Receipt of cargo. Care of cargo. LIABILITY OF This is a duty not only towards others, but as between themselves, and it would seem that any contract calculated actually to interfere with it, and to fetter their judgment, would be held to be void (s). Where a pilot is required, it is the duty of the owners to take one on board (t). Owners are also bound to receive on board the cargo which they have contracted to carry, and to find proper ballast for the ship. Questions have frequently arisen as to whether a freighter who has contracted to load a full cargo, which is to consist partly of light and partly of heavy goods, is bound to load heavy goods, which, by supplying the place of ballast, would enable the ship to earn more freight. This depends upon the intention of the parties, and unless there be some express or implied stipulation, or some custom of the trade to the contrary, the freighter may ship what goods he likes, and the shipowners must provide proper ballast (u). Merchandise may, however, be taken on board a chartered vessel as ballast, if it do not occupy more space than the ballast would have done (v). When the goods have been loaded, the shipowners are, as we shall see (x), bound, ordinarily, to take the utmost care of them; but this liability may be narrowed by the terms of the particular contract under which they are carried, and is also in many cases diminished by statute. Where a general ship is advertised for a particular voyage, it is the duty of the owners, if her destination is altered, to give specific notice of the change to all those who afterwards ship goods on board (y). The duties of owners with respect to the carriage of passengers will be mentioned in a subsequent chapter (s). At common law, shipowners, like common carriers, have been treated as insurers, and made liable as such for any loss or (s) See the judgment in Card v. Hope, 2 B. & C. 674. (t) Post, Chap. V., PILOT. (u) Moorsom v. Page, 4 Camp. 103; Irving v. Clegg, 1 Bing. N. C. 53; Cockburn v. Alexander, 6 C. B. 791, and post, Chap. VI., CONTRACT OF AFFREIGHTMENT. As to the meaning of the words "full and complete cargo,' see The Southampton Steam Co. v. Clarke, L. R., 4 Ex. 73, 6 Ex. 53; Duckett v. Satterfield, L. R., 3 C. P. 227; Morris v. Levison, 1 C. P. D. 155; and Gifford v. Dishington, 9 Sess. Ca. (3rd series), 1045; and see Borrowman v. Drayton, 2 Ex. D. 15. (v) Towse v. Henderson, 4 Ex. 890. (y) Peel v. Price, 4 Camp. 243. FOR PERSONAL law. damage to goods intrusted to them, unless it was occasioned by DAMAGE TO the act of God, (such as storms, tempests and the like,) or of the GOODS AND King's enemies. They were also liable for damage done by INJURIES, &c. their servants acting within the scope of their employment (a), At common and the law formerly exacted a full compensation out of all their property, upon the principle that persons undertaking the conveyance of goods are answerable for the conduct of the persons whom they employ, since the parties suffering damage know nothing of these persons and have no control over them (). This general liability, however, no longer exists; it is not only usually narrowed by the express terms of the contract for carriage, but has been materially qualified by several acts of Parliament. Before we refer to the Merchant Shipping Act, 1854, and the Merchant Shipping Act, 1862, which are the statutes now in force relating to this subject, it will be convenient to call attention shortly to the earlier acts which limited the liability of shipowners, although these acts are now repealed. (a) An owner is not liable for the wrongful act of one who is employed by a stevedore who has undertaken to unload a cargo; Murray v. Currie, L. R., 6 C. P. 24. (b) See per Lord Stowell, in The Dundee, 1 Hagg. 121. The exception of cases of vis major allowed by the civil law was not recognized by the common law; Molloy, B. 2, chap. 2, s. 2. In a case in which the damage to the goods arose from one of the perils excepted in the bill of lading, but the exposure to that peril was caused by the mode in which the ship was moored during the unloading, it was held, that the shipowners were not liable if they had exercised ordinary and reasonable care; Laurie v. Douglas, 15 M. & W. 746. Generally speaking, there is no distinction between a land and a water carrier. See per Buller, J., in Prop. of Trent Navigation v. Wood, 3 Esp. 132, and the judgment in Laveroni v. Drury, 8 Ex. 170. See, however, upon the question whether a ship-owner is a common carrier, The Duero, L. R., 2 A. & E. 293; Nugent v. Smith, 1 C. P. D. 19, 423. In this case, on appeal, Cockburn, C. J., after dealing with a great body of law, civil and English, came to the conclusion that the owner of a general ship was not a common carrier, and that barge owners are liable as common carriers. See The Liver Alkali Co. v. Johnson, L. R., 7 Ex. 267; 9 Ib. 338. As to whether shipowners Under the earlier statutes. By the 7 Geo. 2, c. 15 (c), the liability of owners for loss or damage by reason of the embezzling, secreting or making away with by the master or mariners, without their knowledge or privity, of any goods or merchandize, was limited to the value of the ship and appurtenances, and to the full amount of the freight. This act, however, only protected the owners in cases of loss happening through the acts of the master or mariners. A subsequent act, the 26 Geo. 3, c. 86, extended the protection to cases in which the loss was not so caused, limiting the liability of the owners for losses happening without their privity or knowledge, to the value of the ship and all her appurtenances, and the full amount of the freight due, or to grow due, for the voyage whereon the loss occurred (d). The last-mentioned act also exempted the owners from liability for any loss or damage to any goods taken on board, by reason of fire on board (e); and protected both the master and the owners from responsibility for the loss or damage of gold, silver, watches, jewels or precious stones put on board, by reason of any robbery, embezzlement, secreting or making away with them; unless their true nature and value had been inserted in the bill of lading, or otherwise declared in writing by the owner or shipper to the master or owners at the time of the shipment (f). These acts, however, expressly reserved all remedies against the master and mariners for their own wrongful acts (g). By a later act, the 53 Geo. 3, c. 159, shipowners were protected from liability for any loss or damage arising by reason of any act, neglect, matter, or thing done, omitted or occasioned without their fault or privity, happening to any goods, wares or merchandize, or other things laden on board, or to any goods, &c. on board any other ship, or to any other ship, further than the value of the ship, and of the freight due, or growing due, for the voyage in prosecution, or contracted for at the time of the loss (h). 