the ginseng to expected purchasers who came to the warehouse to view it on the invitation of the plaintiff, and rats at last got into the box and destroyed the ginseng; it was held that the defendant, the warehouseman, was not responsible for the loss. (i) Wharfingers.-The duties and responsibilities of the wharfinger, in respect of the safe keeping of the goods entrusted to him, to be dealt with in the way of his trade, are analogous to those of the warehouseman. If he receives directions to ship them on board a particular vessel, he does not discharge his duty by delivering them to one of the crew; but he is bound to place them in the hands of the captain or some person in authority on board the vessel. (k) If he is clothed merely with the custody of the goods, and the duty of shipping them devolves upon the master of the vessel to which they are to be sent, the wharfinger is discharged from responsibility as soon as he has placed them in the possession and under the care of the masters and officers of such vessel, although they are not actually removed from the wharf. (1) Agisters of cattle.-By the civil law and modern codes founded thereon, a person who receives cattle or horses or living animals to keep for the owner, and is paid expressly for his care and watchfulness in preserving them, as well as for their sustenance, is bound to take the utmost care of them, and he is responsible for damage and injury resulting from ordinary casualties if such damage might have been averted and prevented by the exercise of great care and vigilance. In our own law, it is said that the bailee is responsible only for ordinary and common care, which is the amount of care that a mere mandatary, or person who undertakes to feed and to keep living animals gratuitously, is bound to take of the beasts committed to his keeping (post, ch. 25, s. 2). Very slight evidence of neglect has, however, been sufficient to induce juries to return verdicts in favour of those who have sought compensation for the loss of cattle delivered to bailees to be kept for hire. Thus, where the defendant, a farmer, had received the plaintiff's horse to agist for a certain price, and the horse strayed and was lost and never after heard of, and the plaintiff gave evidence of the gates having been occasionally seen left open, and the fences being in parts out of order, but it did not appear that the horse had strayed through any defect in the fences, or through any of the gates having been left open, the jury, nevertheless, returned a verdict against the defendant for the full value of the horse. (m) If the bailee leaves (Cailiff v. Danvers, 1 Peake, N. P. C. 155. (k) Leigh v. Smith, 6 C. & P. 638, 641; 2 Esp. 695. (1) Corbin v. Downe, 5 Esp. 41; Story's Bailments, 293; Sir Wm. Jones, 97. (m) Broadwater v. Blot, Holt, 547. LIABILITIES OF AGISTERS OF CATTLE-LIVERY-STABLE KEEPERS, &c. 775 open the gates of his fields, or suffers his fences to be defective, or puts the horse into a dangerous pasture, and the horse by reason thereof is lost or injured, this is a degree of neglect for which he is undoubtedly responsible. (n) Livery stable keepers.-A livery stable keeper, to whom a horse is bailed to be kept for hire, impliedly undertakes to provide a stable reasonably wind and water tight, also a proper quantity of wholesome food for the horse, and a hostler who has a reasonable knowledge of horses, and is reasonably fit for the duties of his situation. He is bound moreover to give the horse proper air and exercise, to have it dressed and cleaned, and to exert himself with care and diligence to protect the horse from cold and wet, and from all ordinary and extraordinary hazards. FACTORS to whom goods have been bailed to be sold for the owner, and who receive a commission, or a per centage upon the price, by way of hire or reward for the exercise of their skill and labour in the commission entrusted to them, are bound to employ the same care in the custody and safe keeping of the goods as an ordinary hirer of chattels for use, or a bailee to whom chattels have been bailed to be worked upon, repaired, or manufactured. He is not bound to take the greatest amount of care that is ever taken of property of the description bailed to him, as he is not paid particularly and especially for his safe custody of the goods, but for his labour and services in selling them. It is sufficient, therefore, if he does all that a man of average prudence is wont to do in the care of his own goods. "Though he is to have a reward for his management, yet he is only to do the best he can; and if he be robbed, &c., it is a good account if he receives his master's money and keeps it locked up with reasonable care, he shall not be answerable for it if it be stolen.(o) . LIEN of workmen and bailees.-Workmen who have bestowed their labour and skill in manufacturing or repairing a chattel, have a lien thereon for their hire. A farrier who cures a horse of a disease, and the horsebreaker by whose skill the horse is rendered manageable, have liens; (p) but livery stable keepers and agisters of cattle have no lien for the price of the food of beasts committed to their keeping. (q) Wharehousemen and wharfingers have sometimes a lien by custom. (r) (n) Mosley v. Fosset, 1 Roll. Abr. 4, per Popham, C. J. (0) Per Holt, C J. Coggs v. Bernard, 2 Raym. (p) And so also has the owner of a stallion to whom a mare has been delivered to be got with foal. Scarfe v, Morgan, 4 M. & W. 283. (4) Chapman v. Allen, Cro. Car. 271. Jackson v. Cummins, 5 M. & W. 342. Judson v. Etheridge, 1 Cr. & M. 746. Sanderson v. Bell, 2 C. & M. 304. (r) Rex v. Humphrey, M'Clcl. & Y. Leuckhart v. Cooper, 1 Sc. 481; 7 C. & P. 126; 4 M. & Gr. 574. 776 CHAPTER XXIV. CONTRACTS FOR THE LETTING AND HIRING OF THE WORK OF CARRYING. SECTION 1.-Charter parties and contracts of affreightment.-Liabilities of the owners and masters of ships upon charter parties and bills of lading-Liabilities of the charterer or shipper-Payment of freight Shipowner's lien for freight-Abandonment of a damaged cargo-Payment of demurrage-Payment of primage and average-General average and contribution-Salvage. SECTION 2.—General duties, obligations, and liabilities of carriers for hire, not being common carriers.-Contracts for the letting and hiring of the work of carrying-Carriage of merchandize on the high seas-Liabilities of ship owners and masters of ships as carriers and bailees for hireDamage or loss of goods by the way-Loss by robbery, fire, or accident-Loss by the act of God, the perils of the sea, and the dangers of navigation-Loss by fire-Delivery of the goods to the consignee Limitation of the responsibility of owners and part owners of ships, by statute—Liabilities of persons who undertake the work of carrying by land for hire, not being common carriers. SECTION 3.