"the responsibility of the owners, in those cases only "where the law would otherwise have made them an "swer for the neglect of others, and for accidents, which "it might not be within the scope of ordinary care and ❝ caution to provide against (e).” (1).

(e) Lyon & another v. Mells, 5 East. 428.

(1) The validity of a notice of this nature in point of law, was not decided in this case. But in a subsequent case, in which the validity of a notice by a common carrier, that “ he "would not be accountable for goods of more than £5 value,

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(if lost) unless insured and paid for at the time of delivery, " and demanded in one month after such damage had been "sustained," was questioned as contrary to the policy of the common law, which has made common carriers responsible for all losses, except those occasioned "by the act of God, and "the King's enemies," the Court in giving judgment declared that, considering the length of time during which, and the extent and universality in which the practice of making such special acceptances of goods for carriage by land and by water, had prevailed in the kingdom under the observation and with the allowance of courts of justice, and with the sanction also, and countenance of the legislature, which is known to have rejected a bill brought in for the purpose of narrowing the responsibility of carriers in certain cases, on the ground that carriers might limit their responsibility by special contract; and considering that there is no case to be met with in the books, in which the right of a carrier thus to limit his responsibility,.. has ever been by express decision denied, they could not do otherwise than sustain such right in the present instance, however liable to abuse and productive of inconvenience it might be; leaving to the legislature to remedy the evil when it should be required. Nicholson v. Willan, 5 East. Rep. 507.

And not only must the ship and her furniture be sufficient for the voyage, but she must also be furnished

with an adequate number of

and ability to navigate her.

persons of competent skill And, for sailing

down rivers, out of harbours, or through roads, [226] &c. where, either by usage, or the laws of the country, a pilot is required, a pilot must be taken on board (ƒ). (1)

3. The manner of taking goods on board, and the commencement of the master's duty in this respect, depend on the custom of the particular place. More or less is to be done by wharfingers or lightermen according to the usage. If the master receive goods at the quay or beach, or send his boat for them, his responsi

(f) Emerigon, tom. 1. p. 375. Molloy, book 2. ch. 2. sect. 7. Roccus, Not. 59. 62. French Ordinance, Liv. 2. Tit. 1. Du Capitaine. art. 8. Ordin. of Wisbuy, art. 59. 60.

Where a common carrier gives notice to his customers, that he will not be accountable for any parcel of more than £ 5 value, unless entered as such, and paid for accordingly; if a parcel be sent above that value without being entered and paid for as such, and it be lost, the owner of it cannot recover any thing of the carrier. Izett v. Mountain, 4 East. Rep. 371. See also Lyon v. Mells, 5 East. Rep. 428.

(1) So in Silva v. Low, 1 John. Cas. 184. it was held that a ship must not only be seaworthy, but must be duly equipped and manned with a competent crew engaged for the voyage.

bility commences with the receipt (g). In the port of London, with respect to goods intended to be sent coast wise, it has been held that the responsibility of the wharfinger ceases by delivery of them to the mate of the vessel upon the wharf (h). And as soon as any goods are put on board, the master must provide a sufficient number of persons to protect them (i); for, even if the crew be overpowered by a superior force, and [227] the goods stolen, while the ship is in a port or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault: the law in this instance holding them responsible from reasons of public policy, and to prevent the combinations that might otherwise be made with thieves and robbers.

It is in all cases the duty of the master to provide ropes, &c. proper for the actual reception of the goods

(g) Molloy, book 2. ch. 2. sect. 2. Roccus, Not. 88. Wellwood, tit. 9. Dig. 4. 9. 3.

(h) Corban & another v. Downe, 5 Espin. N. P. C. 41.

