OF THE LIMITATION OF THE RESPONSIBILITY OF THE OWNERS AND MASTER; AND HEREIN, (Ss.)1. Of Foreign Laws and Ordinances on this Subject. 3. Provisions of the 26 Geo. 3, c. 86. 1. In considering the instances in which the owners are answerable to the merchant for the loss or damage of his goods, I have hitherto forborne to mention the limits of their responsibility, and have treated them as being responsible up to the full extent of the amount of such loss or damage; and so both by the civil law and by the common law of England they formerly were. (1) For although it was decided (a) at a time, when the ransom of ships taken by a foreign enemy was not contrary to the laws of the realm (b), that such ran (a) Helley v. Grant, and Graham and Another v. Hall, cited 1 Term Rep. K. B. 79. (b) 22 Geo. 3, c. 25, prohibits ransom. (1) The masters and owners of vessels employed to carry goods beyond sea, in consideration of freight, are answerable as common carriers, and to the whole extent of inland carriers, except so far as they may be exempted by the exceptions in the contracts of charter-party and bill of lading, or by statute. They are bound to indemnify, in cases in which they are liable as common carriers, according to the value at the place where they may have contracted to deliver the goods. See 2 Kent, (5th ed.) 599, 600; Watkinson v. Laughton, 8 John. 164; Amory v. McGregor, 15 ib. 24; Oakey v. Russell, 18 Martin, (Lou.) 62; McGregor v. Kilgore, 6 Ohio, 358. The owner is bound for the full amount of the injury done by the master or crew, unless where ordinances or statutes have established a different rule. 3 Kent, (5th ed.) 217. The Revised Statutes of Mass. ch. 32, § 1, have established a limit of the responsibility of the owners for the acts of the master and mariners, to the amount of the owners' interest, in the ship and freight. A similar Statute exists in Maine, 1 Laws of Maine, ch. 14, § 8. With the exception of these Statutes of Maine and Massachusetts, says Mr. Chancellor Kent, "I do not know of any such statute exemptions in this country." 3 Kent, (5th ed.) 217, 218. See the application made of these laws limiting the responsibility of owners in Pope v. Nickerson, U. States Cir. Ct. Boston, Oct. 1844, 3 Story C. C.; 7 Law Rep. 471. > som could not be made at a price exceeding the value of the ship and cargo (and the loss of the value of the cargo would fall upon the merchants,) yet until the responsibility of the ship-owner for the loss or damage of goods was limited by statute, it was never doubted but that such responsibility was co-extensive with the loss, and the statutes, which have been made to narrow it, are founded upon that supposition. The ancient laws of Oleron, Wisbuy, and the Hanse Towns contain no provision on this subject. Nor is any alteration of the rule of the civil law noticed by Roccus (c), although Vinnius, †an earlier author, says, that [† 395] by the law of Holland, the owners are not chargeable beyond the value of the ship and things that are in it (d); in conformity to which principle the French Ordinance declares, "that the owners of ships shall be answerable for the acts of the master, but shall be discharged therefrom upon relinquishing their ship and the freight "(e). A similar provision is contained in the Ordinance of Rotterdam, made in 1721, which declares, "That the owners shall not be answerable for any act of the master done without their order, any further than their part of the ship amounts to" (f); and by other articles of the same Ordinance it appears that each part-owner is liable only for the value of his own share (g). Valin, in his commentary on the French Ordinance (h), informs us that the same regulations are also established at Hamburgh (i). 2. The earliest provision of the British Legislature on this subject is a statute made a few years after the date of the Ordinance of Rotterdam, and which was passed in consequence of a petition presented to the House of Commons by several merchants and other persons owners of ships belonging to the port of London (k), setting forth the alarm of the petitioners at the event of a late action, in which it (c) The Notabilia of this author, who was a Neapolitan, was first published in 1655. (d) In Peckium, p. 155, published in 1647, the author cites Grotius, lib. 3, Introduc. ad Jurisp. Bat. c. 1, and lib. 2, de jure belli et pacis, c. 11, n. 13. (e) Liv. 2, tit. 8, des proprietaires, art. 2. The encouragement of maritime commerce, especially among the noblesse, was one of the principal objects of this ordinance. See same book, and tit. art. 1, and Valin's Preface to that title. See also the Code de Com. art. 216. (f) Art. 167, 2 Magens, 107. (g) Art. 126, 127; 2 Magens, 101, 102. (h) Tom. 1, p. 569. (i) An extract from the Ordinance of Hamburgh, dated 1731, is given in 2 Magens, but the article containing this provision is not noticed. (k) See Commons' Journals for the year 1733, p. 277. The case referred to by the petition, appears clearly to be that of Boucher v. Lawson, cited in part 2, chap. 2, sect. 3. The bill went through both Houses without a division. The clauses directing proportional compensation and relief in equity, were introduced in the House of Lords. was determined that the owners were answerable for the valuable merchandise embezzled by the master. The foundation of this limitation is mentioned in the preamble of the statute which states, "That it is of the greatest consequence and importance to this kingdom to promote the increase of the number of ships and vessels, and to prevent any discouragement to merchants and others from being interested and concerned therein and that it has been [† 396] held, that in many cases, owners of ships or vessels are answerable for goods and merchandise shipped or put on board the same, although the said goods and merchandise, after the same have been so put on board, should be made away with by the masters or mariners of the said ships or vessels, without the knowledge or privity of the owner of owners, by means whereof merchants and others are greatly discouraged from adventuring their fortunes, as owners of ships or vessels, which will necessarily tend to the prejudice of the trade and navigation of this kingdom." It is, therefore, "for ascertaining and settling how far owners of ships and vessels shall be answerable for any gold, silver, diamonds, jewels, precious stones, or other goods or merchandises, which shall be made away with by the masters