to have no other foundation than the general rule, that one who accepts and holds a benefit rendered, must acknowledge himself indebted for it. In like manner, if a ship is chartered to carry a cargo on a certain voyage, and a part of the cargo is lost by the perils of the sea, and a part is carried and delivered and accepted, although there may be no recovery of any part of the chartermoney in an action on the charter-party itself, yet an action may be maintained on the implied assumpsit for freight for the goods carried and received.1

It is not quite certain how the proportion shall be calculated, when pro rata freight is due. There are in fact but two ways of doing this. The part of the voyage for which freight is to be paid may be a geographical part, or a commercial (meaning a pecuniary), part. That is, the shipper may be held to pay, as in the earlier cases, so much per mile or league, for what has been done out of the whole voyage, or else so much as it would cost to bring them to the port at which the goods are accepted. Every rule must be a modification of one of these. The latter rule is that which we think is favored, and will generally be adopted in this country; and the simplest method of applying it would be for the shipper to pay the whole freight, deducting what would be the ordinary or usual cost of carrying the cargo from the port at which he received it to that of its original destination.2

inson v. Mar. Ins. Co. 2 Johns. 323; Mar. Ins. Co. v. United Ins. Co. 9 Johns. 186; Armroyd v. Union Ins. Co. 3 Binn. 437, 447; Callender v. Ins. Co. of N. A. 5 Binn. 525; Caze v. Balt. Ins. Co. 7 Cranch, 358; The Nathaniel Hooper, 3 Sumner, 542; Hurtin v. Union Ins. Co. 1 Wash. C. C. 530. See also cases ante, p. 240, note 2.

1 Post v. Robertson, 1 Johns. 24; Coffin v. Storer, 5 Mass. 252. If a charterparty is entered into for a time certain, at a given rate per month, and in the same proportion for whatever time the vessel may be employed, and is afterwards dissolved by mutual consent, pro rata compensation can be recovered under a special count alleging the employment of the vessel from the time stipulated for the charter-party to commence till its dissolution, or it may be recovered under a general count of indebitatus assumpsit. Wheeler v. Curtis, 11 Wend. 653. And an action of covenant can be maintained in a case where a vessel is let to perform several voyages, and performs an intermediate voyage at the request of the charterer's agent, the voyages described in the charter-party having been performed, and the charterer in the action of covenant seeking to recover no recompense for the additional voyage. Solomon v. Higgins, 6 Wend. 425. See also The Soblomsten, Law Rep. 1 Adm. 293.

2

' In Luke v. Lyde, 2 Burr. 882, 888, Lord Mansfield said: "Here the master

The questions relating to pro rata freight have often arisen in cases of capture and recapture, or release and return of the ship; or condemnation and sale of the ship and cargo and an ultimate recovery of the proceeds; or sale únder decree for salvage, and payment of proceeds to the shipper or his representatives, after deducting salvage. We do not consider these cases by themselves, for the general rules and principles we have already stated are perfectly applicable to them. Where goods never arrive at their port of destination, but are captured and retaken, or restored, or sold by decree and the proceeds paid over, at some other port or place, such reception of the cargo or its proceeds would not now be considered a voluntary acceptance, so as to raise the assumpsit on which the implied promise to pay pro rata freight must rest, unless there were peculiar facts or stipulations to sustain such an implication. It should be added, that if the parties, in the original contract, whether by bill of lading or otherwise, choose to stipulate as they sometimes do- that no claim shall arise under any circumstances for pro rata freight, no such claim will be given by any implication of law.

had come seventeen days of his voyage, and was within four days of the destined port when the accident happened. Therefore he ought to be paid his freight for 17-21st parts of the full voyage." In Robinson v. Mar. Ins. Co. 2 Johns. 323, owing to the circumstances of the case, the rule of Luke v. Lyde was adopted. Kent, C. J., however, in delivering the opinion of the court, considered the rule laid down in Marine Ins. Co. v. Lenox, decided by the court for the correction of errors in New York, to be more equitable when it could be applied. That rule was to ascertain how much of the voyage had been performed, not when the ship first encountered the peril, and was interrupted in her course, but when the goods had arrived at the intermediate port, because that was the extent of the voyage performed, as far as regarded the interest of the shipper. In Coffin v. Storer, 5 Mass. 252, it was held that freight was not to be calculated according to the portion of the voyage performed, compared with that of the whole voyage, but the actual benefit which the shipper received by the transportation.

1 Escopiniche v. Stewart, 2 Conn. 391. In this case rice was shipped to Bermuda. On the way the vessel was captured and taken to Antigua, but the captain of the privateer, on finding that it belonged to the defendant, delivered it up to a passenger on board the vessel, who sold it, and sent the proceeds to the defendant. It was held that this did not amount to an acceptance so as to render the defendant liable for freight. See also cases cited ante, pp. 240, 241.

