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connection with others, on some definite route, or between two certain termini." (1) Story seems to be of a like opinion. "When it is said," he observes, "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 merchandise for persons in general, such as vessels employed in the coasting trade, or foreign trade, or on general freighting business, for all persons offering goods on freight for the port of destination." "But if the owner of a ship employs it on his account generally, or if be lets the tonnage, with a small exception, to a single person, and then, for the accommodation of a particular individual, he takes goods on board for freight, not receiving them for persons in general, he will not be deemed a common carrier, but a mere private carrier." (2) So Angell, speaking of shipowners as common carriers, says: "When it is said that the owners and masters of ships are treated as common carriers, it is to be understood of such ships as are employed for the transportation of merchandise for all persons indifferently. Should the owner of a ship employ it on his own account, and for the special accommodation of a particular individual, take goods on board for freight, not receiving them from all persons indifferently, he does not come within the definition of a common carrier, he not holding himself out as engaged in a public employment." (3) But the learned author does not say what would be the case where a shipowner holds himself out as ready to send his vessel with cargo to any place that may be agreed on, on a private bargain, and not as a general ship.

In the absence of all common-law authority for the proposition that by the law of England every carrier by sea is subject to the same liability as the common carrier, as asserted in the judgment below, the authority of the Roman law is invoked; but this law, on which so much stress is laid in the judgment of the Court of Common Pleas, affords no support to this doctrine. In the first place, it is a misapprehension to suppose that the law of England relating to the liability of common carriers was derived from the Roman law; for the law relating to it was first established by our Courts with reference to carriers by land, on whom the Roman (2) Story on Bailments, s. 501.

(1) Parsons, Shipping, p. 245.

(3) Angell on Carriers, s. 89.

law, as is well known, imposed no liability in respect of loss beyond that of other bailees for reward. In the second place, the Roman law made no distinction between inevitable accident arising from what in our law is termed the "act of God" and inevitable accident arising from other causes, but, on the contrary, afforded immunity to the carrier, without distinction, whenever the loss resulted from "casus fortuitus," or, as it is also called, "damnum fatale," or "vis major "-unforeseen and unavoidable accident. The language of the Prætorian Edict, as given in the Digest, might indeed, if it stood alone, lead to the supposition that the liability of the carrier by sea was unlimited: "Ait prætor: nautæ, caupones, stabularii quod cujusque salvum fore receperint, nisi restituant, in eos judicium dabo." (Dig. iv. tit. 9), But Ulpian, who gives the words quoted in his treatise on the Edict, explains their meaning: "Hoc edicto omni modo qui recepit tenetur, etiam si sine culpa ejus res periit vel damnum datum est, nisi si quid damno fatali contingit. Inde Labeo scribit, si quid naufragio aut per vim piratarum perierit, non esse iniquum exceptionem ei dari. Idem erit dicendum si in stabulo aut in cauponâ vis major contigerit."

In the one case the absence of culpa makes no difference. In the other it does. No difference of opinion exists among civilians as to the law on this subject. There is no doubt that inevitable accident damnum fatale, casus fortuitus, vis major-for these are synonomous terms-exempt the carrier from liability. "Casus fortuitus," says Averani, "appellatur vis major, vis divina, fatum, damnum fatale, fatalitas."

Such is the Roman law, and such is the existing law of all the nations which have adopted the Roman law-France, Spain, Italy, Germany, Holland, and, to come nearer home, Scotland. It is embodied in the Code Civil of France. Treating of carriers by land and by water the Code says (Art. 1754): "Ils sont responsables de la perte et des avaries des choses qui leur sont confiées, à moins qu'ils ne prouvent qu'elles ont été perdues et avariées par cas fortuit ou force majeure.'

That such is the law of Scotland we learn from what is said in Erskine's Institutes, pp. 591, 592, n., from which it appears that by that law, not only storm and pirates, but also housebreaking and

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fire, constitute damnum fatale, which will exonerate the innkeeper
or carrier. (See also the Appendix to Stair's Institutes, by More,
p. 57.) But not only does this essential difference between the
Roman law and our own suffice to shew that, so far as the liability
of carriers is concerned, our law has not been derived from the
Roman as matter of legal history we know that the more rigo-
rous law of later times, first introduced during the reign of Eliza-
beth, was, in the first instance, established with reference to
carriers by land to whom by the Roman law no such liability
attached. It was not till the ensuing reign, in the eleventh of
James I., that it was decided, in Rich v. Kneeland (1), that the
common hoyman or carrier by water stood on the same footing as
a common carrier by land, and rightly, for in principle there could
be no difference between them. The next case in point of date,
and it is the first case in the books in which the liability of the
owner of a sea-going ship comes in question, is the well-known
case of Morse v. Slue (2), in which it was held, after a trial at bar,
that where a ship lying in the Thames was boarded by robbers,
who took the plaintiff's goods which had been loaded on board,
in an action brought against the master, the plaintiff was en-
titled to recover. And it certainly surprises me that this case
should be relied on as an authority for the position that the
liability of a common carrier attaches to the shipowner or
master where the ship is not a general ship; for though it is
not expressly said that the ship in question was a general ship,
which has led to the somewhat hasty assumption that she was
not, the internal evidence shews conclusively that she was so.
In the first place, the declaration is laid on the custom of the
realm, and we know that the only custom to which effect had up
to that time been given-and that quite in recent times--was
in respect of common carriers by land, and still more recently in
respect of common carriers by water. Secondly, Hale, C.J., in
giving judgment, puts the case as on all fours with that of a
common carrier or hoyman, and nowhere says that it is to be
treated as that of a private ship. "He who would take off the
master from this action," says the Chief Justice, “must assign a
difference between it and the case of a hoyman, common carrier,
(1) Cro. Jac. 330; Hob. 17.
(2) 1 Vent. 190, 238.

