out any extraordinary accident, such as this was) will probably perform

the journey.

In the case of Forward v. Pittard, (1 T. R. 27.) the plaintiff had delivered goods to the defendant, who was a common carrier; and which goods were afterwards destroyed by accident of fire. The question was, whether the defendant was answerable for them.

Lord Mansfield said, "It appears from all the cases, for one hundred years back, that there are events for which the carrier is liable, independent of his contract. By the nature of his contract he is liable for all due care and diligence; and for any negligence, he is suable on his contract. But there is a further degree of responsibility, by the custom of the realm, that is, by the common law, a carrier is in the nature of an insurer. It is laid down that he is liable for every accident, except by the act of God, or the king's enemies: now, what is the act of God? I consider it to mean something in opposition to the act of man; for every thing is the act of God that happens by his permission; every thing by his knowledge. But, to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests.

"If an armed force come and rob the carrier of the goods, he is liable; and the reason is, from fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil.

"In this case, it does not appear but that the fire arose from the act of some man or other; it certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier, therefore, is liable, inasmuch as he is liable for inevitable accidents." Judgment for the plaintiff.

And it has been said by Lord Kenyon, that there is a difference where a man is chargeable by the general law, and where on his own contract. Thus, as to common carriers, who are chargeable by operation of law, for all losses, (except those arising from the act of God or the king's enemies,) they cannot discharge themselves from this responsiblity by an act of agreement of their own. But where a man is chargeable on his own contract he may qualify it as he thinks fit. Hyde v. Proprietors of the Trent Navigation, 5 T. R. 389. And these determinations have been confirmed in many more recent cases. But it sometimes happens that the line of conveyance is divided between several carriers, as well on land as on water carriage. In such case, if goods are delivered to a carrier going between X. and Y., to be carried to Y., and thence forwarded by another carrier to Z., and the carrier on his arrival at Y. put them into a warehouse, to wait an opportunity of forwarding them to Z., his responsibility as a carrier is thereby terminated. Garside v. Proprietors of Trent Navigation, 4 T. R. 581. See also Evans v. Soule, 2 Maule & Selwyn, 1.

Notwithstanding, however, this observation of Lord Kenyon, the merchants have adopted a new form for their bills of lading, by which they discharge themselves from the responsibility here mentioned. The difference between the new and former bills of lading consists in the introduction of an exception, which runs in these words :"The act of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature or kind soever, save risk of boats, so far as ships are liable thereto, excepted."

It is, however, proper to observe, that if no bill of lading be signed, then the master or owner is bound, by the general law of the land, as above mentioned.

"If a

But if

What acceptance makes a carrier liable.-Per King, C. J. box be delivered generally to a carrier, and he accepts it, he is answerable, though the party did not tell him there was money in it. the carrier asks, and the other says no; or if he accepts it, conditionally, provided there is no money in it; in either of these cases, the carrier is not liable." And so it was afterwards determined in the court of King's Bench, in the case of Gibson v. Paynton and another, 4 Burr. 2298. On the subject of conditional, or restricted, or special acceptance, and that with, or without notice, or with ambiguous notice, there are a very large class of decided cases, but too numerous and diversified to be admitted here. See especially, however, Beck v. Evans, 16 East, 244. Harris v. Packwood, 3 Taunton, 264.

N. B. In any contract for the carriage of goods by water, it is a term implied by law, that the vessel is in all respects adequate for the purposes of the conveyance. Lyon v. Mills, 5 East, 428.

Goods lost in a lighter.—If goods are lost after the owner of them has taken them from the ship into a lighter, it is his own loss; but it is otherwise if the goods are sent from the ship by the ship's boat, which is considered as part of the ship and voyage. Yet if the owner of any goods sends his servant with them, the carrier or lighterman is not liable if they be lost. By bill of lading a ship-owner under took that goods should be delivered safe, "the act of God, the king's enemies, fire, and every other dangers of the seas, rivers, and navigation, of whatever kind, save risk of boats, so far as ships are liable thereto, excepted." The goods were despatched from the ship in her boat, according to the course of trade in the West Indies, and they were all lost together in a hurricane. It was held that the ship owner was not liable under the terms of the bill of lading to make good the loss. The terms of it show it was not to make the owner liable to losses in boats, arising from the dangers of the sea, though it left him liable to such risks as those to which he was liable in ships. Johnson v. Benson, 1 Brod. & Bing. Rep. 454.

Captain not liable for more goods than are actually shipped.-A quantity of wheat and barley was intended to be shipped in the Ems on board the ship Martin, bound for London, and the master (Axton) signed bills for the whole quantity. He was afterwards prevailed upon, in order to save a tide, to sail with thirty-seven quarters short. On the factors, who had accepted bills for the whole quantity specified in the bills of lading, bringing an action for the value of the quantity short delivered, they were nonsuited, the captain having followed the direction of his principal, who was the owner of the cargo. Giles and others v. Azton. Hil. Term, 1830.

