1804.

BLOXAM

and Others

amounting to lefs than the whole interest in such fhip or veffel, And as fuch provifions have not been pursued in respect to the affignment of this fhip made on the 9th of November 1801, when against it is stated to have been at fea, we think that no interest therein HUBBARD has paffed to the defendant by his purchase and registration de nove stated in the cafe; and that confequently the plaintiffs are entitled to retain the benefit of the verdict found for them to the extent of 1744/. 155. and costs, being three-fourth parts of the fum of 23261. 65. 8d. mentioned in the cafe as the damages found for the whole fhip; and the verdict being. thus altered, we direct that judgment be entered for the plaintiffs accord ingly. Poftea to the plaintiffs.

[428]

Tuesday,

June 19th.

A carrier by

water con

tracting to carry goods for hire impliedly promifes that the

THIS

LYON and Another against MELLS.

HIS was an action of affumpfit, brought to recover the amount of damage done to a quantity of yarn of the plaintiffs, delivered on board a lighter of the defendant's, to be carried therein from a quay at Hull to a floop of one William Barton lying in a dock there, and to be delivered on board the same, for a reasonable reward to be paid to the defendant. The declaration ftated (amongst others) a promife by the defendant that the lighter was tight nnd capable of carrying the yarn; also a promise by him that the lighter was so far as he knew a proper and subftantial veffel fit for carrying the yarn without damage; and alfo a promife by him to flow, load, and carry the yarn carefully, and with due attention to the fame. Plea non affumpfit. On the trial before Thompson, B. at the laft York affizes, a verdict was found for the plaintiffs, subject to the opinion of this Court on the following case:

veffel fhall be tight and fit for the purpofe, and is anfwerable for damage arifing from leakage. And this, tho' he had given notice "that he would not be answerable for any da. mage unless occafioned by want of ordinary care in the mafter or crew of the veffel, in which cafe he would pay 10l. per cent. upon fuch damage, fo as the whole did not exceed the value of the veffel and freight." For a lofs happening by the perfonal default of the carrier himself (fuch as the not providing a fufficient veffel) is not within the fcope of fuch notice, which was meant to exempt the carrier from loffes by accident or chance, &c.; even if it were competent to a common carrier to exempt himself by a special acceptance from the refponfibility caft upon him by the common law for a reasonable reward to make good all loffes not arifing from the act of God, or the king's enemies.

On the toth of June 1802 feveral bales of yarn belonging to the plaintiffs were delivered on board the lighter, of which the

defendant

1804.

LYON

against MELLS.

defendant was the owner, in manner, and for the purpose above mentioned. The defendant kept floops for carrying other perfons' goods for hire, and alfo lighters for the purpose of carrying thefe goods to and from his floops; and when he had not employment for his lighters for his own bufinefs, he let them for hire to fuch perfons as wanted to carry goods to other floops. Previous to the delivery the mafter of the defendant's lighter, when he was applied to fetch the yarn, undertook to [ 429 ] bring it in the lighter to the floop; and being asked if the lighter were fit to carry it, faid it was very fit and tight, and that he had been down the day before with hemp and flax in her to fome of their veffels at South End. In carrying the yarn in the lighter to the floop the lighter leaked, and fome of the bales of yarn were thereby wetted and damaged; and on the arrival of the lighter at the floop the mafter of the lighter, on its being mentioned to him that he had got water in his boat, faid, there was a bit of a weep (meaning a leak) abaft. Three or four of the bales of yarn were ftowed upon the top of the pump, by which it was rendered entirely useless until they were removed. Before the second bail of yarn could be hoifted into the loop the lighter was going down, and would have funk to the bottom of the dock with the reft of the bales, but was prevented by getting tackle fixed to her to get her up. The damage thereby done to the yarn amounted to 274/. 16s. 4d. The lighter was not tight and fufficient for the carriage of the yarn, but was leaky: and the master of the lighter was guilty of negligence in not ftowing the yarn properly. Previous to the fhipping of the yarn on board the lighter the defendant published the following notice, of which the person who fo fhipped the yarn on behalf of the plaintiffs had notice, he himself being one of the perfons who figned the fame. "Navigation of the River Humber and of the "rivers falling into the fame. To all merchants, tradesmen, "and others. We whose names are hereunto fubfcribed (by "ourselves or by our refpective agents) do hereby feverally give

notice, that we will not be anfwerable for any lofs or damage "which fhall happen to any cargo which fhall be put on board "any of our veffels, unless such lofs or damage fhall happen or [430] "be occafioned by want of ordinary care and diligence in the

mafter or crew of the veffel; when and in fuch cafe we will "pay to the fufferers 10l. per centum upon fuch loss or damage, fo as the whole amount of fuch payment shall not ex

Y 4

"ceed

1804.

LYON against MELLS.

"ceed the value of the veffel on board whereof fuch lofs or da "mage fhall have happened, and the freight of such veffel. "And we do hereby give this further notice, that any merchant "or other perfon defirous of having their goods or merchan"dize carried free of any risk in respect of loss or damage, whe"ther the fame shall happen from the act of God or otherwife, "may have the fame fo carried by entering into an agreement "for the payment of an extra freight, proportionable to the ac"cepted refponsibility, on application to us or our respective " agents. Hull, Oftober 1, 1809." This notice was figned by the defendant and by 49 other owners of veffels at Hull. The queftion for the opinion of the Court was, Whether the plaintiffs were entitled to more than 10l. per cent, upon the above damages? If they were fo entitled, the verdict was to be entered for the plaintiffs for the above sum of 274l. 16s. 4d.; if they were not fo entitled, then the verdict was to be entered for the plaintiffs for the amount of 10l. per cent. upon the damages.

