Nov. 2. The judgment of the Court (Brett and Denman, JJ.,) was delivered by BRETT, J. In this case, tried before me in London, the plaintiff delivered to the defendant's company in London, a mare to be carried by steamer to Aberdeen. The defendant's company advertised and habitually ran a line of steamers from London to Aberdeen. The mare was shipped without any bill of lading. At a part of the voyage, which was not determined by the evidence, the mare, during rough weather, was injured, and to such an extent that she died. There was a conflict of evidence as to the amount of care and skill exercised by the defendant's servants, and as to the conduct of the mare. The jury were asked, 1. Was the injury to the mare caused by negligence of the defendant's servants, either in preparing for bad weather or in attempting to save the mare from the consequences of bad weather? Answer, No. 2. Or, was the injury caused solely by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant's servants? Answer, No. 3. Or, was the injury caused solely by the perils of the sea, i.e. by more than ordinary rough weather, without any negligence of the defendant's servants or any fright and consequent struggling of the mare? Answer, No. 4. Or, was it caused partly by more than ordinary bad weather, and partly by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant's servants? Answer, Yes. The jury were further asked,— 5. Were there any known means, though not ordinarily used in the carriage of horses by people of ordinary care and skill, by which the defendant could have prevented the injury to the mare? This question the jury did not answer. Upon the answers of the jury, a verdict, for the purpose of the day, was directed to be entered for the defendant, the plaintiff having leave to enter a verdict for him on the findings of the jury, if upon such findings the Court should be of opinion that he was entitled to judgment. Upon a rule granted to shew cause, it was admitted on behalf of the defendant, that, if the whole voyage had been within the 1875 NUGENT V. SMITH. 1875 NUGENT v. SMITH. realm of England, the defendant would have been deemed to be a common carrier according to the custom of the realm, because he advertised to carry any persons' goods from place to place: but it was argued that, under the circumstances of the case, he could not be so deemed, because he undertook to carry to port without the realm; and therefore a part of the voyage was beyond the realm, and could not be subject to the custom of the realm. It was then argued that it was consistent with the evidence that the injury was caused outside the realm, and therefore that the liability in respect of such injury could not be regulated by the custom of the realm. It was also contended that, the peril of the sea which caused the injury, being the result of more than ordinary bad weather, that is to say, of weather not to be expected in an ordinary voyage, was, if the case was to be decided upon a carrier's liability according to the custom of the realm, the act of God within the meaning of that exception to a carrier's liability; and, further, that the injury having happened partly through the conduct, from its inherent nature, of the mare, the defendant could not be held responsible. It was urged for the plaintiff, that the defendant, by advertising that he would carry the goods of any person from place to place, undertook the responsibilities of and became a common carrier according to the custom of the realm of England; that this would be so in the case of any persons so advertising in England, and would be so in the case of any British ship-owner so advertising anywhere; that the circumstance of one of the termini of the proposed voyage being outside the realm did not alter the liabilities; that, even if the defendant was not a common carrier, yet he was a ship-owner carrying goods on board ship, as matter of trade, for hire, and ship-owners so carrying goods are, by the custom of the realm, responsible as insurers for the safety of the goods to the same extent as common carriers are responsible; that the perils of the sea which caused the injury in this case were not the act of God within the meaning of the exception to the complete liability of a common carrier or a carrier by ship of goods for hire, for that an injury can only be said, within the meaning of that exception, to have been occasioned by the act of God, when it has been occasioned directly and not indirectly by the extraordinary action of some physical force the consequences of which could not be averted, or by some unexpected and extraordinary natural occurrence which human foresight could not foresee nor human power resist or prevent, whereas there was in the present case a sea more rough indeed than on an ordinary voyage, that is to say, a peril of the sea, but nothing more; that the natural fright of the mare caused by the more than ordinary rough weather was not an inherent vice of the mare which could absolve the defendant from liability for the injury to the mare. This case was elaborately argued before my Brother Denman and myself. The main question treated was, the principle on which the liability of the defendant, if any, ought to rest. It was urged on behalf of the defendant that his liability cannot be made to rest on an allegation that he was a common carrier, because, it was said, that liability is imposed by a custom of the realm, and such a custom cannot have force beyond the realm, and the defendant has a right to assume in the present case that the injury to the mare happened beyond the realm. But, the phrase "by the custom of the realm" is in truth only a paraphrase for "by the common law." Thus, in Selwyn's Nisi Prius, tit. Carriers, c. 