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deliver the goods for the consignor, and in the consignor's name, to the consignee, but the consignee had no property in the goods at the time of shipment, it has been decided that an action against the ship-owners for damage done to the goods must be brought in the name of the consignor; although the consignee had insured the goods and advanced the premiums of insurance before the arrival of the goods. (a) This distinction was taken in the case of Evans v. Marlett. (b) If goods by bill of lading are consigned to A., A. is the owner, and must bring the action against the master of the ship if they be lost. But if the bill of lading be special, to deliver to A. for the use of B., B. ought to bring the action. In other words, the right of action follows the right of property.

(2) Sargent v. Morris, 3 Barn, and Ald. 277.

(0) i Lord Raym. 271.




common law

In the former Chapter we have considered the positive and implied covenants of the charter-party and bill of lading. The subject of the present Chapter will be the exceptions which are expressed or implied with respect to the performance of those covenants : the extent in which they are to be interpreted; and the circumstances which either limit or discharge them altogether. The former Chapter explained the liabilities and duties of the masters and owners under the charter-party;—the present, treats of the circumstances which excuse the masters and owners

for a nonperformance of the contract upon their parts. Limit to the

I. It has been before stated, that common carriers, and shipliability of

owners, as such, are liable for all accidents and losses, not pro946.co.2.c. 13, ceeding from the “act of God or the King's enemies.” Under

the ordinary relation of an agent or servant for hire, a carrier would be liable in all cases of negligence; whether such negligence were immediate, and therein the next and proximate cause of the damage ; or whether it were remote, and therein only the cause of that by which the damage was occasioned. But as carriers are necessarily trusted by the owners with the dominion and custody of their property, and as great opportunities would be thus afforded for frauds under the pretext of accidents, the law, for the sake of public security, has deemed it necessary to regard carriers as placed in the additional relation of insurers; and, under that character, to extend their responsibility to all accidents and losses whatever, excepting only such as arise from the act of God and the King's enemies. Under this obligation, therefore, carriers are, by common law, liable for fire, theft, and all other accidents, whether of fault or of mere calamity; the

and stat. 26 Geo. 3. c. 86.


question not being whether the damage was occasioned by their of the limita

tion of the shipfault; but whether it be not one of that description for which owners' rethe law, and, therefore, the contract made under it, have rendered sponsibility, by

act of parliathem liable.

II. By the wisdom, as well as the humanity, of the Legislature, ship-owners have been relieved from this common law liability in several instances. The Legislature, in thus limiting their responşibility, has proceeded upon the same policy which dictated the navigation acts; commercial convenience and public good; to encourage the vesting of property in shipping, by restricting the responsibility of ship-owners to the amount of their capital embarked; and to assimilate the law of England to that which had long been the law of other commercial countries ; namely, that the owners, when not personally in fault, should be discharged from responsibility for damage occasioned by the master or crew, on relinquishing the ship and freight.

III. The first exception in favour of ship-owners, and in dimi. Limitation of nution of their common law liability, was given by 7 Geo. 2. ers' responsi

the ship-ownc. 15. This statute was passed at the earnest solicitation of the bility by 7.

Gec. 2. c. 15. ship-owners and merchants of London), who had taken alarm at some recent decisions in the courts, that ship owners were answerable for the entire and absolute value of the merchandize em. bezzled by the crew, or master. In order to remove this alarm, and to prevent any discouragement to the embarking of capital in shipping and navigation, the act in question was passed. By this statute the responsibility of owners for any goods “embezzled or made away with" by the master or mariners, or for any malversation whatever of master or mariners, is limited to the value of ship and freight, as being the natural and peculiar fund of the ship-owner, out of which reparation ought to be made. But the master or mariners themselves, in any case of misfeasance affecting them, continue liable, as before the act, for the whole amount of the damage suffered; the statute extending to the relief of the owners alone, and being passed for their relief only, in the case of goods embezzled or made away with by their servants. The next act, in like diminution of the liability of owners, is the 26 Geo. 3. c. 86. IV. By the first section of 26 Geo. 3., no person who is owner

Limitation of

the responsibiof any ship or vessel shall be liable to answer, or make good, any lity of shiploss or damage, by reason of any robbery, embezzlement, secret- Geo. 3. in cages ing, or making away with, of any gold, silver, &c., or other of robberies

not by the goods and merchandise, which shall be shipped on board any ship crew. or vessel, or for any act, forfeiture, or damage, done or incurred,

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without the knowledge of such owner, further than the value of the ship, &c., and freight due, and to grow due for the voyage, wherein such robbery, embezzlement, &c. shall be made, although the master or mariners shall not be concerned in, or privy to, such

robbery, embezzlement, &c. (a) Not answerable It is further enacted, in the same statute, “ that no owner or for loss by fire.

owners of any ship or vessel shall be subject, or liable to answer for, or make good, to any one or more person or persons, any loss or damage, which may happen to any goods or merchandize whatsoever, which, from and after the first day of September, 4786, shall be shipped, taken in, or put on board, any such ship or vessel, by reason or means of any fire happening to, or on board, the said ship or vessel.”