Passengers dying on board.—If any passenger die on board, the master is obliged to inventory his effects; and if no claim can be made to them within a year, the master becomes proprietor of the goods, but answerable for them to the deceased's legal representatives. Bedding and furniture become the master's and his mate's, but the clothing must be brought to the mast head, and there appraised and distributed among the crew.

Captain dying.-If a captain die, leaving money on board, and the mate becoming captain, shall improve the money, he shall, on allowance for his care, account both for interest and profits.

Leaving seamen abroad.-By 9 Geo. IV. c. 31, s. 30, if any master of a merchant vessel shall, during his being abroad, force any man on shore, or wilfully leave him behind in any of his Majesty's colonies or

elsewhere, or shall refuse to bring home with him again all such of the men whom he carried out with him as are in a condition to return when he shall be ready to proceed on his homeward-bound voyage, every such master shall be guilty of a misdemeanour, and, being lawfully convicted thereof, shall be imprisoned for such term as the court shall award. (See 58 Geo. III. c. 38, s. 1.) The mode of prosecution, trial, &c. are to be the same as are specified in that section of that act.

A master has no authority to sell the ship, unless in particular circumstances.-The master possesses every power necessary for the employment and navigation of the ship; but he has not, unless in a case of extreme necessity, authority to sell the ship. In a case (Johnson v. Shippen) before the court of King's Bench, Chief Justice Holt is reported to have said, "The master has no authority to sell any part of the ship, and his sale transfers no property; but he may hypothecate" or pawn. In a subsequent case, (Ekins v. East India Company.) Lord Chancellor Cowper decreed, that the East India Company should pay to the owner of a ship, purchased of the master at Batavia, for their use, and by one of their agents, the difference between the real value and the sum paid to the master, with interest thereupon, at the rate allowed in India. His lordship noticed that the sale of the ship was not necessary; and it appears that the transaction was a gross fraud between the master and the agent of the company; but without their privity. The decree was afterwards affirmed by the House of Lords.

It has been quoted, from an old law reporter, that, "the master may, in some cases, sell the ship, although it does not belong to him, as in the case of famine, &c." (Jenkins's Centuries, p. 165.) On this it has been remarked, (Abbott, p. 3,) that the exception of cases of extreme necessity rather fortifies than weakens the general rule; and no person can safely purchase a ship of the master, in any case, which does not clearly fall within the principle upon which the exception is founded: and such a case will rarely happen. And, although the master be himself a part-owner of the ship, yet will not his sale thereof be good for more than his own part; for the interest of part-owners is so far distinct, that one of them cannot dispose of the share of another; whereas, in articles of ordinary sale, one partner may, in general, transfer the whole property, if the transaction be without fraud.

In the year 1805, the ship Glamorgan, of London, proceeded thence on a voyage to Antigua and back; she delivered her cargo at Antigua, took in her homeward-bound cargo, and sailing to Tortola, to join convoy, arrived there in a leaky state on the 16th November, and was sold in the following month, under an order of the viceadmiralty court, obtained on the application of the master for a survey, and a report of surveyors that the ship was totally unfit, in her then state, to proceed with her cargo, and that the expense of repairing her would be more than her value when repaired. The purchaser procured a new register for the ship at Tortola, sent her thence to Nevis, there procured another new register, and sent her thence to the island of Grenada, where she took in a cargo, with which she safely arrived in London, in July, 1806. No fraud was found to exist in this sale, and the court being of opinion that the sale could not be sustained under the authority of the vice-admiralty court, it became material to consider whether it could be sustained as a sale by the

authority of the master. The court appear to have thought that it could not; but the point was not judicially decided, because the judges were of opinion that, supposing the master were warranted by an authority, express or implied, from his owner, to sell the ship in such a case, still it was necessary that the forms prescribed by the register acts should be complied with: and nothing of this sort having been done, the original owner succeeded in his action against the purchaser. (Reid v. Darby, 10 East, 143.) As to the authority of the vice-admiralty court, to order a sale on the application of the master, see 10 East, 378.

