themselves are answerable like other persons for any harm which they may do, by negligence or default.1 If a pilot refuses to board a vessel, he is liable for damages civilly and criminally.2 By some of the ancient marine ordinances the pilot was obliged to make full satisfaction, or to lose his head, in case of any injury happening through his fault.3 obtained, and the most judicious course is for the master to attempt to go into port without one, the owners will not be responsible for a loss happening in consequence of his so doing. Van Syckel v. The Sch. Thomas Ewing, Crabbe, 405. Yates v. Brown, 8 Pick. 24; Heridia v. Ayres, 12 id. 334; Campbell v. Williamson, 2 Whart. Dig. 680. See also Slade v. The State, 2 Carter, 33. In Lawson v. Dumlin, 9 C. B. 54, an action was brought against a pilot for negligently running into the ship of the plaintiff. The pilot, at the time, was in command of another vessel. He was held liable. In Stort v. Clements, Peake, 107, the general rule was admitted, but as the collision took place in consequence of the pilot steering the vessel according to the direction of the officer in charge, he was not held responsible. If a steamboat is hired for the purpose of towing a vessel, to which she is fastened, and both are under the direction of a licensed pilot, if the steamboat is injured in the course of the navigation, the owner of her is not entitled to damages, unless it was caused by the undue negligence of the pilot. Reeves v. The Ship Constitution, Gilpin, 579. * Commissioners of Pilotage v. Low, R. M. Charlt. 298. CHAPTER XVII. OF THE LIMITATION OF THE LIABILITY OF SHIP-OWNERS BY STATUTE. IN 18511 an act of Congress was passed entitled "An act to limit the liability of shipowners, and for other purposes." The provisions of this act are of paramount importance to the mercantile community, though the main object of the act has been frustrated by the neglect on the part of its framers to embody this intent in intelligible language. We have already considered the liability of the owners of a vessel, and of the master, by the common law, and shall now treat of the limitation of this liability by the maritime law and by the various statutes that have been passed in England and in this country. By the general maritime law the responsibility of the owners of a vessel for the acts of the master and mariners, was limited to the value of the ship and freight; and, by abandoning them, or by their loss before the termination of the voyage, all liability ceased.2 The Marine Ordinance of France of 1681,3 provided that the owners of ships should be responsible for the acts of the master, but that they should be discharged upon abandonment of their ship and freight. There has been quite a discussion whether this provision applied to contracts made by the master within the legitimate scope of his authority as master, as where he borrowed money for the necessary repairs and supplies of the ship.4 1 Acts of 1851, c. 43, 9 U. S. Stats. at Large, 635. 'Emerigon, Contrats à la Grosse, c. 4, § 11; The Rebecca, Ware, 188, 198; The Phebe, Ware, 263, 271. By the civil law each of the owners was bound in solido for the full amount of the obligations of the master, arising ex contractu. Dig. 14, 1, 1, 25; Dig. 14, 1, 2. But for obligations ex delicto, each was bound only for his part, that is, in proportion to the interest he had in the ship. Dig. 4, 9, 7, 5; The Rebecca, Ware, 188, 194; The Phebe, Ware, 263, 268. The contrary is stated in Stinson v. Wyman, Daveis, 172, 175, but apparently without reflection. 8 Ord. de la Mar. liv. 2, tit. 8, art. 2. * Valin, book 2, tit. 8, art. 2, and Pothier, "Des Proprietaires," liv. 2, tit. 8, In England, the liability of the owners of vessels has been limited by various statutes to the value of the ship and freight.1 Several questions of great interest have been decided under these statutes, which may be referred to as aids in the true construction of the act of 1851. In 1818,2 the legislature of Massachusetts passed an act on this subject mainly based on the English statute of 7 Geo. II. This was followed by an act in Maine in 1821,3 which is nearly an exact copy of the Massachusetts statute. In 1836, the Massachusetts statutes were revised, and the statute of 1818 was entirely rewritten. In 1840, the Maine statutes were revised, and the provisions of the Revised Statutes of Massachusetts substantially adopted. 5 The Act of Congress of 1851 is principally taken from the English Act of 26 Geo. III., and from the forty-seventh chapter of the Revised Statutes of Maine of 1840. Section 1 relates to a loss by fire, and is taken nearly word for word from the second section of 26 Geo. III. c. 86. It provides generally that a shipowner shall not be liable for loss by fire, "unless such fire is caused by the design or neglect of such owner." Then follows this proviso, which is not in any previous act, "Provided that nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners." art. 2, hold, on the one hand, that the provisions of the article above referred to, do not apply to the contracts of the master, while Emerigon, Traite à la Grosse, c. 4. § 11, is of the opposite opinion. The New Code de Commerce of 1807 adopts substantially the language of the Ordonnance, and this has occasioned another controversy. Pardessus, Cours de Droit Comm. tom. 3, tit. 3, c. 3, art. 663, supports the views of Valin, while Boulay Paty, Droit Comm. tom. 1, tit. 3, adopts those of Emerigon. The Court of Cassation has, however, decided that the owner of a vessel is indefinitely responsible for all the acts of the captain within the sphere of his authority, and especially for bottomry loans contracted in the course of the voyage. Tourrel v. Fabry, 19 Am. Jurist, 233. Stats. 