-Liabilities of common carriers.-Definition of a common carrier-General duties, obligations, and liabilities of common carriers-Common carriage of passengers by coach-Carriage by railway-Common carriers of goods-Liability of common carriers for losses of goods by robbery— Losses by fire and inevitable accident-Damage to goods by the way-Limitation of the common carrier's liability by express contract, and by act of parliament-Carrier's notices-Carrier's act. SECTION I. CHARTER PARTIES AND CONTRACTS OF AFFREIGHTMENT. Charter parties and contracts of affreightment made between the owners or the master of a vessel on the one hand, and the charterer on the other, do not amount in general to a demise or bailment of the ship to the charterer, so as to clothe him with the possession of the vessel, but to a contract for the use of the ship, together with the services of the master and crew for the conveyance of merchandize. The contract, therefore, is ordinarily a contract for the letting and hiring of the work of carrying merchandize, (post s. 2.) If the end sought to be attained by a charter party can be accomplished without a transfer of the possession of the vessel to the charterer, the courts will not give effect to the contract, as a demise of the ship, although there may be express words of grant and demise. "The words granted and taken to freight," observes Burrough, J., "used in the beginning of the charter party, have been assimilated to those of demises in leases of land; but it appears to me that no analogy can be drawn between them, for the subject matter in each is of a wholly different nature. In the case of a lease, the party must be the actual possessor of the land, as he takes it for the purpose of cultivation. So with respect to a lease for a house, he takes it for his actual residence, and it is necessary in both instances that he should have the exclusive possession. It by no means follows, that although words of this description are introduced in a charter party that the possession of the whole of the vessel should thereby pass to the charterer."(a) If, however, the nature of the service, and the due attainment of the object sought to be accomplished, requires the vessel to be absolutely under the control, and subject to the orders and directions of the charterer; if she is to be employed in warfare, or in the fishing or coasting trade, or as a general ship for the conveyance of merchandize by the charterer for third parties, (Post. s. 3.) and is to be at the general disposal of the latter to sail upon any service that he may require, the courts will give effect to the contract as a demise of the ship. (b) In this case the contract is a contract for the letting and hiring of a chattel, and belongs to the class LOCATIO REI. (ante, ch. 22, s. 2.) The services of the master and crew pass as merely accessorial to the principal subject matter of the contract; they attorn as it were to the charterer and become temporarily the servants of the latter, bound to obey his orders. (c) LIABILITIES of the SHIPOWNERS and MASTER upon the ordinary form of CHARTER PARTY and BILL OF LADING.-In charter parties of affreight (a) Burrough, J., Christie v. Lewis, 5 Moore, 253. 2 B. & B. 410, s. c. Saville v. Campion, 2 B. & Ald. 510. Parish v. Crawford. Abbott on Shipping, 32. Dean v. Hogg, 4 M. & Sc. 195. (b) Trinity House v. Clerk, 4 M. & S. 295, 299. Hutton v. Bragg, 7 Taunt. 14. (c) Belcher v. Capper, 5 Sc. N. R. 316; 4 M. & Gr. 502. Thompson v. Small, 1 C. B, 353. ment, the ship owner usually covenants for the use of the ship by the charterer for a particular voyage or adventure. The customary stipula tions are, that the ship shall be tight and staunch, and well equipped and manned, and furnished with all the necessaries for the voyage; that she shall be ready by a day appointed to receive the cargo, and shall wait a certain number of days to take it on board, and after lading shall sail with the first fair wind for the destined port, and there deliver the goods in proper order and condition to the order of the charterer; and further, that during the continuance of the voyage the ship shall be tight and staunch, and furnished with sufficient men, and other necessaries, to the best of the owner's endeavours. (d) In order to determine who is the proper person to be sued upon a contract of affreightment, it must be ascertained whether the contract is, or is not, under seal. If the parties have contracted by deed, the action can only be brought against those who have executed the instrument and covenanted therein in their own names, or by some known title or description. If the charter party contains covenants both on the part of the owners and the master for the conveyance of the cargo and has been executed by both, the action may be brought either against the one or the other at the election of the covenantee. If it has been entered into and executed by the owners alone, they alone can be made liable upon it, whilst if the master is the only executing party, he alone can be sued thereon, although the deed may be expressed to be made by him for and on behalf of his employers, the shipowners. (ante, 370, 393). In order to charge the owners upon a charter party under seal entered into and executed for them by the master of the ship, it must be shown that the master was authorized by power of attorney under seal to bind the owners by deed, (e) the covenants moreover must be expressed to be made by the owners themselves, and not by the master on their behalf, and the deed must be executed by the master in the name of the owners, as in the case of the execution of an ordinary deed by an agent for his principal (ante, 393). If the master covenants in his own name, the contract is, as we have before seen, exciusively the contract of the master. He constitutes himself in such a case the carrier of the goods, and becomes personally responsible upon the express covenants contained in the charter party, and also upon all such implied covenants and engagements as result from the contract and the nature of the employment. (d) As to the construction of charter parties, see ante, 184, 143-158. And of an authority to the master to make alterations in the charter party, and alter the destination of the vessel. Wiggins v. Johnstone, 14 M. & W. 623. |