"vessel, by reason or means of any fire happening to "or on board the said ship or vessel" (u).

In this clause the master is not mentioned; and therefore it may be doubtful whether his responsibility is in this case removed by the statute: but the insertion of the word fire in the modern bill of lading has certainly

removed it.

9. By another section of the same statute reciting, "that disputes may arise, whether the owners or mas"ters of ships are liable to answer or make good the "value or amount of any gold, silver, diamonds, watch"es, jewels, or precious stones, which may be lost after "the same have been put on board their ships on freight, " without the shippers thereof declaring at the time the "value of such goods"-It is enacted, “That no`master, owner, or 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 86 away with, or secreting thereof, unless the owner or "shipper thereof shall, at the time of shipping [260]" the same, insert in his bill of lading, or other"wise 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." (x)

(u) 26 Geo. 3. c. 86. sect. 2.

(x) 26 Geo. 3. c. 86. sect. 3.

CHAPTER THE FIFTH.

OF THE LIMITATION OF THE RESPONSIBILITY
OF THE OWNERS AND MASTER.

1.

IN

were.

IN considering the instances, in which the owners are answerable to the merchant for the loss or damage of his goods, I have hitherto forborne to mention the limits of their responsibility, and have treated them as being responsible up to the full extent of the amount of such loss or damage; and so both by the Civil Law and by the Common Law of England they formerly For although it was decided (a) at a time, when the ransom of ships taken by a foreign enemy was not contrary to the laws of the realm (b), that such ransom could not be made at a price exceeding the value of the ship and cargo (and the loss of the value of the cargo would fall upon the merchants) yet until the responsibility of the ship-owner for the loss or damage. of goods was limited by statute, it was never doubted but that such responsibility was co-extensive with the loss, and the statutes, which have been made to narrow it, are founded upon that supposition. The ancient laws of Oleron, Wisbuy, and the HanseTowns, contain no provision on this subject. Nor is any alteration of the rule of the Civil Law noticed by

(a) Helley v. Grant, & Graham another v. Hall, cited 1 Ter. Rep. K. B. 79.

261]

(b) 22 Geo. 3. c. 25. prohibits ransom.

Roccus (c), although Vinnius, an earlier author, says, that by the law of Holland the owners are not chargeable beyond the value of the ship and the things that are in it (d); in conformity to which principle the French Ordinance declares, "that the owners of ships shall be แ answerable for the acts of the master, but shall be dis

charged therefrom upon relinquishing their ship and "the freight" (e). A similar provision is contained in the Ordinance of Rotterdam, made in 1721, which declares, "That the owners shall not be answerable for

any act of the master done without their order, any "further than their part of the ship amounts to" (f): and by other articles of the same Ordinance it appears that each part-owner is liable only for the value [262] of his own share (g). Valin, in his commenta

ry on the French Ordinance (h), informs us that the same regulations are also established at Ham-\ burgh (i).

2. The earliest provision of the British legislature on this subject is a statute made a few years after the date of the Ordinance of Rotterdam, and which was passed in consequence of a petition presented to the House of Commons by several merchants and other persons own

(c) The Notabilia of this author, who was a Neapolitan, were first published in 1655.

(d) In Peckium, p. 155, publishéd in 1647, the author cites Grotius, lib. 3. Introduc. ad. Jurisp. Bat. c. 1. and lib. 2. de jure belli et pacis, c. 11. n. 13.

(e) Liv. 2. tit. 8. des proprietaires, art. 2. The encouragement of maritime commerce, especially among the noblesse, was one of the princi

pal objects of this ordinance. See same book, & tit. art. 1. and Valin's preface to that title.

(f) Art. 167. 2 Magens, 107. (g) Art. 126. 127. 2 Magens, 101. 102.

(h) Tom. i. p. 569.

(i) An extract from the Ordin of Hamburgh, dated 1731, is given in 2 Magens, but the article containing this provision is not noticed:

ers of ships belonging to the port of London (k), setting forth the alarm of the petitioners at the event of a late action, in which it was determined that the owners were answerable for the value of merchandize embezzled by the master. The foundation of this limitation is mentioned in the preamble of the statute: which states, "That it is of the greatest consequence and importance "to this kingdom to promote the increase of the num"ber of ships and vessels, and to prevent any discour 66 agement to merchants and others from being interest"ed and concerned therein: and that it has been held, "that in many cases owners of ships or ves"sels are answerable for goods and merchandize [ 263 ] "shipped or put on board the same, although "the said goods and merchandize, after the same have "been so put on board, should be made away with by the masters or mariners of the said ships or vessels, "without the knowledge or privity of the owner or ཕ owners, by means whereof merchants and others are "greatly discouraged from adventuring their fortunes, "as owners of ships or vessels, which will necessarily

tend to the prejudice of the trade and navigation of "this kingdom." It is "Therefore, for ascertaining "and settling how far owners of ships and vessels shall "be answerable for any gold, silver, diamonds, jewels, "precious stones, or other goods or merchandizes, “which shall be made away with by the masters or "mariners, without the privity of the owners thereof,” enacted, “That no person or persons, who is, are, or

(k) See Commons Journals for the year 1733, page 277, the case referred to by the petition, appears clearly to be that of Boucher v. Law sen, cited in part 2. chap. 2. sect. 6.

The bill went through both houses without a division. The clauses directing proportional compensation and relief in equity were introduced in the House of Lords.

"shall be owner or owners of any ship or vessel, shall "be subject or liable to answer for or make good to any

66

away

one or more person or persons, any loss or damage "by reason of any embezzlement, secreting, or making with by the master or mariners, or any of them, ແ of any gold, silver, diamonds, jewels, precious stones, ❝or other goods or merchandize, which from and after "the 24th day of June, 1734, shall be shipped, taken

in, or put on board any ship or vessel, or for any act, "matter, or thing, damage or forfeiture, done, occasion"ed, or incurred, from and after the said 24th day of 5 June 1734, by the said master or mariners, [264]" or any of them, without the privity and knowl"edge of such owner or owners, further than the "value of the ship or vessel, with all her appurtenances, "and the full amount of the freight due, or to grow "due, for and during the voyage, wherein such em "bezzlement, secreting, or making away with as afore"said, or other malversation of the master or mariners, “shall be made, committed, or done; any law, usage, "or custom to the contrary thereof in anywise not"withstanding (1),"

:

3. And by the second section of the same statute, if several freighters sustain losses exceeding in the whole the value of the ship and freight, they are to receive compensation thereout in proportion to their respective losses and any one freighter, on behalf of himself and the other freighters, or any part-owner, on behalf of himself and the other part-owners, may file a bill in a Court of Equity for the discovery of the total amount of the losses, and of the value of the ship, and for an equal distribution and payment.

(1) 7 Geo. 2. c. 15. A. D. 1734.