It would be impossible to enumerate all the particulars as to which this care should be taken. The wharf must kept in good repair, and its strength maintained. It must not be unduly encumbered; and if it be encumbered at night, it should be lighted. A suitable wharfinger should be employed, with such assistants as might be necessary for the proper discharge of his duty by day and by night. If the dock were encumbered by mud, coal or gravel, or by timber, or masses of metal or rock, these should be removed as soon as it could be done by reasonable exertions. And, in the mean time, full and adequate notice should be given of the danger, and the way to avoid it. In the absence of such notice or direction, a vessel coming to a wharf has a right to go to what part of the wharf it will. And if any part is dangerous, such distinct and precise notice how to avoid that danger should be given to an approaching vessel, that, if it persists in encountering the danger, it is the fault of the vessel.

In a case which has recently been tried in the United States Court for the District of Massachusetts, many of the questions considered in this section arose; and, in addition, one concerning the Sunday law. The vessel was hauled to the wharf where the damage was sustained, on Sunday; and it was claimed that this was in violation of the statute of Massachusetts. It was cononly in favor of those with whom they, as owners, contracted or dealt, and that they had no contract with the plaintiff. But the plaintiff's right of action arises from the duty which the law imposed on the defendants to keep their wharf safe, so long as they should permit it to be open and used, and not from any contract between them and him. Collett v. London R. 16 P. B. 984, 989. It has also been argued, that the instructions did not accurately limit the defendants' liability; that the jury were first instructed that the defendants were bound to keep the wharf safe for the uses for which it was made; although it might have been impossible to keep it safe, because the action of the sea might, in one night, have rendered it unsafe, without their knowledge or their power seasonably to apply a remedy. But that instruction was general, and was not intended to state the extent or the limits of the defendants' obligation. Certainly it cannot be understood to mean that the defendants were bound at all events to keep the wharf continually in repair, and that they would be liable for any injury received through want of its safety, however and whenever such want should be caused. And the last part of the instructions limited the defendants' duty and obligation, in this case, to the exercise of ordinary diligence, and also limited their liability to the want of ordinary diligence. Of this limitation the defendants, surely, have no cause to complain."

1 Pittsburgh v. Grier, 22 Penn. State, 54.

tended, however, on the other hand, that this statute was not intended to apply to the navigation of vessels, and that the maritime law makes no distinction between Sunday and other days of the week. It was also contended that if the State law applied, the effect of its violation was only to impose a penalty, and that the owners could still recover for the wrongful act of the defendants. In the Southern District of New York, in 1861,1 where Bosworth v. Swansey, 10 Met. 363, was cited, wherein it was held that a person travelling on the highway on Sunday cannot recover for a defect in the highway, Shipman, J., said: "The application of the doctrine of that case to cases of collision, would be a novelty in maritime law." Similar views were expressed by the Supreme Court of the United States, in a case before them; 2 and it is mainly on the authority of this case, that Lowell, J., rested, in the case above referred to.3 There are obvious and strong reasons

1 The Steamboat Metropolis, cited ante, p. 597.

* Philadelphia R. v. Philadelphia Steam Towboat Co. 23 How. 209. See also Powhatan Steamboat Co. v. Appomattox R. 24 How. 247.

Sawyer v. Oakman, U. S. D. C. Mass. February, 1867. In this case the ibellants were the owners of the schooner " Bowdoin," and the respondents owned a wharf and dock at Charlestown. The schooner, loaded with a full cargo of coal, arrived in port consigned to the respondents, and at the request of the latter made fast at one of the piers of the wharf, and awaited for some days the discharge of two other vessels which had had a prior right to the berth. On Saturday the master attempted to haul into the dock, which was then clear, but failed, and did haul in at high tide in the afternoon of Sunday. On Monday morning it was discovered that the vessel was badly hogged and strained, causing a damage estimated in the libel at ten thousand dollars. The libellants attributed the damage to the bad state of the dock, which they said had a large pile of coal in it and was otherwise dangerous. The respondents averred that the injury resulted from the negligence of the master in not hauling to the place pointed out to him for that purpose, and in not putting in suitable fenders. The dock has two berths, of which the upper or inner berth is much shallower than the other, and is intended for vessels that take the ground at low tide, and the theory of the defence was, that the vessel lay partly in one and partly in the other, and so did not rest wholly upon the ground at low tide; and she had a considerable list outwards or to port, which is alleged to have been caused by the master's negligence, and the damage was attributed by the respondents to one or both of these causes. They further set up as matter of law, that the master in removing his vessel on Sunday was acting illegally, under the statutes of Massachusetts, and could not recover for any injuries received in or in consequence of doing such an act.