Holroyd for the plaintiff, after premifing that the whole facts of the cafe, and even the terms of the notice, shewed that the defendant was a common carrier, contended that in that character he was anfwerable by law for every lofs except by the act of God or the king's enemies, and that he could not discharge himself from fuch refponfibility by any notice. Befides which every mafter is liable for the actual negligence or misconduct of [431] his fervant acting within the scope of his employment, of which liability he cannot by any general notice diveft himself. The common law attaches upon carriers by water as well as by land from one part of the kingdom to another, and their general refponfibility is founded on public policy which it is the object of the notice in question to contravene. In Kirkman v. Shawcross (a), Lord Kynon confidered that innkeepers and common carriers could not get rid of their legal responsibility, the one for the safe cuftody of the goods of their guefts, the other for fafe carriage, though the latter might ftipulate for a special reward adequate to the risk. That opinion was approved in Oppenheim v. Russel (b). And the diftinction was more exprefsly taken by Lord Kenyon in Hide v. The Proprietors of the Trent and Mersey Navi gation (c), between where a man is chargeable by law generally, as in the case of a common carrier, and where on his own con

(a) 6 Term Rep. 17.
(c) 1 Ep. N. P. Caf. 36.

(b) 3 Bof. & Pull. 42.

tract:

tract: in the former he is liable for all loffes, except those
arifing from the act of God or of the king's enemies, and can-
not, fays his Lordship, discharge himself from them by any act
of his own, as by giving notice to that effect. So faid Lord
Holt in Lane v. Sir R. Cotton (a), though erroneously applied to
the cafe of a poftmaster. There is no need of a contract, for
the law makes him anfwerable. He has a reward; which is
the reason in the case of innkeepers, hoymen, &c. who are bound
to keep fafely and answer all neglects of thofe who act under
them, though they fhould expressly caution against it. Now here
the notice is not that the carrier will not be liable without a cer
tain adequate price for his risk, which would admit of a differ-
ent confideration, but that he will not be liable at all where the
lofs does not happen from want of care of the mafter and crew,
nor even then for above so much per cent. But no person can
exempt himself from a common law obligation, without at least
some confideration moving to the perfon to whom he is liable;
fuch, perhaps, as his agreeing to carry for lefs than the ufual
reasonable price, (as is the common cafe where parcels are of
less than 5%. value, or paid for accordingly ;) otherwise it is nu-
dum pactum. If indeed a carrier charge more than reasonable
rates he may be indicted for extortion. Here there is no con-
fideration for the exception; and therefore the common law
liability attaches upon a carrier for loffes by the want of care of
those whom he employs in his bufinefs, which is the fame as
his own.
For qui facit per alium facit per fe. And this lia-
bility fometimes extends to charge him even criminally. As
where a bricklayer's fervant leaves the rubbish of his work in
the street, the master is indictable for the nufance. Or where
a bookfeller or printer's fervant fells a libel in his shop, that
will charge the master for the libel. In all cafes where a per-
fon engages to do a thing for a reward the law implies an en-
gagement to do it with reasonable care and diligence; and it is
contradictory to the very nature of the engagement and the
policy of the law to introduce fuch an exception as in this case.
At all events however the lofs in this cafe is out of the terms
of the notice; for it did not happen from the want of care of
the master or crew, but from the personal default of the carrier
himself in not having provided a fufficient veffel, which it was

(a) 1 Salk. 18. 12 Mod. 481-3. S. C.

1804.

LYON against MELLS.

[432]

his

1804.

his duty to have done: and there is no ftipulation against his own perfonal wrong. And he referred to Ellis v. Turner (a), where a fimilar notice was given, and yet the owner of the vaffel was holden liable for the whole lofs upon the special un[433] dertaking of the master.

LYON against MELLS.

[ 434 ]

Gafelee, for the defendant, faid, that he was reftrained by the order of nifi prius from difputing that the defendant was liable to the extent of 10 per cent. otherwife he should have contended that he was not liable at all. He admitted that in the abfence of any exprefs contract the law implies a contract that the carrier fhall be liable for all loffes, except fuch as arise from the act of God or the king's enemies; but insisted that he might make a fpecial acceptance, on which only he would then be liable. For expreffum facit ceffare tacitum, and the law never raises an implied contract against an exprefs one; as in Touffaint v. Martinnant (b). The dictum of Lord Holt in Lane v. Cotton may indeed be opposed to this, but that stands unsupported, and is contrary to the principle of the modern decifions establishing the special acceptance of carriers in certain cafes, as well as of fome more ancient authorities. Kenrig v. Eggleston (c); Tyly v. Morrice (d); Titchburne v. White (e); Gibbon v. Payn、 ton (f); Clay v. Willan (g); Yate v. Willan (b); and Izett v. Mountain (i). The dictum of Lord Kenyon in Hide v. The Trent and Merfey Navigation (k) does not go the length of faying that a common carrier cannot accept goods upon a fpecial contract, but only that he cannot discharge himself by his own act, as by giving general notice. And it is no anfwer to the 51. cafes to say, that they proceeded on an undertaking of the owner, express or implied, that the parcel was not worth more than 5%.; for it is now fettled that he shall not recover even the 51. in case of such a special acceptance, if the parcel be of greater value. Taking the whole of the notice together, it appears that so far from the carrier declining the responsibility of the law, he was even willing to take more onus upon him, and

(a) & Term Rep. 531.
(d) Carth. 485.

(f) 4 Burr. 2298.

(b) 2 Eaft, 128.

(i) 4 Eaft, 371.

The account of the cafe of Smith v. Shepherd,

Abbott's Law of Merchant Shipping, 232, was alfa referred to.

(k) 1 Efp. N. P. Caf. 36.

indemnify