Again, the Fredonian, or American ship, Fanny-and-Elmira, was captured by the Danes, recaptured by a British sloop, and claimed in the prize-court of admiralty, on behalf of her original owners, who resided at New York, and also by a Mr. Ormsby, who had purchased her of the master at Sligo, in Ireland, under the following circumstances. The ship, having been damaged upon the rocks in Sligo Bay, was surveyed by persons whom the master described as competent, but who do not appear to have filled any public station, and who reported that it would require £1500 to repair the vessel, a sum far exceeding her value, and that it would be for the interest of the concerned to have her sold. She was accordingly sold by public auction, and bought by Ormsby for £350. The latter, by the master's desire, paid part of the money into the hands of the agents of the owner at Sligo, and carried the remainder to account between himself and the master. Soon after the purchase, Ormsby offered a fourth of the vessel to the master at the same price, provided he would consent to navigate her again as master: this he agreed to; the vessel was repaired at the expense of £800, sailed to Riga, and was taken on her return thence to London. The agents of the original owners declared, that they had done all in their power to prevent the sale, and had been ready to make any advances that might be necessary. Upon this evidence the judge of the admiralty ordered the ship to be restored to the original owners, without prejudice to any rights which the proper court of justice in America might admit that Mr. Ormsby had acquired by the purchase. In this case, it is obvious that the sale could not be justified on the ground of necessity. Upon this subject Sir Wm. Scott said: "In the first place it must be shown that there was a necessity, and then it remains to be considered whether it was such as by law would give the master a right to sell. That such a case may arise, I am not prepared to deny; suppose, for instance, a ship in a foreign country where there is no correspondent of the owners, and no money to be had on hypothecation to put her into repair. Under these circumstances what is to be done? the ship may rot before the master can hear from his owners; and, therefore, if the necessity were clearly shown, with full proof that every thing was done, optimá fide, and for the real benefit of the owners, the court might be disposed to sustain a purchase so made." And again, “In a case of that description, I say, strongly put, where there was no ground for suspicion, although I do not know that such a power is given to the master by the general maritime law, yet feeling its expediency, this court would strain hard to support the title of the purchaser: but there must be the clearest proof of the necessity: it must be shown, not only that the vessel was in want of repair, but likewise that it was impossible to procure the money for that purpose."

C

A similar decision as to this point took place in a case of Hunter v. Princep, in the court of K.B. (See 10 East, 143.) Lastly, in Underwood v. Robertson, (4 Camp. 138,) which was the case of a ship going from London to Demerara, and insured for that voyage, being captured by an American privateer near that island, plundered of her stores, and the crew taken from her. Being immediately afterwards recaptured, and carried into St. Thomas, the captain, with the authority of the vice-admiralty court at Tortoli, sold the ship and cargo, at a loss of 60 per cent. on the latter. The great question in this case was as to the captain's right, under the circumstances, to sell the ship and cargo, to do away the adventure, so as to entitle the insurers to recover from the underwriters. Lord Ellenborough was decidedly of opinion, that every expedient should have been attempted by the captain, before he went the length of selling the goods intrusted to his care; viz. by borrowing money, drawing on his owners, hypothecating the ship, &c.; and that the selling the cargo could only be justified in the last extremity, when every other resource was hopeless. The necessary inference from these cases is,

1st. That nothing but extreme necessity can justify a master or captain in the sale of a ship or cargo; and that the evidence of that necessity must be extremely strong, in order to rebut the suspicion which always attends such a transaction.

2dly. That the opinion of a vice-admiralty court is by no means conclusive evidence of such a necessity.

3dly. That the purchasers of ships so sold, will have a very precarious title, unless they possess themselves of every species of evidence, both legal and equitable, by which the property in the ships may be traced, the necessity of selling established, and the fairness of the transaction placed beyond the power of suspicion.

The effect of these restrictions on a sale by the master, has indeed been frequently evaded in foreign countries by procuring a sentence of condemnation and sale of a ship, as unfit for foreign service, from some court or judge having jurisdiction in maritime affairs: but no such jurisdiction is known to the laws of England. This has been illustrated more immediately by the following case, Hayman and others v. Moulton and others, in the sittings at Guildhall, Nov. 1, 1803. (See Abbott, 7; and 5 Esp. N. P. C. 65.)

The owners of the ship Grace sent her to Jamaica, under the command of a Mr. Cook, with a cargo consigned principally to M'Anuff and Cunningham, and with orders to follow their directions in respect to his lading back, and to apply to them for money for the use of the ship. On the 23d of February, 1802, after the discharge of her cargo, the ship was driven on shore at Rio Bueno, Jamaica, in a gale of wind. The master applied to Cunningham, who resided at Montego Bay, for advice in this emergency, and on the 27th of February, made the usual protest. On the same day, the deputy naval officer at Montego Bay directed his warrant to four masters of ships, directing them to examine the Grace, and make a return upon oath of her state and condition. They reported that they had been on board, and found the ship settled in a sandbank four feet, with a bank of sand between her and the sea of twice her length, and not more than two feet water on the sandbank; and that they were therefore unanimously of opinion, from the great expense that would be incurred in attempting to get her afloat, and the little chance of succeeding therein, that it would be most for the advantage of the underwriters, and all others