(i) Morse v. Slue, 1 Vent. 190. 238. Sir T. Raym. 220. Rich v. Kneeland, Hob. 17. 2 Cro. 330. Dig. 4. 9. 1. 1. "Nisi hoc esset statutum, "materia daretur cum furibus ad66 versus eos, quos recipiunt, eo"eundi, cum ne nunc quidem ab"stineant hujusmodi fraudibus." But the word fures here means thieves only, and not robbers, who come with a superior and irresistible force; they are called latrones Thus by the Digest, 17. 2. 52. 3. A partner, who has the care of the joint property, is not answerable, "si id latrocinio aut incendio peri"erit," but he is answerable," si a furibus subreptum sit:" Upon which Gothofred observes, ad

66

versus latrones parum prodest "custodia; adversus fures prod"esse potest, si quis advigilet. La"trocinium fatale damnum, seu

casus fortuitus est; at non furtum." And the words of the Digest, title Nautæ caupones stabularii, &c. 4. 9. 3. are, "nisi si quid "damno fatali contingat; inde La"beo scribit, si quid naufragio, "aut per vim piratarum perierit, "non esse iniquum exceptionem ei "dari; idem erit dicendum si in "stabulo aut in caupona vis major " contigerit." So that our law at present is stricter in the case of carriers, than the civil law; but it is said to have been the same formerly, and not to have charged a carrier in the case of robbery, unless he travelled by dangerous ways, or at unseasonable hours. See Janes on Bailments, p. 103.

into the ship (4). And if a cask be accidentally staved in letting it down into the hold of the ship, the master must answer for the loss (1). The ship must also be furnished with proper dunnage (pieces of wood placed against the sides and bottom of the hold) to preserve the cargo from the effects of leakage according to its nature and quality (m). And care must be [228] taken by the master (unless by usage or agreement this business is to be performed by persons hired by the merchant) so to stow and arrange the different articles, of which the cargo consists, that they may not be injured by each other or by the motion or leakage of the ship (n). And more must not be taken on board, than the ship can conveniently carry, leaving room for her own furniture and the provisions of the crew, and for the proper working of the vessel (). Neither may the master take on board any contraband goods, whereby the ship and other parts of the cargo may be liable to forfeiture or detention (p). (1)

(k) Laws of Oleron, art. 10. Laws of Wisbuy, art. 22. Welwood, tit. 9.

(1) Gof v. Clinkard, cited 1 Wils. 282.

(m) Ordin. of Rotterdam, 2 Magene, 101. Art. 125. 126.

(n) Wellwood, p. 29. Ordin. of Antwerp, 2 Magens, p. 16. art. 8.

French Ordinance, liv. 2. tit. Du Capitaine, art. 12. Laws of Wisbuy, art. 23. Laws of Oleron, art. 11. and Cleirac thereon.

(0) Roccus, not. 30. Ordin. of Rotterdam, 2 Magens, p. 102. art.

127.

(p) Molloy, book 2. ch. 2. sect. 7. Roccus, not. 66. Wellwood, tit. 9.

(1) Admitting that the master should not take on board contraband goods, without the leave of his owner, yet it may be a question how far the owner would be liable to a shipper, when contraband goods were put on board with the owner's consent, and in consequence the innocent goods of a shipper are captured, detained, or condemned. In Seton v. Low, 1 John. Cas. 1, where a policy was underwritten upon all lawful goods on board

4. The master must also take on board no false or colourable papers, that may subject the ship to capture

of a ship, the Court held that contraband goods were lawful goods, and that the fact of such goods being the goods insured, need not be disclosed to the underwriter. Kent J. said, “that contraband goods were lawful goods, and that whatever is not prohibited to be exported by the positive law of the country, is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law, contraband trade is prohibited to neutrals, and consequently unlawful. This reasoning is not destitute of force; but the fact is that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligA neutral naerent powers, and this it does from necessity.

tion has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet at the same time from the law of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods; and this they may do from the principle of self defence. The right of the hostile power to seize, this same very moral and correct writer continues to observe, does not destroy the right of the neutral to transport. They are rights that may at times reciprocally clash and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just right to complain. A trade by a neutral in articles contraband of war is therefore a lawful trade, though a trade from necessity, subject to inconvenience and loss." In the case above stated, it may be therefore suggested, that the owner does not impliedly warrant to the shipper an exemption from these accidents of war, or engage that the ship shall have none but innocent goods on board. The same question may be made as to how far a neutral owner, who transports property of a bellig