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1804.

LYON against MELLS

indemnify the owner against even the acts of God and the king's
enemies for a proportionable reward. Then it must be inferred
that the special risks, for which only the carrier contracted in the
first part of the notice, were for less than a reasonable reward;
and if so, there would be a sufficient confideration to the plain-
tiff for the defendant narrowing his common law liability. As
to this not being a case within the terms of ihe notice, because
it is the owner's duty to provide a proper veffel; that does not
follow; because the want of repair may be as much the default
of the master as of the owner. Besides the notice is that the
owner will not be liable for any loss unless occasioned by the
want of ordinary care in the master or crew, which excludes
every other cause of loss. Then it was not competent to the
servant beyond the declared scope of his authority, as limited
by the notice, to bind the owner of the vessel by a promise
which went to warrant the security of the vessel at all events;
however the owner himself might have bound himself by such
a promise; and therefore this is not like Ellis v. Turner, where
the special promise of the master was collateral to the notice,
namely, to deliver the goods at a particular place in the course
of the navigation. [Lord Ellenborough C. J. Is it not within
the scope of the servant's general authority to declare in what
condition the vessel is, which may be the plaintiff's induce-
ment to put his goods on board it ?} If the servant make a
fraudulent representation he himself would be liable, and might
perhaps, in some cases, bind his employer for whose benefit he
was acting, but the remedy would be in another form of action.
[Lawrence J. If the servant have authority to represent the
vefsel in good condition, why may not that be the foundation
of an assumpsit as well as is the master himself had so repre.
sented it?] It would be so if he had a general authority, ac-
cording to Seignior v. Wolmer (a); but here was only a special
authority to contract within the terms of the notice, and there
fore an execution of it under a different modification will not
biod the principal, as in Fenn v. Harrison (6). If then the
plaintiff must be bound by the notice, this action is miscon.
ceived; because the defendant did not contract as a common
carrier, but specially with the restriction contained in the nam

(a) Godb. 360.
(6) 3 Term Rep, 757. Sed vi. S. C. 4 Term Rep. 177.

[ 435 )

tice;

1804. tice ; and if he were bound to have accepted the goods in his

general character, he having refused to do so, the plaintiff's reLyon againsi

medy should have been by an action on the case against him MELLS.

for such refusal.

Helroyd, in reply, noticed the statutes 7 Geo. 2.6. 15. and 26 Geo. 3. c. 86. which particularly exempted the owners of ships from loffes of gold, silver, and jewels, put on board without their privity, beyond the value of ship and freight, and that on certain conditions: which thews that they were before considered as liable. And said that the 5l. cases certainly went on the ground of want of adequate confideration for the risk: and it was a sufficient reason why the carrier was not liable even to

that amount, because if he had had notice that the value of the [ 436 ) goods was more, he might have taken additional precautions

against the loss. That as to the form of the action, it was settled in Dale v. Hall(a) that it made no difference whether it were in assumpsit or on the custom of the realm ; for that by stating that the defendant carried for hire, it shewed that he was a common carrier, and that was a foundation for the affumpfit,

Cur. adv. vult. Lord ELLENBOROUGH C. J. delivered judgment. The general question submitted to our determination by the special case stated at nisi prius is, whether the plaintiffs be entitled to more than 10l. per cent., upon the sum of 2741. 165. 4d. the damages stated to have been sustained by the plaintiffs in con. sequence of the injury done to their yarn while on board the defendant's lighter. That they are entitled to recover to the extent of 10l. per cent. is admitted by the terms of the question. On the part of the plaintiffs it has been argued, either that the notice given by the defendant, as set forth in the case, is illegal, being to exempt him from a responsibility cast on him by law as a carrier of goods by water for hire; or if that propofition be not maintainable, that in fact the present case does not fall within the terms and meaning of that notice. At the close of the argument the Court intimated an opinion that in the determination of this caie it might perhaps not be necessary to enter into a consideration of the general question, as to the validity of these notices in point of law, and to what extent and

(a) : Wilf. 2812

upon

upon what principles they may be supportable. And on further

18-4. consideration we are all of opinion, that in the present case, ad

Lyon mitting the notice given by the defendant * and the other owners

againf of vessels to be valid as an agreement between them and the Mells. shippers of goods, the circumstances stated do not bring the *[ 437 ] plaintiff's loss within such agreement. In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vefsel ready to carry goods for hire, and the person putting goods on board or employing his vetfel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by lazu, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public: it is the very foundation and immediate substratum of the contract that it is so: the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of found policy and public convenience requires it should be so. The declaration here states such promise to have been made by the defendant; and it is proved by proving the nature of his employment; or, in other words, the law in such case without proof implies it. The declaration avers a breach that the lighter was not tight and capable of carrying the yarn safely; and the facts statid support the breach so alleged, by shewing that the vessel was leaky and had nearly funk in the dock before the yarn could be unloaded from the lighter into the floop. This we · consider as personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do, viz. to provide a fit vessel for the purpose. This brings me to consider the terms of the notice: “ We will not be answerable “ for any loss or damage which shall happen to any cargo “ which shall be put on board any of our vessels, unless such “ loss or damage shall happen or be occafioned by want of or« dinary care and diligence in the master or crew of the vessel, [ 438 ] “ in which case we will pay iol. per cent. upon such loss or “ damage, so as the whole amount of such payment shall not “ exceed the value of the vessel and the freight.” I have before stated our opinion to be that this is clearly a neglect or breach of performance in the owner of the vessel, and not a neglect in the master or crew; it does not therefore come within the exception of such loss or damage as is to be compensated by 101. per cent. But the notice states that " they will not be an

