1875 NUGENT v. SMITH. Lavaroni v. Drury. (1) It would be sufficient, therefore, in the present case to say that the defendant was a common carrier, and therefore at all events subject to the liabilities of common carriers according to the common law. But it was argued strongly that this is not the real ground of the liability in the case of ship-owners; that some ship-owners who carry goods for hire are not common carriers, and yet are, in the absence of express contract, liable to the same extent as common carriers; that, in fact, all ship-owners who carry goods for hire, whether they be common carriers or not, are in the absence of express contract made liable by implication by the common law to insure the safe carriage and delivery of the goods intrusted to them, except against the act of God, or the Queen's enemies; that the true ground of such liability in the case of ship-owners is not that they are common carriers, but that they are ship-owners carrying goods for hire. It is not absolutely necessary, as we have pointed out, to determine this question in this case. But it is obviously one of great importance; and, as it was made a main point of argument, and was most ably argued, we think it right to give our judgment on it. In order to determine whether there may not be some shipowners who carry goods for hire, and who nevertheless are not common carriers, we should determine exactly what it is that makes a man a common carrier. "It is not every person who undertakes to carry goods for hire that is deemed a common carrier. A private person may contract with another for the carriage of his goods, and incur no responsibility beyond that of an ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation pro hac vice. A common carrier has therefore been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place:" Story, § 495. In (1) 8 Ex. 166; 22 L. J. (Ex.) 2. Fish v. Chapman (1) it is held, in what we venture to call a powerful and business-like judgment, that is, well applying the principles of law to the business of the country, that, "to constitute a man a common carrier, the business of carrying must be habitual, and not casual. The undertaking must be general, and for all people indifferently. He must assume to be the servant of the public; he must undertake for all people." "When it is said that the owners and masters of ships are deemed common carriers, it is to be understood of such ships as are employed as general ships or for the transportation of merchandize for persons in general, such as vessels employed in the coasting-trade, or in general freighting business for all persons offering goods on freight for the port of destination:" Story, § 501. The real test of whether a man is a common carrier, whether by land or water, therefore, really is, whether he has held out that he will, so long as he has room, carry for hire the goods of every person who will bring goods to him to be carried. The test is not whether he is carrying on a public employment, or whether he carries to a fixed place; but whether he holds out, either expressly or by a course of conduct, that he will carry for hire, so long as he has room, the goods of all persons indifferently who send him goods to be carried. If he does this, his first responsibility naturally is, that he is bound, by a promise implied by law, to receive and carry for a reasonable price the goods sent to him upon such an invitation. This responsibility is not one adopted from the Roman law on grounds of policy: it arises according to the general principles which govern all implied promises. And his second responsibility, which arises upon reasons of policy, is, that he carries the goods upon a contract of insurance. This policy has fixed the latter liability upon common carriers by land and water, not because they hold themselves out to carry for all persons indifferently; if that were all, there would be no ground for the policy, it would be without reason; many other persons hold themselves out to act in their trade or business for all persons indifferently who will employ them, and the policy in question is not applied to such trades; the policy is applied to the trade of common carriers, because, when the common law (1) 2 Kelly's (Georgia) Rep. 349. 1875 NUGENT V. SMITH. 1875 NUGENT v. SMITH. adopted that policy, the business of common carriers in England was exercised in a particular manner and subject to particular conditions which called for the adoption of that policy. The question is, whether the policy has not been applied, not only to ship-owners who are by their own act common carriers, but also to ship-owners who are not common carriers. Whether a ship-owner is or is not a common carrier must surely, upon principle, as from the cases and writings just quoted it appears to be on authority, depend upon whether the ship-owner holds himself out to carry for hire for all persons who may offer. But certainly many shipowners do not in fact do so. A ship-owner who puts his ship into a broker's hands to procure a charter does not hold himself out to carry for the first person who offers. Neither does a master who in a foreign port advertises that he is ready to enter into charters. The ship-owner or master has a right to consider the credit and responsibility of the proposed charterer, and to reject his proposal if it be thought expedient. One who puts up his ship as a general ship does, by so doing, by the ordinary understanding of shipowners and merchants, hold himself out as ready to carry all