or mariners, without the privity of the owners thereof," enacted, "That no person or persons, who is, are, or shall be owner or owners of any ship or vessel, shall be subject or liable to answer for, or make good to any one or more person or persons, any loss or damage by reason of any embezzling, secreting, or making away with by the master or mariners, or any of them, of any gold, silver, diamonds, jewels, precious stones, or other goods or merchandise, which from and after the 24th day of June, 1734, shall be shipped, taken in, or put on board any ship or vessel, or for any act, matter, or thing, damage or forfeiture, done, occasioned, or incurred, from and after the said 24th day of June, 1734, by the said master or mariners, or any of them, without the privity and knowledge of such owner or owners, further than the value of the ship or vessel, with all their appurtenances, and the full amount of the freight due, or to grow due, for and during the voyage, wherein such embezzlement, secreting, or making away with as aforesaid, or other malversation of the master or mariners, shall be made, committed, or done; any law, usage, or custom to the contrary thereof in any wise notwithstanding" (l). And by the second section of the same statute, if several freighters sustain losses exceeding in the whole the value of () 7 Geo. 2, c. 15, A. D. 1734. the ship and freight, they are to receive compensation thereout in proportion to their respective losses; and any one freighter, on behalf of himself and the other freighters, or any part-owner, on behalf of himself and the other part-owners, may file a bill in a Court of Equity [† 397] for the discovery of the total amount of the losses, and of the value of the ship, and for an equal distribution and payment. But by the third section, if such a bill is filed by or on behalf of the part-owners, the plaintiff must make affidavit that he does not collude with the defendants, and must offer to pay the value of the ship and freight as the Court shall direct. And by the fourth section, it is provided, declared, and enacted, "That nothing in this present act contained shall extend or be construed to extend, to impeach, lessen, or discharge any remedy, which any person or persons now hath, or shall, or may hereafter have against all, every, or any the master and mariners of such ship or vessel, for or in respect of any embezzlement, secreting, or making away with any gold, silver, diamonds, jewels, precious stones, or merchandise, shipped or loaded on board such ship or vessel, or on account of any fraud, abuse, or malversation of and in such master and mariners respectively; but that it shall and may be lawful to and for every person or persons so injured or damaged, to pursue and take such remedy for the same, against the said master and mariners respectively, as he or they might have done before the making of this act." By this statute, therefore, the legal responsibility of the master is left unaltered in all the cases before enumerated, and that of the owners also in the case of a robbery committed by persons not belonging to the ship. But where a ship in the river Thames was forcibly plundered of dollars during the night by a gang of robbers, in consequence of information. given by one of the mariners of the ship, who afterwards shared the booty; the responsibility of the owners was held not to extend beyond the value of the ship and freight by virtue of this statute (m). 3. Immediately after the decision of this case, and in consequence of the danger, to which the facts that were disclosed in it, showed the owners to be exposed, another petition was presented to the House of Commons (n), on behalf of several (m) Sutton v. Mitchell, 1 Term Rep. K. B. p. 18. (n) See Commons' Journals for the year 1786, p. 296. This Act also was passed without a division in either House of Parliament. owners of ships belonging to London and other ports, and in compliance therewith, another statute was passed (o), fixing the same limits to the responsibility of the owners in [398] the several cases mentioned in the preceding statute, and also in the case of robbery, "although the master or mariners shall not be in anywise concerned in or privy to such robbery, embezzlement, secreting, or making away with." This statute also contains the same provisions as the preceding Act, for equal distribution and discovery by bill in equity, and also for remedy against the master and mariners: and (as was mentioned in the preceding chapter) has entirely taken away the responsibility of the owners in the case of loss or damage by fire (p). 4. By 53 Geo. 3, c. 159, this limitation of the responsibility of the owners has been still further extended, for it is enacted, "That no person or persons who is, are, or shall be, owner or owners, or part-owner or part-owners, of any ship or vessel, shall be subject or liable to answer for or make good any loss or damage arising or taking place by reason of any act, neglect, matter or thing done, omitted, or occasioned without the fault or privity of such owner or owners, which may happen to any goods, wares, merchandise or other thing, laden or put on board the same ship or vessel after the 1st of September, 1813, or which after the said 1st of September, may happen to any other ship or vessel, or to any goods, wares, merchandise, or other thing, being in or on board of any other ship or vessel, further than the value of his or their ship or vessel, and the freight due or to grow due for and during the voyage, which may be in prosecution, or contracted for at the time of the happening of such loss or damage” (q). By this statute, it is also enacted, that the value of the carriage of goods belonging to any of the owners of the ship, and also the hire due or to grow due, under any contract, except only such hire as in the case of a ship hired for time, may not begin to be earned until the expiration of six calendar months after the loss, shall be considered as freight within the meaning of this act, and also of the two prior acts, that have been before mentioned (r). It is also further enacted, that in case any such loss or damage shall happen by more than one separate and distinct accident, and so forth, or on more than one occasion in the course of a voyage, or in the interval between the end of one voyage and the commencement of [† 399] another, every such loss or damage shall be com (o) 26 Geo. 3, c. 86, s. 1. (q) 53 Geo. 3, c. 159, s. 1. |