swerable

1 804. swerable for any other loss or damage;" and therefore this must

be contended to be within that other loss or damage for which LYON against

they will not be answerable ; a proposition however which Mells. seems to have struck the counsel for the defendant as not ca

pable of being supported; for I take him to have admitted in his argument that if the defendant had himself made the promise ftated in the declaration he would have been liable; and he could not contend otherwise : for it is impossible without outraging common sense so to construe this notice as to make the owners of vesels say, We will be answerable to the extent of 10 per cent. for any loss occasioned by the want of care of the master or crew, but we will not be answerable at all for

any

lors occasioned by our own misconduct, be it ever so gross and injurious; for this would in effect be saying, We will be at liberty. to receive your goods on board a vessel, however leaky, however unfit and incapable of carrying them; we will not be bound even to provide a crew equal to the navigation of her; and if through these defaults on our part she be lost, we will pay nothing. Nay more, your compensation in case of misconduct of the master or crew can never exceed the value

of the vessel and her freight; and therefore by providing a Ľ 439 ) rotten and leaky veffel of little value, we lefsen our own

responsibility pro tanto even in the only event in which we are to be at all responsible. Ridiculous as this supposed state of the agreement must appear, yet these and more absurd ftipulalations must be introduced into it if we give it a construction which shall bring this case within it. Indeed that this is the true construction will further appear from the part of the notice Tefpe&ing additional freight; for it is addressed to those who are desirous of having their goods carried free of risk “ from the act of God or otherwise;" words importing that the thing for which an increased freight is to be paid, is that which is properly the object of risk,, and of course may or may not happen to the goods, i. e. that which may arise from accident and des pends on chance, and not that which is certain and must inevitably be the consequence of a defect in that which the carrier has engaged to provide. Every agreement must be construed with reference to the subject matter; and looking at the parties to this agreement (for so I denominate the notice), and the liruation in which they stood in point of law to each other, it is clear beyond a doubt that the only object of the owners of

lighters

1804.

lighters was to limit their responsibility in those cases only where the law would otherwise have made them answer for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to provide against. For these reasons, we are of opinion that the plaintiffs are entitled to have their verdict entered for the full sum of 2741. 165. 4d. and that the postea be delivered to them for that purp.se.

Postea to the plaintiff.

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[440]

Wednesday, WIGLEY against Jones, Marshal of the Marshalsea. June żcth. IN N an aélion against the marshal of B. R. for an escape the In an action declaration stated that one Mary Bergoret de Frouville was

against the

marshal for indebted to the plaintiff in 3.16. gs. for goods sold and delivered, an escape, it for the recovery of which the plaintiff in Trinity term 41 Geo being alleged 3. sued out of B. R. a bill of Middlesex to arreft her, founded in the decla.

ration that on an affidavit of debt for 341. gs. filed of record in B. R., and the prifoner which precept was indorsed for bail for the said fum. By vir- was arretted tue of which said precept the faid M. B. de F. on the 2;d of on meine pro

coss and September, &c. was arrested by the sheriff of Middlesex, and de

brought be. tained in custody for want of bail; and being in such custody fore a Judge for the cause aforesaid, on the 24th of the fame September me at chambers

by virtue of a was brought before Sir S. Le Blanc, one of the Justices of B. R.

writ of balcas at his chambers, &c. in the custody of the said sheriff by virtue corpus, and of a writ of habeas corpus issued out of B. R. and directed to the was by him sheriff, &c. and the said M. B. de F. was thereupon committed

thereupon

committed to • by the faid Judge to the custody of the marsal of the Mar- the custody

Thalfea, &c. at the suit of the plaintiff in the plea aforesaid, and of the marfor the cause aforesaid, there to remain until, &c. as by the re

Tal as by the

record thereof cord thereof now remaining in the court of our faid lord the king

now remaining before the king himself manifeflly appears, by which commitment in the Court of the defendant, then marshal, &c. took the faid M. B. de F. B. R. apinto his custody, &c. in the King's Bench prison. The decla- pears, &c. ration then alleged the subsequent tscape of the prisoner, while tión is either

impertinent and surplusage; for, properly speaking, such documents are not records nor capable of becoming fo: or, conlidering them as quafi of record, the allegation is fufiiciently proved by the production of them from the office of the clerk of the papers of the K. B. prison, with whom they are properly deposited.

the

fuch allega

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