 467. So the whole injury must be paid now on the contract, and the owners cannot escape by abandoning the vessel which did the wrong. 2 Bro. Civ. and Adm. Law, 206, note. On principle, also, this is the right rule in admiralty, clearly, where the owners themselves at home, and not the master abroad, made the contract, or where they were guilty of any neglect in properly furnishing the vessel, and not he. The Rebecca and Phebe, Ware, D. C. 269, 203–206. The principle of his binding them only to the extent of the property confided to him to act with, or administer on, does not apply to that state of facts (Abbott on Shipp. 93), but only to his doings abroad. The contracts made abroad are usually in his name, as well as by him, and not by the own So a libel lies for loss of goods "carelesslyers, and he only to sue or be sued. Abbott on and improperly stowed." Ware, D. C. 189. But, if the libel here was less formal in tort, the liberality practiced in admiralty pleadings, regarding the substance chiefly, as in the civil law, would allow here any necessary amendments. Dunlap, Adm. 283; 4 Mason, C. C. 543; 3 Wash. C. C. 484. Or would allow them in the court below, by reversing the judgment, and sending the case back with directions to permit them there. 4 Wheat. 64, 63; 4 Howard, 154; 1 Wheat. 264, 13; 9 Peters, 483. Shipp. pt. 2, ch. 2, sec. 5. In Waring et al. v. Clarke, which was a tort by the master at home, in a collision of two boats, the whole amount of the injury was awarded. See, also, 1 Howard, 23; 3 Kent's Com. 238. So principle, no less than precedent, requires it now, in admiralty as well as common law, when the master is usually not a part owner, but a mere agent of the owners, and doing damage, as here, by unskillfulness or neglect, and not by *willful miscon- [*436 duct. Ware, D. C. 208; 1 East, 106. For this, surely, those should suffer who selected him respondent superiori. 1 East, 106; Abbott on Ship. pt. 2, ch. 2, sec. 9; 2 Kent's Com. 218. The amount of damages which can be awarded in admiralty, in a case like this, has been agitated by some of the court, but was not argued at the bar. It is not without difficulty, but can in a minute or two be set right. By the ancient practice in admiralty, in case of contracts of freight made by the master, it is true that the owners were liable, whether ex contractu or ex delicto, and whether in personam or in rem, for only the value of the ves-the contract, doubts exist whether a recovery It is a mistake, likewise, to suppose, as some have, that the rule of damage is thus higher in admiralty than at common law, or when counting on the tort rather than contract. The only difference is, that in admiralty, if counting on |