10, it is said: "And by the custom of the realm,' that is, by 'the common law,' &c." And Story on Bailments, § 469: "The general principles of the Roman and foreign law upon the subject have been stated somewhat more at large, because they form a proper introduction to the doctrine of the common law upon the subject, in which the responsibility of innkeepers is said to be founded on the custom of the realm, because in point of fact the origin of the latter may be clearly traced up to the Roman law, from which the common law, without any adequate acknowledgment, has from time to time borrowed many of the important principles which regulate the subject of contracts.” And, in Forward v. Pittard (1), Lord Mansfield says: "But there is a further degree of responsibility 'by the custom of the realm,' that is, 'by the common law." In Crouch v. London and North Western Ry. Co. (2), Jervis, C.J., says: "When a party who holds himself out as a common carrier accepts goods, 'the common law,' that is, (2) 14 C. B. 255; 23 L. J. (C.P.) 73. (1) 1 T. R. 27. 1875 NUGENT v. SMITH. 1875 NUGENT V. SMITH. 'the law founded on the custom of the realm,' ingrafts upon such acceptance a contract to carry safely and to insure, subject only to two exceptions, viz. the act of God and the Queen's enemies." The question, therefore, is one of contract, and depending upon the nature of the undertaking to be implied by the common law of England. The contract is obviously made at the time of the receipt of the goods for carriage. If that receipt be in England, on board an English ship, the whole contract must be construed according to English law. If it be abroad by an English master on board an English ship, it is still an English contract, because it is a contract made under the English flag: Lloyd v. Guibert (1): and therefore in that case also the question is, what is the undertaking to be implied on the part of the ship-owner by the common law of England. The question being one of contract, there is no principle of law which forbids the implication of a promise to carry safely beyond as well as within the realm. The reason of the implied promise, given by Lord Holt in Coggs v. Bernard (2), and by Best, C. J., in Riley v. Horne (3), founded on the reason on which the Prætor allowed the exceptional liability of ship-masters, inn-keepers, &c., applies at least quite as strongly to the part of the carriage by sea beyond the realm as to the part within it. There is no ground on which to imply a different extent of undertaking in the same contract for the carriage which is beyond the realm from that which is within it. On principle, therefore, the same promise should be implied for the whole carriage, whether the whole be within the realm or part be within and part without. Morse v. Slue (4) has always been treated as a decision that the same promise is implied where the ship is to go beyond sea as where she is always within the realm. And so has Goff v. Clinkard, quoted in Dale v. Hall. (5) Crouch v. London and North Western Ry. Co. (6) is precise to the same effect. And Kent, C. J., in Elliott v. Rossell (7), lays it down in the strongest terms, that "Masters and owners of vessels are liable as common carriers on the high seas as well as in port; and the argument of the ingenious counsel (1) Law Rep. 1 Q. B. 115. (2) 2 Ld. Raym. 909; 1 Salk. 26. (4) 2 Lev. 69; 1 Vent. 190, 238; 1 Mod. 85; 3 Keb. 72, 112, 135. for the defendant is not well supported in the position that the doctrine of common carriers is by the common law of England to be confined to cases of transportation by water within the jurisdiction of the realm. All the books and all the cases which touch this subject lay down the rule generally, and apply it as well to shipments to or from a foreign port as to internal commerce." "If the master be chargeable as a common carrier for goods received to be transported beyond sea, it would seem to be very extraordinary and idle for the law to regard him in that character only from the time that the goods were received on board until he had put to sea, and to regard him, when coming from abroad, as common carrier only from the time that he entered within the jurisdiction of the port. There is no colour of such a limitation of the rule." It seems to us that there is no answer to this reasoning. In all these cases the undertaking or promise is treated as one and indivisible. And we are of opinion that, whether the promise is to be implied only in ships which are held out as common carriers or in all ships which carry goods for hire, the promise or undertaking to be implied is, both on principle and authority, one and indivisible, and applies precisely to the same extent to a loss occurring in the part of the voyage beyond the realm as to one occurring in the part within the realm. If, therefore, it is right to say that the liability of insurance attaches to a ship-owner because he holds himself out to be a common carrier, the defendant, who did so hold himself out, was subject to the ordinary liability of common carriers, and could not, in the absence of any other defence, absolve himself on the ground that he may assume that the mare was injured beyond the realm. That some ship-owners so conduct their business as to be within the definition of common carriers, and to be properly so treated in every respect, is clear. It was so stated in Morse v. Slue (1) and in Coggs v. Bernard (2), and has been in a multitude of other cases. A general ship is, by the mere fact of her being so put up, made in all respects a common carrier, though she is going to a foreign port: Barclay v. y Gana (3); (1) 2 Lev. 69; 1 Vent. 190, 238; 1 Mod. 85; 3 Keb. 72, 112, 135. (2) 2 Ld. Raym. 909; 1 Salk. 26. 1875 NUGENT v. SMITH. |