SECTION VIII.

OF SHIPS AS COMMON CARRIERS.

Ships are often called common carriers; and that they may be so is certain; but that all ships which carry goods are to be treated as common carriers, cannot be true; and the language used in relation to this subject is either inaccurate and loose, or is misunderstood because it is not interpreted by a reference to the facts of the case in which it is used. Thus in a leading case on the law of carriers, it is intimated that there is no case which makes any distinction between a land and a water carrier. But that case related to regular inland navigation. And in an American case,2 the court say, that "a carrier by water, whether by inland navigation or coastwise from port to port, or to and from foreign countries, is a common carrier." But the court cannot mean that every carrier by water is a common carrier, for then there would be a very great difference between land and water carriers. The vessel in that case was a coasting vessel plying between Boston and Philadelphia; and the court must have meant, such a carrier by water as they were then considering. The true rule undoubtedly is, that one who carries by water, in the same way and on the same terms as a common carrier by land, is also a common carrier; or, in other words, it is not the land or the water which determines whether a carrier of goods is a common carrier, but other considerations, which are the same in both cases.

What, then, are these considerations? We take a common carrier to be one who offers to carry goods for any person, between certain termini or on a certain route; and he is bound to carry for all who tender to him goods and the price of carriage, and insures those goods against all loss but that arising from the act of God or the public enemy; and has a lien on the goods for the price of carriage. These are essentials; and though any or all of them may certainly be modified, and as we think may be controlled, by express agreement, yet if either of these elements is wanting from the relation of the parties, without any such agreement, then

1 Trent Navigation Co. v. Wood, 3 Esp. 127.

'Hastings v. Pepper, 11 Pick. 41, 43.

we say the carrier is not a common carrier, either by land or by water.1

If we are right in this, no vessel would be a common carrier, that did not ply regularly, alone or in connection with others, on some definite route, or between two certain termini. No vessel is therefore a common carrier unless she be what is commonly called a packet, or sail in a packet line. All general ships would be excluded; and all vessels under steam or canvas, on lakes or rivers, which are like general ships; for they would be as a private or casual carrier by land, and would be no more a common carrier because on the water. Then, if we allowed another essential element, the obligation to carry for all who offer, to exist in the case of regular packets, which might be doubted, it can hardly be supposed that every owner of a vessel put up as a general ship, loses all right of refusal or choice of goods or shippers, unless the commodities offered are either dangerous or unusual. Coasting vessels,2 steamboats, canal boatmen and those on

1 In Boucher v. Lawson, Cas. temp. Hardw. London ed. 85, 194, a suit was brought against the owner of a vessel for the loss of goods shipped by the plaintiff. Judgment was given for the defendant, on the ground that it was not found that the ship usually carried for hire, or that she was employed in this case to carry according to the custom.

2 Hastings v. Pepper, 11 Pick. 41; The Sch. Reeside, 2 Sumner, 567;' Crosby v. Fitch, 12 Conn. 410; M'Clures v. Hammond, 1 Bay, 99; Williams v. Grant, 1 Conn. 487; The Sch. Emma Johnson, 1 Sprague, 527. In Oakey v. Russell, 18 Mart. La. 58, goods were shipped from New York to New Orleans. It does not appear whether the vessel was a packet or not, or whether a bill of lading was given. The defendants were held liable as common carriers. Parker v. Flagg, 26 Maine, 181, is a similar case. It was admitted that the defendants were common carriers. The facts are not fully given in the report of the case. In the following cases it does not appear whether the vessel was a packet or not, but a bill of lading was given. King v. Shepherd, 3 Story, 349; Watkinson v. Laughton, 8 Johns. 213; Ferguson v. Cappeau, 6 Harris & J. 394.

The Huntress, Daveis, 82; Citizens Bank v. Nantucket Steamboat Co. 2 Story, 16; Jencks v. Coleman, 2 Sumner, 221; Gilmore v. Carman, 1 Smedes & M. 279; M'Gregor v. Kilgore, 6 Ohio, 358; McArthur v. Sears, 21 Wend. 190; Dunseth v. Wade, 2 Scam. 285; Hart v. Allen, 2 Watts, 114; Pardee v. Drew, 25 Wend. 459; Allen v. Sewall, 2 Wend. 327; Sewall v. Allen, 6 Wend. 335; Harrington v. M'Shane, 2 Watts, 443; Porterfield v. Humphreys, 8 Humph. 497; Hale v. N. J. Steam Nav. Co. 15 Conn. 539; Singleton v. Hilliard, 1 Strob. 203; Orange Bank v. Brown, 3 Wend. 158; New Jersey Steam. Nav. Co. v. Merchants Bank, 6 How. 344; Bennett v. Filyaw, 1 Fla. 403; Charleston Steamboat Co. v. Bason, Harper, 262; Jones v. Pitcher, 3 Stew. & P. 135; Swindler v. Hilliard, 2 Rich. 286; Benett v. Peninsular Steamboat Co. 6 C. B. 775.