7 Geo. II. c. 15; 26 Geo. III. c. 86; 53 Geo. III. c. 159; 17 & 18 Vict. c. 104, § 503, et seq.; 25 & 26 Vict. c. 63, § 54, et seq. Acts of 1818, c. 122. Maine Stats. 1821, c. 14, §§ 8-10. 'Rev. Stats. Mass., c. 32, §§ 1-4. This chapter was re-enacted with slight verbal changes in 1860. Gen. Stats. Mass., c. 52, §§ 18 – 21. * Rev. Stats. Maine, 1840, c. 47, §§ 8-11. See also Rev. Stats. 1857, c. 35, $5,6. The corresponding section of the statute 26 Geo. III. has been held to apply merely to goods on board a vessel. Ship-owners, therefore, were held liable for a loss by fire while the goods were being conveyed in lighters to the ship for the purposes of transportation.1 And the same rule has been applied under the act of 1851, where cargo was destroyed by fire after it was taken from the vessel, and before it was delivered to the consignees.2 The words "design or neglect of such owner," have been held not to include a loss occasioned by the negligence of the master or mariners; and the owner is, therefore, not liable for a loss by fire so occasioned.3 The proviso which ends this section presents an interesting question. It clearly gives the right to the parties to a contract of affreightment to make such contract as they please, extending or limiting the liability of ship-owners. It is well-settled law that fire is not a peril of the seas within the meaning of this exception in a bill of lading. If, then, an ordinary bill of lading is given containing only the exception "peril of the seas," is this a "contract" within this proviso, which extends the liability of the shipowner to a loss by fire? In a recent case before the Supreme Court of the United States, it seems to have been assumed that a ship-owner would not be liable in such case.4 1 Morewood v. Pollok, 1 Ellis & B. 743, 18 Eng. L. & Eq. 341. In New York, it has been held that the ship is not liable in such a case under our statute of 1851. Dill v. The Bertram, U. S. D. C., N. Y., Betts, J., The goods had been delivered to the vessel, and were on the wharf at the time. 2 By Curtis, J., in Goddard v. Bark Tangier, U. S. C. C. Mass., 21 Law Rep. 12; Salmon Falls Co. v. Bark Tangier, id. 6; The Ship Middlesex, id. 14. One of these cases was taken to the United States Supreme Court, but no opinion was expressed upon this point. Richardson v. Goddard, 23 How. 28. And this point seems to have been assumed in Gatliffe v. Bourne, 4 Bing. N. C. 314, 3 Man. & G. 643, 7 Man. & G. 850. 3 Walker v. Transportation Co. 3 Wallace, 150. Walker v. Transportation Co. 3 Wallace, 150. In this case no bill of lading was given; but the defendants pleaded, first, that the property was received on board with reference to the terms of the bills of lading usually given by them, which contained an exception of the dangers of navigation, fire, and collision; and second, that the property was received on board with the understanding that the usual bill of lading common in that trade should be given, and that such bill of lading exempted the ship-owner from loss by "perils of navigation, perils of the seas, and other equivalent words;" and that by usage and custom these words Section 2 provides that if the "shipper or shippers of platina, gold, gold dust," &c., shall lade the same on board of any ship or vessel, without, at the time of such lading, giving to the master, agent, owner or owners of the ship or vessel receiving the same, a note in writing of the true character and value thereof, and have the same entered on the "bill of lading therefor," the master and owners shall not be liable in any form or manner. "Nor shall any such master or owners be liable for any such valuable goods beyond the value and according to the character thereof so notified and entered." This section is based on the third section of 26 Geo. III., c. 86. By the English act the shipper must at the time of shipping "insert in his bill of lading, or otherwise declare in writing. . . the true nature, quality, and value" of the goods. A literal construction of the act of 1851 would deprive the shipper of remedy, if he did not, at the time of lading, give a note in writing, stating the true character and value, although the bill of lading might contain these particulars. In one case, however, a more liberal construction was given, and it was held that if the shipper actedhonestly, and the necessary statement was contained in the bill of lading this was sufficient.1 Under 26 Geo. III., c. 86, it has been held that a description in the bill of lading of the property shipped as "1,338 hard dollars" is a sufficient statement of the value, the dollar being a coin current at the port of shipment at the time, and that it is not neces included loss by fire, unless the fire had been caused by the negligence or misconduct of the owner or his servants. The libellants then amended their libel and admitted the contract, and claimed that the loss was occasioned by the negligence of the owner's servants or agents. The court rested its decision on the construction to be given to the second ground of defence, and held that there was nothing in a bill of lading concerning "perils of navigation and perils of the seas" which would make the owner liable for the negligence of his servants; and that the usage set up by the respondents, and admitted by the libellants, was not founded on a custom which the law could support, and that the case must be governed by the act of 1851. The libel was accordingly dismissed. 1 Wattson v. Marks, U. S. D. C. Penn., Kane, J., 2 Am. Law Reg. 161. The case of Greyor v. The Black Warrior, U. S. D. C. La., Boston Courier, March 18, 1858, seems to be opposed to so liberal a construction, but the report of the case does not state whether or not the bill of lading contained a statement of the facts required by the statute to be in the note. |