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required, or affix the proper notice, are not entitled to the benefit of this act. By the fourth section, carriers cannot by a notice limit their liability at common law to answer for the loss of any articles in respect whereof they are not entitled to the benefit of this act. By the fifth section, every office of such common carrier shall be deemed a receiving-house, and any one proprietor shall be liable to be sued,
and no action shall abate for want of joining any co-proprietor. Special contracts are not to be affected by this act ē. Parties entitled to damages for parcels lost or damaged, may recover the extra charges for insuranceh. This act i does not protect any such common carrier from liability to answer for loss or injury arising from the felonious act of any servant in their employ, nor does it protect any such servant from liability for any loss or injury occasioned by their own personal neglect or misconduct. But common carriers are not to be concluded as to the value of any parcel by the value declared, but the party injured must prove the actual value by the ordinary legal evidence k Money may be paid into court by the common carrier in the same manner and with the same effect as money paid into court in any other action!
Although the foregoing statute in the preamble mentions articles of great value in a small compass, yet the provisions of s. I. in its enacting part are not controlled by those words in the preamble. The terms of that section are general, and it applies to any glass article if exceeding 101. in value. The carriage of glass requires particular attention, and imposes peculiar risk on the carrier. The term “glass” in the act being unlimited, the court would not be justified in saying that it applied to small glasses only, and not to glass of every description. In such a case, therefore, the plaintiff cannot recover, if he does not comply with the terms of the notice in the office, unless he can establish wrongful conduct or gross negligence amounting to a misfeazance, so as to take the case out of the protection intended by the statute. Gross negligence has in many cases been held to affix a liability on a carrier, to which he would not otherwise have been subject; as where he delivered the article to a wrong person "; or where a mode of conveyance different from that agreed for was substituted, viz., stage-coach for mail; or where a parcel was left unprotected in a cart P in a street in London; or carried beyond the place of delivery 4.
g S. 6.
h S. 7. i S. 8. k S. 9. 1 S. 10.
m Per Bayley, B., Owen v. Burnett, 4
Tyr. 141, 2 Cr. & M. 353. S, C. n Birkett v. Willan, 2 B. & A. 356.
Duff v. Budd, 3 Brod. & Bingh. 177. o Garnett v. Willan, 5 B. & A. 53.
Sleat v. Fagg, 5 B. & A. 342.
In every contract for the carriage of goods", between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract, on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose of employment, for which he offers and holds it forth to the publics. And the carrier and lighterman will be responsible for a breach of this implied undertaking, although he should give notice, “that he will not be answerable for any loss or damage, unless occasioned by want of ordinary care in the master or crew of the vessel, in which case he will pay 101. per cent. on such loss or damage, so as the whole does not exceed the value of the vessel and freight;" because the object of such notice is to limit the responsibility of the carrier in those cases only where the law would otherwise have made carriers answerable for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to provide against. In Ellis v. Turner, 8 T. R. 531, where a similar notice was given, the owner of the vessel was holden liable for the whole loss upon the special undertaking of the master.
By stat. 7 G. 2. c. 15. s. 1. reciting, that it had been holden that the owners of vessels were answerable for goods made away with by the masters or mariners, without the knowledge or privity of the owners, whereby merchants were discouraged from adventuring their fortunes as owners of vessels, to the prejudice of trade and navigation, it is enacted, that, “the owners of vessels shall not be liable for any loss or damage, by reason of any embezzlement, secreting, or making away with (by the master or mariners) of any goods. shipped on board any vessel, or for any act, matter, or thing, damage, or forfeiture, done, occasioned, or incurred by the master or mariners, or any of them, without the privity and knowledge of the owners, further than the value of the vessel with her appurtenances and freight for the voyage, wherein the embezzlement, &c. shall be made.”
An action was brought against the owner of a vessel to recover the value of a quantity of dollars t, shipped by the plaintiff on board the defendant's vessel, bound from London
p Smith v. Horne, Holt's N. P. C.
643. 8 Taunt. 144.
r Lyon v. Mills, 5 East, 428.
for Hamburgh. The dollars had been taken during the night, by force, from on board the vessel, by a number of fresh water pirates, as the vessel lay at anchor in the Thames. The defendant relied on the preceding statute, proving that one of the mariners was accessory in the robbery, by giving intelligence. The Court of King's Bench were of opinion, that this case fell within the words, “any act, matter, or thing, done, occasioned, or incurred, by master or mariners, or any of them,” and, consequently, that the defendant was not liable bevond the value of the vessel and freight. The preceding statute afforded a very inadequate protection to the owners of vessels, for they still remained liable for the full amount of goods lost by robbery, embezzlement, &c. to which the master or mariners were not privy, and the case of a loss by fire was wholly unprovided for by that statute; to remedy these inconveniences, and for the further encouragement of trade and navigation, the statute 26 G. 3. c. 86. s. 1. has confined the liability of the owners of vessels for any loss or damage, by reason of any robbery, embezzlement, &c. without the privity of the owners, to the value of the vessel and freight, although the master or mariners are not concerned in, or privy to, such robbery, embezzlement, 8c. The second section exempts the owners of vessels entirely from answering for
any loss by fire. And by the third section, “the owners of vessels shall not be liable to answer for any loss happening to any gold, silver, diamonds, watches, jewels, or precious stones, by reason of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper, at the time of shipping, insert in his bill of lading, or otherwise declare in writing to the master or owner of the vessel, the nature, quality, and value of such gold, &c.” The fourth section directs, that the freighters or proprietors shall receive satisfaction in average in proportion to their respective losses, if the value of vessel and amount of freight shall not be sufficient to make them full compensation; and empowers the freighters or proprietors, or any of them in behalf of himself and the other proprietors, or the owners of the vessel, to exhibit a bill in equity for the discovery of the amount of the losses, and also of the value of the vessel and freight, and for an equal distribution and payment thereof among the freighters in proportion to their losses; provided that, where the part-owners of the vessel exhibit the bill, they shall annex an affidavit, negativing collusion with any of the defendants; and shall thereby offer to pay the value of the vessel and freight, as the court shall direct, whereupon the court shall ascertain the value, and direct payment thereof, as in the case of bills of interpleader. See further provisions on this subject in stat. 53 Geo. 3. c. 159, and Gale v. Laurie, 5 B. and C. 156.