reasonable goods brought to him. And so does a ship-owner who runs a line of ships from ports to ports, habitually carrying all goods brought to him. It is admitted, therefore, that such are common carriers, and liable to all the implied undertakings of common carriers. The question is, whether other ship-owners carrying goods for hire without express stipulation, though they are not liable to all the implied undertakings of common carriers, are not by the common law, for reasons of policy, made also liable to one of those implied undertakings. The solution of this question will, we think, depend upon a consideration of the time at which and the reason for which the liability in question was introduced into the common law. No one who has read the treatise of Mr. Justice Story on Bailments, the essay of Sir William Jones, and the judgment of Lord Holt in Coggs v. Bernard (1), can doubt that the common law of England as to bailments is founded upon, though it has not exactly adopted, the Roman law. It is true that Lord Holt rests as for authority solely on Bracton: but the treatise of Bracton adopts (1) 2 Ld. Raym. 909; 1 Salk. 26. all the divisions of the Roman law in the very words of the Roman text, and further adopts the exception of the Roman law and the Roman reasons for it. The divisions may be the logical divisions of the subject, and so be naturally adopted by all in every country who treat the subject logically: but the exception, both in the Roman Empire and in England, was no natural exception, but one depending entirely on public policy, arising from the manner in which some particular kinds of business were carried on in both places. It is obvious, therefore, that Bracton, or English judges before him, adopted into the English the Roman law. By the primary divisions of the law of bailment in the Roman law and as enunciated by Lord Holt, those who carry goods for hire are, unless they are within the exception alluded to, liable only as other bailees for hire, that is to say, they are bound to ordinary diligence and to a reasonable exercise of skill, and, of course, are not responsible for any losses not occasioned by the ordinary negligence of themselves or their servants,—Story, § 457: but those who are within the exception are liable as insurers, &c. The question, therefore, is, what ship-owners are brought within the exception. That exception was in the Roman law contained in the well-known edict of the Prætor; and the reason for its promulgation was contained in the Commentary of Ulpian: "Ait Prætor, nautæ, caupones, stabularii, (1) &c.,"-that is to say, shipmasters and the class of persons who carried on the business of inn-keepers. If the proposition contained in the exceptional edict is to be considered as adopted straight and in terms into the common law, it is not some ship-masters, but all ship-masters, who are by the terms of it made liable to the greater liability. Carriers, it will be observed, are not mentioned; and certainly not a limited (1) The word "stabularii” here is evidently used in the second sense given for it in Facciolati and Forcellini's Lexicon (sub verbo), "Qui mercede homines eorumque jumenta hospitio excipit." Passages from Ulpian, Seneca, and Apuleius clearly shewing that the word was used to describe a person almost identical in character with a 1875 NUGENT v. SMITH. 1875 NUGENT v. SMITH. "The class of carriers called afterwards "common carriers." It required, of course, authority, customary and thence judicial, or parliamentary, to introduce into the common law the original rules and the exception as applicable to any case. But, if the exception was to be introduced at all, to what would it naturally be at first applied? It would seem that naturally it would first be applied to the trades or businesses which were carried on in England under the same names and conditions as formerly in the Roman Empire. Modern inn-keepers probably carry on the same business as both the stabularii and caupones did in the older time. The two trades, therefore, carried on in England under the same conditions as the three enumerated in the edict, were, the shipmasters and innkeepers. The conditions which had induced the Prætor as matter of policy to hold them to a strict liability in Rome were the same conditions as existed in the mode of carrying on the same business in England. The conditions on which the Prætor had acted with regard to ship-masters were not conditions confined to a certain limited portion of ship-masters: those conditions existed in the case of all ship-masters. When, then, the English judges, acting at first no doubt on the general understanding of all merchants and ship-owners, adopted into the common law the exception of the Roman law, there is no reason which can be suggested why they should not and did not adopt it in its terms, as applicable, not to a limited portion of, but to all ship-masters carrying goods for hire. Afterwards, according to the ordinary course of English law, the judges would have to consider whether some other trade or business was not to be in England introduced into the exception, because such trade was so carried on as to be within the principle of the exception. They found a trade established in England, viz. the trade of "common carriers," which was so carried on, by reason of the state of the country, as to be within the principle or conditions of the exception, and therefore they added that trade to those already within the exception. Common carriers would not be introduced because |