1854 and All these acts are now repealed (i), and the statutes which Under the regulate the liability of shipowners, in the cases to which the M. S. Acts, earlier acts referred, are the Merchant Shipping Act, 1854, and 1862. the Merchant Shipping Act, 1862. The ninth part of the earlier of these acts relates to the liability of shipowners, and contains provisions, some of which have been altered by the later statute. The statutory provisions now in force, and which are contained partly in one act, and partly in the other, are as follows: By sect. 503 of the Merchant Shipping Act, 1854, the owners of sea-going ships (j) are not liable to any extent whatever, for loss of or damage happening without their actual fault or privity to (1.) Any goods, merchandize or other things taken or put on For fire. board, by reason of any fire happening on board (k). (h) The 53 Geo. 3, c. 159, s. 1. In estimating the value of the ship within the meaning of this act, fishing stores carried on board, not as merchandize, but for the accomplishment of the objects of the voyage, were considered to be included; indeed, whatever was on board for the object of the voyage and adventure, belonging to the owners, was held to constitute a part of the ship and appurtenances; per Abbott, C. J., in Gale v. Laurie, 5 B. & C. at page 164. In calculating the value of the freight, money actually paid in advance was taken into account; Wilson v. Dickson, 2 B. & A. 2. And where the completion of the voyage was prevented by the tortious sale of the ship, the extent to which the owners were held to be liable was the value of the ship at the time of the sale, and the freight she would have earned had she completed the voyage, not the amount which was calculated on at its commencement; Cannan v. Meaburn, 1 Bing. 465. Where one of several owners was also master, and a loss occurred by his misconduct, it was held that his innocent co-owners were protected, but that he himself was not; Wilson v. Dickson, ubi sup.; The Triune, 3 Hagg. 114. It was provided by this act that the value of the carriage of any goods belonging to the owners, and the hire due or to grow due under any contract (except, in the (i) See the M. S. Repeal Act, 1854, (j) This section applies only to For robbery, &c. (2.) Any gold, silver, diamonds, watches, jewels or precious stones taken or put on board, by reason of any robbery, embezzlement, making away with or secreting thereof:unless the owner or shipper has at the time of shipping the same inserted in his bills of lading, or otherwise declared in writing to the master or owner of the ship, the true nature and value of such articles (7). By s. 54 of the Merchant Shipping Act Amendment Act, 1862 (m), the owners (n) of any ship, whether British (0) or foreign, are not answerable in damages where all or any of an exception of "fire on board," and the goods carried under it were injured in consequence of the water used to extinguish a fire occurring during the voyage, it was held that the exception and the section of the act had reference only to the obligation to deliver the goods, and did not take away the ordinary liability of the shipowner to general average contribution when a sacrifice had been made for the benefit of the adventure; Schmidt v. The Royal Mail Steam Ship Company, 45 L. J., Q. B. D. 646. The protection afforded by the 26 Geo. 3, c. 86, s. 2, in cases of fire, was confined to cases in which the fire arose on board the ship, and, consequently, did not extend to a casual fire occurring on board a lighter employed by the shipowners to convey the goods from the shore to the ship; Morewood v. Pollok, 1 E. & B. 743. (1) It has been held under this section that it is not sufficient to describe a parcel of gold as so much "gold dust," without stating its value. Williams v. The African Steam Ship Company, 1 H. & N. 300. (m) The protection given by the M. S. Act, 1854, was confined to sea-going ships, and the limit of the owner's liability was the value of the ship and freight due or to grow due during the voyage under prosecution or contracted for; subject, however, to the provision that in cases in which the liability was incurred in respect of loss of life or personal injury to a passenger, the value of the ship and freight was not to be taken at less than 157. per registered ton; the M. S. Act, 1854, s. 504. As to the construction of this act, see Nixon v. Roberts, 30 L. J., Ch. 844. This statute also provided, by s. 505, that the freight was to be deemed to include the value of the carriage of any goods or merchandize belonging to the owners of the ship, passage-money, and also the hire due or to grow due under any contract, except only such hire (in the case of a ship hired for time) as might not begin to be earned until the expiration of six months after the loss or damage. Both these sections are now repealed by the M. S. Act, 1862. The value of a ship for the purposes of the earlier statutes was considered to be the price for which he would have sold immediately before her loss, unless she was a ship of an exceptional character only wanted for special purposes (see The African Steam Ship Company v. Swanzy, 2 K. & J. 660; 25 L. J., Ch. 870; and Grainger v. Martin, 2 B. & S. 456), without deduction in respect of costs of sale; Leycester v. Logan, 4 K. & J. 725. See also Wilson v. Dickson, 2 B. & A. 2; Dobree v. Schroder, 6 Sim. 291. In Dobree v. Schroder, 2 Myl. & C. 489, it was held that the value of the ship was the price at which she could be sold, and that it was to be ascertained, not by making deductions from the cost price proportioned to her age, but by a valuation and appraisement. (n) This includes unregistered as well as registered owners; The Spirit of the Ocean, Br. & L. 336. A railway company carrying goods and passengers partly by sea and partly by land is entitled to the benefit conferred by these sections; London and South-Western Railway v. James, L. R., 8 Ch. 241. (0) It has recently been held that in the case of British ships requiring registration the section has no application if the ship is unregistered at the time of the damage done; The Andalusian, 3 P. D. 182. |