— The first object that naturally presents itself, is to ascertain, whether the injury complained of was the consequence of gross negligence, or of mere accident ? This falls, exclusively, within the province of the jury ; but if they shall think, that the injury was the consequence of gross negligence, then the plaintiff is entitled to recover damages; unless some rule of law interposes to prevent it, under the peculiar circumstances of the present case.

In considering the point of law, we are led into a field of inquiry equally interesting for its novelty and its importance ; for although the defendant admits, that in ordinary cases, the owner of a ship is answerable, civiliter, for the injuries committed in the course of his service, by the master and crew ; it is insisted, that a pilot, under the regulations of our act of assembly, for his examination and appointment, is not to be regarded as the agent or servant of the owner, but rather as the officer of the public.

. Though it is not agreeable to deliver opinions on important points of law, s iddenly started in the course of a trial, I think, I can safely pronounce, *179on the pi «sent occasion, that the distinction which has been taken, is rather plausible than solid. The legislative regulations were not intended to alter or obliterate the principles of law by which the owner of a vessel was previously responsible for the conduct of the pilot; but to secure, in favor of every person (strangers as well as residents) trading to our port, a class of experienced, skilful and honest mariners, to navigate their vessels safe up the bay and river Delaware. The mere right of choice, indeed, is one, but not the only reason, why the law, in general, makes the master liable for the acts of his servant: and in many cases, where the responsibility is allowed to exist, the servant may not, in fact, be the choice of the master. For instance, if the master of a merchant vessel dies on the voyage, the mate becomes master; and the owner is liable for his acts, though the owner did not hire him, originally, nor expressly choose him to succeed the master. The reason is plain : he is in the actual service of the owner, placed there, as it were, by the act of God. And so, in the case under consideration, the pilot was in the actual service of the owner of the ship, though placed in that service by the provident act of the legislature. The general rule of law, then, entitles the plaintiff to recover ; and we have heard of no authority, we can recollect none, that distinguishes the case of a pilot, from those numerous cases, on which the general rule is founded. (a)

As to the assessment of damages: it is a rational, and a legal principle, that the compensation should be equivalent to the injury. There may bo some occasional departures from this principle; *but I think it be found safest to adhere to it, in all cases proper for a legal inde fieation, in the shape of damages. will [*208

— I perfectly concur in the opinion expressed by the Chief Justice, upon the responsibility of the owner of a ship. But I confess, that I am not prepared to accede to his opinion, on the assessment of damages. I take this distinction. In a case of contract; or in a case of damage by gross negligence; the jury should always, I think, give a compensation to the full amount of the injury actually sustained. But if an injury is *180done, in a way merely fortuitous and accidental, I think, the jury have a legal and salutary discretion upon the subject.

Verdict in favor of the plaintiff for $2500. (a)