The preceding statutes do not affect the liability of masters and mariners a
By stat. 3 & 4 W. and M. c. 12. s. 24. “ Justices of the peace of every county and place in England or Wales, are empowered at the next quarter or general sessions after Easterday, yearly, to assess and rate the prices of all land carriage of goods, brought into any place within their jurisdiction, by any common waggoner or carrier, and to certify the rates to the mayors and chief officers of the market towns within their jurisdiction, to be hung up in some public place; and waggoners or carriers taking more than the rate fixed, shall forfeit 51. to be levied by distress and sale of goods, by warrant of two justices, where the waggoners or carriers reside.” And by stat. 21 G. 2. c. 28. s. 3. reciting the preceding provision, and further, that no rates for the carriage of goods from distant parts of the kingdom to London and places adjacent, had been yet settled, and that several common waggoners had thence taken occasion to enhance the price of carriage of goods to the prejudice of trade, it is enacted, “that every common waggoner or carrier, who shall demand and take any greater price for the bringing of goods to London, or to any place within the bills of mortality, than is settled by the J. P. for the county or place whence such goods are brought, for the carrying goods from London to such county or place, shall for every such offence forfeit and pay 5l. to the use of the party grieved; to be recovered as by stat. 3 and 4 W. and M. or by distress and sale of goods, by warrant under the hands and seals of two J. P. for the counties of Middlesex, Surrey, city of London, or Westminster; and the respective clerks of the peace are directed after Easter sessions, yearly, to certify to the Lord Mayor of London, and to the respective clerks of the peace for Middlesex, Surrey, and Westminster, the rates so made; which certificate, or an attested copy thereof signed by the officer, to whom the same shall be so transmitted, shall be evidence of the rates and prices set for the carrying goods to any county or place.” A doubt is expressed in a note to Kirkman v. Shawcross, 6 T. R. 18. n. (a), whether the last-mentioned statute is not wholly repealed by stat. 7 Geo. 3. c. 40.; but upon an exami'nation of that statute, s. 60, it will be found that there is an
u See 7 G. 2. c. 15. s. 4. 26 G. 3. c. 36. s. 5. 53 Geo. 3. c. 159. s. 4.
express exception of what relates to the rate or price for carriage of goods. It seems, therefore, that the preceding clause is still in force.
III. Of the Lien of Carriers.
By the custom of the realm, a common carrier is bound to carry the goods of the subject for a reasonable reward, to be therefore paid, by force of which he has a lieno as far as the carriage price of the particular goods, but not to any greater extent.
Common carriers have in many instances attempted to extend their lien, so as to cover their general balances, or, in other words, they have claimed a general lien. In Rushforth v. Hadfield, 6 East, 519, 7 East, 224, it seems to have been admitted by the court, that the lien claimed by a carrier for his general balance, was not founded on the common law, but that such a lien might arise by contract between the owner of the goods and the carrier : and that usage of trade, if general, uniform, and long established, was evidence of such contract (7). But it was resolved, that,
o Skinner v. Upshaw, Lord Raym. 752.
(7) See Naylor v. Mangles, 1 Esp. N. P. C. 109, where it was contended, that a wharfinger had a lien for his general balance ; Lord Kenyon, C. J. said, “ that liens were either by common law, usage, or agreement. Liens by the common law were given where a party was obliged by law to receive goods, &c., in which case, as the law imposed the burthen, it also gave him the power of retaining for his indemnity. This was the case of inn-keepers; that a lien from usage was a matter of evidence. The usage in the present case had been proved so often, he said, it should be considered as a settled point that wharfingers had the lien contended for.” And in Spears v. Hartly, 3 Esp. N. P. C. 81, Lord Eldon, C. J. (on the authority of the preceding case) held, that a wharfinger had a lien for his general balance; and further, that, although the balance was of more than six years standing, the wharfinger might retain the goods by virtue of his general lien, for the debt was not discharged by the operation of the Statute of Limitations, but the
remedy only. See also Aspinall, assignee of Howarth v. Pickford, 3 Bos. and Pul. 44. n. (a.) Trover for goods. The defence was, that the goods were put by Howarth into the hands of the defendant, as a carrier, to be