Foundation of liability
Foundation of the carrier’s liability to provide seaworthy vessel originated, so far as the earliest evidence goes, from the law of bailments where the duties of a common carrier were equal to those of bailees in general, i.e. to return the goods entrusted to him in same condition as they were initially delivered (see Common Carriers). The law thus implied an absolute responsibility of the carrier-bailee for the loss, even when happening without fault on the part of the person intrusted. In performance of his duty the law of bailments obliges every conductor operis, not to omit anything, however inconsiderable, which the nature of the contract requires. So in every contract for the carriage of goods between a carrier who is ready to transport goods for hire, and the person employing his vessel for that purpose, it is a term of the contract on the part of the carrier, implied by law, that his vessel is tight and fit for the purpose of employment.
In the seventeenth century case Morse v Slue (1672) 1 Vent 190, an action was against the master of a ship lying in the river Thames, for the loss of goods which were taken away by robbers, although the ship had the usual guard at the time. It was held that the master was liable:
… for even if the crew be overpowered by a superior force, and the goods stolen, while the ship is m a port or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault: the law in this instance holding them responsible from reasons of public policy, and to prevent the combinations that might otherwise be made with thieves and robbers.
Lord Tenterden in Abbott on Shipping, 10th edit. p. 258
It was therefore immaterial how the loss or damage occurred. In the following years certain developments generally relaxed liabilities of the bailees, however, the common carriers of the goods by sea were left bound by strict rule on the grounds of public policy. Thus, Lord Ellenborough C.J. said in his famous judgment in Lyon v Mells (1804) 5 East 428 that in every contract for the carriage of goods:
… between … 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 or employment for which he offers and holds it forth to the public: it is the very foundation and immediate substratum of the contract that it is so: the law presumes a promise to that effect‘ on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires it should be so.
Justification of this rule, which is not applicable neither to the common carriers by road nor to the carriers of the passengers by sea, was thought to be based on an assumption that the owner or master cannot be ignorant of the bad state of the ship; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship good and capable of the voyage.
Origin and validity of this approach was questioned by legal writers; Oliver W. Holmes in his work Common Law noted: "If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers, as those words are now understood, and upon no others, it has never yet been stated".
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