rivers, and ferrymen 2 are all common carriers if their general occupation is to carry for the public. Steam tow-boats are not generally considered common carriers, in respect to the boats they have in tow;3 and a company maintaining a canal for the use of the

1

Hyde v. Trent Nav. Co. 5 T. R. 389; Trent Nav. Co. v. Wood, 3 Esp. 127; Elliott v. Rossell, 10 Johns. 1; Kemp v. Coughtry, 11 Johns. 107; Colt v. M'Mechen, 6 Johns 160; Mershon v. Hobensack, 2 Zab. 372; Fuller v. Bradley, 25 Penn. State, 120; Spencer v. Daggett, 2 Vt. 92; Arnold v. Halenbake, 5 Wend. 33; De Mott v. Laraway, 14 Wend. 225; Parsons v. Hardy, 14 Wend. 215; Humphreys v. Reed, 6 Whart. 435; Bowman v. Teall, 23 Wend. 306. In Eveleigh v. Sylvester, 2 Brev. 178, it was said that the doctrine of common carriers did not apply with full force to boats on the rivers, but this doctrine does not seem to have been followed. In Lengsfield v. Jones, 11 La. Ann. 624, it was held that, under a bill of lading in the ordinary form, a flat-boat was liable as a common carrier. See also Harrington v. Lyles, 2 Nott & McC. 88; Gordon v. Buchanan, 5 Yerg. 71; Turney v. Wilson, 7 id. 340. In Steele v. McTyer, 31 Ala. 667, it was held that persons who build or procure a flat-boat, and who hold themselves out as ready to carry cotton for all persons, are common carriers, although they intend to break up the boat and sell it for lumber at the end of the voyage. In Beckwith v. Frisbie, 32 Vt. 559, the owners of a canal-boat were, under the circumstances of the case, held to be private carriers.

In regard to ferrymen, it was held in Walker v. Jackson, 10 M. &. W. 161, that they were not generally common carriers, though a usage might be shown to that effect. In this country, however, a ferryman is generally considered a common carrier. Cook v. Gourdin, 2 Nott & McC. 19; Babcock v. Herbert, 3 Ala. 392; Smith v. Seward, 3 Barr, 342; Pomeroy v. Donaldson, 5 Mo. 36; Cohen v. Hume, 1 McCord, 439; Littlejohn v. Jones, 2 M'Mullan, 365; Rutherford v. M'Gowen, 1 Nott & McC. 17; Wilson v. Hamilton, 4 Ohio State, 722; Albright v. Penn, 14 Texas, 290; Fisher v. Clisbee, 12 Ill. 344; Powell v. Mills, 37 Missis. 691; Sanders v. Young, 1 Head, 219; Miller v. Pendleton, 8 Gray, 547; Claypool v. McAllister, 20 Ill. 504; Hall v. Renfro, 3 Met. Ky. 51; Whitmore v. Bowman, 4 Greene, Iowa, 148; May v. Hanson, 5 Calif. 360.

3 Caton v. Rumney, 13 Wend. 387; Alexander v. Greene, 3 Hill, 1. This case was reversed on appeal, 7 Hill, 533. In a subsequent case in the same State, the court of appeals pronounced the decision in 7 Hill, 533, not to be law. Mr. Justice Bronson said: "It is true that the judgment in Alexander v. Greene was reversed by the court of errors. But what particular point or principle of law was decided by the court, or what a majority of the members thought upon any particular question of law no one can tell." Wells v. Steam Nav. Co. 2 Comst. 204. See also Penn. Nav. Co. v. Dandridge, 8 Gill & J. 248; Leonard v. Hendrickson, 18 Penn. State, 40; Abbey v. The R. L. Stevens, U. S. D. C., N. Y., 21 Law Rep. 41. In Louisiana, it is held that tow-boats are common carriers. Smith v. Pierce, 1 La. 349; Adams v. New Orleans Steamboat Co. 11 La. 46. See also the opinion of Mr. Justice Kane, in Vanderslice v. The Steam Tow-boat Superior, 13 Law Rep. 399. The reasoning of the learned judge in this case