or innholder." Doubtless the counsel for the defendant, if the case had been distinguishable on the ground that the vessel was not a common ship, would have pointed out the difference, and at all events have taken the point; and in the corresponding report of the same case in Levinz (1), the case of Rich v. Kneeland (2) having been referred to, the Chief Justice is reported to have said that the case "differed not from that of the hoyman." But in the case of Rich v. Kneeland (2) we know that the barge or hoy was a common carrier; and it is obvious that if in Morse v. Slue (3) the vessel had been a private one, instead of treating the case as identical with that of the common hoyman, the Chief Justice would have put it on the ground that all sea-going vessels were subject to the larger liability. But besides this, there is a circumstance which appears to have been overlooked, which seems decisive to shew that the ship must have been a general ship. It is mentioned in the report in Ventris, that the ship was a vessel of 150 tons burden, bound for Cadiz, and that the goods shipped by the plaintiff, consisted of three trunks, containing 400 pairs of silk stockings and 174 lbs. of silk. It seems idle to suppose that a ship of that size would have been hired on such a voyage for the purpose of carrying the plaintiff's three trunks as her entire cargo. There seems, therefore, no reasonable doubt that the ship was a general ship. In like manner, in the case of Dale v. Hall (4), although the declaration was not upon the custom of the realm, but upon the implied obligation to carry safely, it appearing that the defendant was a shipmaster or keelman who carried goods from port to port, the Court decided in favour of the plaintiff, expressly on the liability of the defendant as a common carrier (though the latter was prepared to shew an absence of negligence on his part), on the ground that the allegation of the duty of a common carrier "to carry safely" was equivalent to a declaration on the custom of the realm. In the subsequent case of Barclay v. Cuculla y Gana (5), which was a case where, as in Morse v. Slue (3), goods had been forcibly taken by thieves from a ship lying in the Thames, on the objection being taken on behalf of the defendant

(1) 2 Lev. 69.

(2) Cro. Jac. 330; Hob. 17.
(3) 1 Vent. 190, 238.

(4) 1 Wils. 281.
(5) 3 Doug. 389.

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that he was not charged in the declaration on the custom of the realm, while there was neither express undertaking nor negligence to make him liable otherwise, the answer of the Court was "that there was no question at the trial as to the ship being a general ship;" and Lord Mansfield adds that it was impossible to distinguish the case from that of a common carrier.

Thus far the reported cases as to carriers by sea have been cases of general vessels. The next in point of time, that of Lyon v. Mells (1), was one in which the defendant kept sloops for carrying other persons' goods for hire, and also lighters for carrying such goods to and from his sloops as well as to and from the sloops of other owners. One of these lighters, in which goods of the plaintiff were being conveyed on board a sloop, proved leaky and took in a quantity of water, and the goods became seriously damaged, and it was also found as a fact that the goods had been negligently stowed. The defendant relied on a notice that he would not be answerable for any loss or damage unless occasioned by want of ordinary care of the master and crew, in which case he would pay 10 per cent. on the loss or damage; but that persons desirous of having their goods carried free from any risk in respect of loss or damage, whether arising from the act of God or otherwise, might have them so carried on entering into an agreement to pay extra freight in proportion to the risk. No extra freight having been paid, the question was whether the defendant was protected by this notice from liability for more than 10 per cent. of the damage. Nothing in reality turned upon his being a common carrier or subject to the liabilities of a common carrier. Some discussion, it is true, took place on the argument as to whether the defendant was a common carrier or not; but Lord Ellenborough, in giving judgment, put the matter on the right footing, namely, that a carrier by water impliedly engages that his vessel shall be water-tight, an obligation obviously applicable to all carriers, whether common carriers or otherwise, and that the defendant could not be taken to have intended by such a notice to claim immunity in respect of his own breach of contract, but only immunity above 10 per cent. for loss or damage arising from the negligence of the master and crew, and total immunity in respect of loss or damage from the act of God or other (1) 5 East. 428.