In giving his decision, Lowell, J., said: "Upon these much contested points I

for supposing that the Sunday law was not intended to apply to the navigation of vessels; and we are aware of no case in which it has been so applied. It could not be intended to prohibit the sailing, arrival, or moving of vessels on Sunday; and if it did,

am of opinion, upon the preponderance of the evidence, that the damage was probably caused by the vessel's resting on the pile of coal, though this point is by no means clear. But if not, yet that the master complied substantially with the directions of the wharfinger in placing his vessel as he did, and that he put in the usual fenders. He was not warned of any danger, nor that there was any reason for his hauling to any particular spot, except the convenience of discharging his vessel at that berth, which was the real and only object of that notice, nor of the necessity for larger fenders, and in hauling as he did to a place within reach of the landing stage and suitable for discharging, and in fending in the usual way, he exercised due care and skill; for I agree that without special notice he would not be bound to more than usual care, either in placing his schooner or in making fast.

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It is clear that if the vessel was properly navigated and made fast, the injury must have resulted from some defect in the respondents' dock, and this is hardly denied. Now whether the defect were of the kind supposed by the one side or by the other, appears to me immaterial, because in either case the respondents must be presumed to have known of it, since the pile of coal had been there for some days, and the inequalities in the bottom of the dock for some years. And upon principles recognized alike at common law and in the admiralty, the owners of the dock and wharf making use of it for gain in the course of their business, would be liable for the damage arising from such defects, to a person lawfully using the dock in the course of business and in the exercise of due care. Philadelphia R. Co. v. Philadelphia Steamboat Co. 23 How. 209; Parnaby v. Lancaster Canal Co. 11 A. & E. 223; Mersey Docks Co. v. Gibbs, Law Rep. 1 H. L. 93. It remains to inquire whether the libellants are in a condition to recover this damage. They hauled in on a Sunday, not at the end of a voyage, but in order to be in a position to save a tide on Monday.

"It can hardly be denied that the act of hauling in on the Lord's day was an illegal act, under the statute of Massachusetts cited at the bar, which prohibits the performance of work and labor on that day, excepting in case of necessity. And cases were cited from the Massachusetts reports more or less analogous to this, and especially the important and leading case of Gregg v. Wyman, 4 Cush. 322, which tend to show that a plaintiff who is obliged as part of his case to found himself upon such an act cannot recover damages of a defendant who is likewise in the wrong. But without examining the authorities, or the reasons on which they rest, with critical attention, and assuming that no action analogous to this could be maintained in the courts of Massachusetts, I yet feel constrained, whatever my judgment might be upon the question, if new, to follow the decision in 23 How. 209. That was a case very similar in its circumstances to this, and a statute of Maryland almost identical with ours was relied on, but the Supreme Court sustained the action."

every pilot who brought a vessel in or out on Sunday, and every sailor who helped in the navigation of a ship, would be guilty of a breach of law, and could not be excused by the fact that he acted in obedience to orders. Maritime law seems nowhere to make distinction between Sunday and other days. We know of no instance in any book or treatise on the jurisdiction of admiralty in which such a distinction is intimated, and no case in which a court of admiralty is asked to declare a capture illegal, or refuse to give damages for collision, or compensation for salvage, or wages to a sailor, on the ground that the facts on which these several claims rested took place on Sunday.

CHAPTER XIII.

ON PASSENGERS.

SECTION I.

COMMON CARRIERS AND PRIVATE CARRIERS.

ALL the books which treat of the law of carriers acknowledge the important distinction between a common carrier and a private carrier. Very different rights, duties, obligations and responsibilities attach to these two classes of carriers. We have already considered this distinction in reference to the carriers of goods; and have remarked upon the uncertainty which still rests upon the principles or the definitions which would determine between a ship that is a common carrier, and one that is only a private carrier. Language is used in some cases which would seem to indicate that every vessel, whether under canvas or steam, is a common carrier. This cannot be true, for there must be such a thing as a vessel that carries either goods or passengers for hire, under circumstances which would make her only a private carrier, by special contract. If the principles which generally define the distinction between these classes of carriers on land be applied to those on water, it would seem that no vessels are common carriers that do not ply between definite termini, having their regular routes from one place to the other, like packets, or liners, as they are sometimes called.

These principles have, however, been somewhat relaxed as to carriers on land; so far, for example, as to consider hackmen and others, who go wherever they are required to, common carriers. And the decisions in respect to carriers by water would go still further. As we have seen, this distinction is comparatively unimportant as to water carriers of goods, from the universal use of bills of lading,1 which are express contracts between the ship-owner See ante, p. 250.