.V. Another section of the same act relieves the master and mon law liability limited by ship-owners from a liability to make good any loss of gold, silver, case of the loss jewellery, money, diamonds, and watches, of which the shippers of gold, silver, shall not have declared the value at the time of shipping. “No &c.

master, owner, er owners, of any ship or vessel, shall be subject, or liable to answer for, or make good, to any one or more person or persons, any loss or damage which may happen to any gold, silver, diamonds, watches, jewels, or precious stones, which from and after the passing of this act shall be shipped, taken in, or put on board any such ship or vessel, by reason or means of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof shall, at the time of shipping the same, insert in his bill of lading, or otherwise declare, in writing to the master, owner, or owners, of such ship or vessel

, the true nature, quality, and value, of such gold, silver, diamonds, watches, jewels, or precious stones.”

VI. Another section of this statute likewise enacts, that if the several freighters or proprietors of any gold, silver, &c., or of any other goods or merchandise, should suffer loss or damage by any. of the means aforesaid, in the same voyage, (fire only excepted) and the value of the ship or vessel, with the appurtenances, and the amount of her freight, should not be sufficient to make full compensation “ to all and every of them,” then such freighters or proprietors shall receive their satisfaction in average, and in proportion to their respective losses. And in order to effect this purpose, a remedy is pointed out to freighters and owners, by

(a) This clause, and indeed the act Geo. 2. c. 15. did not comprehend altogether, was passed, in consequence robberies not by the crew. See Abof the decision of K. B. in Sutton v. bott, p. 266. Mitchell, 1 T. R. p. 18., that the 7

filing a bill in equity, to which an affidavit must be annexed. It is further provided, that nothing in this act shall discharge the common law remedy against masters and mariners, for “ embezzlement, fraud, abuse, or malversation in such masters and mariners respectively.”

VII. The pilotage act (a) contains a further exception to the Masters and liability of ship-owners, by relieving them from responsibility for


not liable for any loss or damage occasioned by the neglect or incapacity of any loss by incapapilot, who may be taken on board in pursuance of the provisions city of pilots. of that act.

VIII. The last act diminishing the liability of ship-owners is the 53 Geo. 3. c. 159. This statute was passed to amend the 7 Geo. 2. c. 15., and the 26 Geo. 3. c. 86.; and to give a further relief to. owners, in certain cases, and more especially, for the acts of their servants. The several provisions of this statute enact, in substance, 1. That owners and part-owners of ships shall not be liable to make Protection of good any loss or damage to any goods or merchandize laden on board owners and

part-owners by their ships, beyond the value of the vessel and freight, provided 53Geo. 3.c.159. such damage should be occasioned without their fault or privity. The intent of this first clause was to give a protection to partowners as well as to owners. The term part-owners is omitted in the preceding statutes, and introduced, for the first time, in the present; and it seems to have been the object of the Legislature, by the first clause, to explain the words “owner or owners, ” used in the two previous acts, and to give a protection to partowners, which might not, perhaps, have been extended to them ander the general words, owner or owners, in the 7 Geo. 2. and 26 Geo. 3. 2. By the next section there is a legislative exposi- Exposition of tion of what is to be considered as freight, which the previous statutes had left in general terms. The value of the carriage of goods and merchandize, though belonging to owners and partowners, is to be considered within the meaning of the term freight; and also the hire of the vessel due, or to grow due, by virtue of any contract, whether on behalf of his Majesty, or of any person or persons, or any body politic or corporate. 3. The act then provides for separate losses : but declares that nothing therein contained shall be taken to diminish the responsibility to which any master or mariner may now by law be liable, notwithstanding such master or mariner may be an owner or part-owner, 4. The act next proceeds to except the owners of lighters, barges, boats, &c. employed in inland navigation, and ships and vessels

this act.

(a) 52 Geo. 3. c. 39. See ante, Part II. chapter vi, on Pilots.

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