like prisoners upon trial, are entitled to the advantage of every reasonable doubt in their favour. It is not necessary for them to make out that the balance of probability as to Lady Hewley's design leans on their side. If it be no more than a question of difficulty and conflicting evidence whether she intended to exclude them, a court of equity cannot be justified in wresting from them the participation in this charity, or the management, as they happen to possess it. The proof upon which they are ousted ought to be clear and satisfactory, the nature of the foundress's wishes ascertained almost to a certainty, before an eviction so severe both on the dispensers and receivers be enforced. Now whatever result may be come to by minds of various constitution as to Lady Hewley's probable intent, there is no one, whose perceptions are not obscured by prejudice, who can fail to admit that the problem cannot be solved to complete satisfaction, that there are weighty arguments on either side, arguments from the nature of the question not admitting confutation.

On the consequences which have followed Lord Lyndhurst's confirmation of the Vice-Chancellor's decree it is needless here to enlarge. The Independents, as was to be expected, are not suffered to enjoy their victory alone, but other classes of dissenters, who did not share the struggle, have come in to participate in the spoil, and nothing with regard to the disposition of these charities is definitively arranged except the total exclusion of the old possessors. But although this particular case may not be carried further, it is impossible that the question itself can be finally set at rest whilst so many other endowments, rich enough to disturb the consciences or excite the cupidity of the more orthodox dissenters, remain in Unitarian hands. For ourselves, we confess an earnest desire to see this or some similar case submitted to a solemn adjudication in the House of Lords; and notwithstanding the high authority which has already decided on it, we cannot but think it probable that a very different conclusion might there be come to. At rate a matter of such consequence, both in itself and as a precedent for future decisions, seems to require and demand the consideration of the supreme tribunal.

any

ART. V.-MERCANTILE LAW, NO. XVII.-MERCHANT SHIPPING (continued.)

HAVING in the preceding number considered the obligations. which concern the shipment of goods, we proceed, as was proposed, to examine, in the second place, those which relate to the carriage and delivery, or, in other words, the duties of the owner as a carrier for hire.

The principles by which, independently of special stipulation or positive regulation, an engagement of this nature is governed, have been already investigated in treating of the inland carriage of commodities,' and it may therefore be sufficient in this place to state generally, that, from the act itself of receiving goods on board to be carried for hire, the law implies an undertaking on the part of the ship-owner to use his best endeavours in conveying them to their destination and there delivering them safe and uninjured to the order of the shipper. He is not bound to warrant their safety against the risk of wreck or capture, and it is even doubtful whether he can be treated, like the inland carrier, as an insurer against all casualties, not proceeding immediately from the act of God, or the assaults of a public enemy. What is required of him is, in the words of the law, "reasonable care and diligence." But this word "reasonable” is, if the expression may be permitted, an elastic term, varying in its import and extent with the exigency of the subject to which it is applied. The transport of commodities by sea is a service of much difficulty and hazard,

2

1 Vol. vi. p, 429.

2 We are aware that the famous judgment of Lord Holt in Coggs v. Barnard, 2 Ld. Raym. 909, is appealed to as establishing the doctrine that the owner or master of a ship is to be treated as an insurer; but there is nothing in that judgment which bears out such a proposition in its full extent, the exception to the general doctrine of mandatum being applied to the case of a common carrier. The cases contemplated by Lord Holt were those of owners of hoys, smacks, lighters, &c. plying within certain limits. The doctrine could, we apprehend, have no application to a vessel hired for a specific adventure. The cases of Smith v. Shepherd, Ab. on Sh. 252, and Trent Navigation Company v. Wood, id. 245, are of smacks navigating tidal rivers, and do not seem to have any application to sea voyages. In the preamble to the 26 Geo. 3, c. 86, the cases in which the master and owners are exempted from liability are stated to be “accidents by the king's enemies, the perils of the sea, or the act of God."

which he who undertakes must be supposed to have contemplated and provided against. He demands a proportionate remuneration, and is bound reciprocally to a proportionate exertion of skill and care; and inasmuch as all the precautions which enlightened prudence can suggest are not more than adequate to the occasion, it is scarcely too much to say that the owner would at the common law be accounted responsible for all contingencies by which loss or damage should accrue to the freighter except such as by no care or foresight could have been averted.

The result thus deducible from the nature of the service is however modified, if not altogether controlled, by the express engagement of the parties. By the law of England, differing in this respect from most other systems, a positive undertaking to do an act is not, as we have before had occasion to observe, excused by the interposition of the vis major or casus fortuitus rendering the execution impossible. Hence the necessity and the invariable practice of introducing into all charter-parties and bills of lading a special exception against the accidents of navigation. But as this exception in the form now in use comprehends all casualties of possible occurrence, and as no reservation however positive can dispense with the necessity of such a degree of care and diligence as the nature of the service requires, or exempt from the consequences of neglect,1 the general effect of the express engagement is, to place the obligations of the owner on nearly the same footing as the law would have determined them in the absence of any positive convention. Bearing this in mind, let us consider the duties and liabilities of the owner in the order in which they arise.

First, as to the preparation for the voyage: There must be a sufficient vessel, sufficiently equipped. In every charter-party the owner or master covenants that the vessel shall be “tight, staunch, and strong, well furnished with necessaries and every way fitted for the intended voyage." If there be no charter

Lyon v. Mells, 5 East, 428. In that case the owner of public lighters had attempted by notice to exempt himself from all liability beyond a certain sum, but he was held responsible for an injury occasioned by the defective state of the vessels themselves. The rule, as applicable to the exception in a bill of lading or charter-party, has been often stated by the Courts and is well understood in prac tice. See post, p. 375.

party, but the ship is put up by advertisement on general freight, there is in this tender of the vessel for a particular service an undertaking necessarily implied that she is, or shall be, fit to perform the service. In mercantile phrase a vessel wanting in any material requisite for the adventure is termed unseaworthy; and it is evident, first, that the unseaworthiness may be either in the quality or condition of the vessel itself, or in the defective state of its appointments, and secondly, that in both cases it is relative to the nature of the voyage, and the kind of cargo to be carried. Thus as to the quality of the vessel itself, a ship may be sufficiently good for carrying timber from the Baltic, which would be very unfit for bringing dried fruit from Smyrna; and if a perishable cargo of this kind were spoiled by wet on its passage, the vessel would not be reckoned seaworthy merely because she was new or newly repaired, for the question would be whether she was such a ship and in such repair as to be fit for the service on which she was employed. Again, a vessel admirably adapted for a voyage to Calcutta may be altogether unsuitable for a trip to Quebec. She might, for example, with the loading which she had bound herself to take be too deep for the comparatively shallow water of the St Lawrence, and if in consequence of this unsuitableness she took the ground in the river, and the cargo were lost, she would be accounted unseaworthy, though in all other respects her condition were unexceptionable.

The same general criterion is equally applicable to the furniture and equipment of the vessel; for it is obvious that a different scale of arrangements will be requisite in long seavoyages, and in the navigation of the inland seas-in peace, and in war—in an ordinary service, and in a hazardous and discretionary one.3

1

1 Lyon v. Mells, ubi ante, per Lord Ellenborough.

2 It is well known that vessels built at Sunderland and other ports on the northeast coast for the Baltic trade are never considered fit for the Mediterranean or West India trade. See the Report of the Evidence taken before the Select Committee of the House of Commons on Commerce and Manufactures.-Sess. 1833.

3 A good illustration of the general doctrine will be found in the case of Wedderburne v. Bell, 1 Campb. 1. The vessel sailed in time of war, and was lost in a hurricane. It appeared that a portion of her sails, useful for light breezes, was unserviceable. The loss was not attributable to this defect, but as the action was on a policy of assurance, in which seaworthiness is a warranty, it was made a ground of defence, and was held by Lord Ellenborough to be a sufficient one. "The hull

To be seaworthy then, the vessel must be sufficient for all the ordinary contingencies of the proposed adventure; she must be sound in her timbers, well caulked and tight, complete in her rigging and tackle; she must be amply furnished with provisions, water, and sea stores generally; she must have a competent master,1 a full and efficient crew, and, when requisite or expedient, a pilot for quitting or entering harbour; and lastly, she must be furnished with all the papers necessary for enabling her to sail to her destined port, or to secure her against seizure or detention; as the certificate of registry, charter-party, and bill of lading, the muster-roll of the crew, and the ship's articles, a manifest when required for importation, a bill of health when sailing from a suspected port, a licence when necessary for the legalization of the voyage, and the like. If, for the want of any of these requisites, loss or damage accrue to the freighter, the owner is liable to make it good, as well by the loss or abatement of his freight, as directly in an action for damages. But seaworthiness, though a positive undertaking, is not, in a contract of

of the ship," his lordship said, was sufficient and seaworthy; but it appears that when she left Jamaica her sails were highly defective. It is not enough that a ship is supplied with such sails as are essential to her safety from the perils of the sea: she must be rendered as secure as possible from capture by the enemy, as well as from the dangers of the winds and waves. Here the vessel appears to have been deficient in those sails on which her speed might materially depend." So also in Tait v. Levi, 14 East, 481, which was also an action on a policy, where the master from ignorance sailed into a port of Spain, which, he ought to have known, was in possession of the enemy, the Court held this to be such an incompetency as rendered the vessel unseaworthy.

1 Tait v. Levi, suprà.

3 Law v.

384.

2 Forshaw v. Chabert, 3 B. & B. 158.

Hollingworth, 7 T. R. 160; see also Phillips v. Headlam, 2 B. & Ad.

The general rule is thus stated in Ab. on Sh. 225: "he [the master] must procure and keep on board all the papers and documents required for the manifestation and protection of the ship and cargo by the law of the countries from and to which the ship is bound, and by the law of nations in general, and treaties between particular states." The master or owner is bound to know what is requisite in this respect. If no licence be necessary, even a covenant to procure one will not make the owner liable in respect of a condemnation illegally made, on the ground that the vessel was not provided with a sufficient licence, the covenant being understood to apply only to a voyage for which a licence would be necessary. Johnson v. Greaves, 2 Taunt. 344; and see Siffkin v. Allnutt, 1 M. & S. 39; Butler v. Allnutt, 1 Stark. N. P. C. 222. The master must not carry simulated papers, except by agreement with the freighter.