capture by a privateer, the damage done to the ship in the combat, and the expense of curing the wounded, are not the subject of contribution. and general average. (r) The correctness of this decision may, however, well be doubted, opposed as it is to the opinions of some of the most eminent writers on maritime law, and to the acknowledged principle of contribution. (8)

Calculation of the value.-By the civil law, the goods cast overboard were valued only at their invoice price or prime cost. (t) "A practice formerly prevailed in this country to adopt this valuation if the loss happened before half the voyage was performed; but if it happened afterwards, then to value the goods at the clear price which they would have fetched at the place of destination. The last valuation is now adopted in all cases where the average is adjusted after the ship's arrival at the place of destination. . . . . But if the ship is compelled to return to its port of lading, and the average be immediately adjusted, the goods only contribute according to the invoice price." (u) As soon as the average has been calculated and the exact amount of contribution ascertained, an action may be brought for its recovery. (x)

SALVAGE. We have already seen that the finder of lost property, who has been at labour and expense in recovering and restoring it to the owner, may, in certain cases, maintain an action against the latter to recover a reasonable compensation for the services and benefit rendered. This compensation, in the case of property lost by shipwreck and recovered and restored to the owner, is called salvage, a term derived from the French word salver or sauver, to save. In order to encourage persons to lend their aid and assistance for the protection and preservation of property from shipwreck, the law gives to the salvors by whose labour and assistance the property has been saved from impending peril a right to retain the goods until they have received a fair and reasonable compensation for their services. (y)

The amount of salvage payable in the case of the recovery of property lost by shipwreck or abandoned at sea depends upon the value of the thing saved, the degree of danger and loss, and the amount of labour and skill employed in saving it. Some maritime codes have proportioned the amount to the value of the thing saved, without reference to the surround

(r) Taylor v. Curtis, 6 Taunt. 608.

(s) Lens and Copley, Serjt's. arg. ib. 638643. Phillips on Insurance, 337. Benecke, 280. Pothier, (Avaries,) s. 2, No. 144.

(t) Dig. lib. 14, tit. 2, lex 2, § 4. (u) Abbott, 448.

(x) Birkley v. Presgrave, 1 East, 220. Dobson v. Wilson, 3 Campb. 480.

(y) Hartfoot v. Jones, 1 Raym. 393; Salk. 654, pl. 2, s. c. Sutton v. Buck, 2 Taunt. 302; Eyre, C. J., 2 H. Bl. 257.

ing circumstances of the case; but this is obviously unjust, and our own law, therefore, merely directs as a general principle that a fair and reasonable compensation shall be made. "Looking to the current of decisions," observes Lord Tenterden, "it will be found that it is rarely less than one-third or more than one-half of the property saved, unless the services have been very inconsiderable, or the amount of the property has been very great. And in cases of derelict, although the rule is now deemed a flexible one, yet courts of Admiralty still adhere to a moiety as the favourite amount, and require some peculiar circumstances to displace it." (2)

"Salvage," observes Sir John Nickoll, "is not a mere compensation for work and labour; various circumstances upon public considerations, the interests of commerce, the benefit and security of navigation, the lives of scamen render it proper to estimate a salvage reward upon a more enlarged and liberal scale. The ingredients of a salvage service are, first, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow-creatures, and to rescue the property of their fellow-subjects; secondly, the degree of danger and distress from which the property is rescued-whether it were in imminent peril and almost certainly lost if not at the time rescued and preserved; thirdly, the degree of labour and skill which the salvors incur and display, and the time occupied; lastly, the value. Where all these circumstances concur, a large and liberal reward ought to be given; but where none or scarcely any take place, the compensation can hardly be denominated a salvage compensation; it is little more than a mere remuneration pro opere et labore." (a) If the salvors are guilty of misconduct, and occasion injury to the ship and cargo by rescuing the vessel from one danger only to run her into another, the claim for salvage will be dismissed. (b)

A man cannot entitle himself to salvage in respect of services which have been rendered contrary to the express wishes and directions of the owner, and has no right to interfere with persons employed by the owner to save the property. (c) And if one set of men have taken possession of a vessel abandoned at sea and are endeavouring to preserve it, another set have no right to molest them and become participators in the salvage, unless it appears that the first would not have been able to effect the

(2) Abbott on Shipping, by Shee, 494, (n.) (a) The Clifton, 3 Hag. Ad. R. 117; ib. 90, 203.

(b) The Duke of Manchester, 10 Jur. 863. The Dosseitei, ib. 865.

(c) Sutton v. Buck, 2 Taunt. 312.

purpose without the aid of the others. (d) A passenger is not entitled to claim salvage in respect of that ordinary assistance to a vessel in distress which it is the interest of all persons on board to give, for the purpose of avoiding the common danger. (e) But for extraordinary services rendered and dangers incurred for the preservation of the vessel, the passenger is as much entitled to salvage as a mere stranger. (ƒ)

SECTION II.

GENERAL DUTIES, OBLIGATIONS, AND LIABILITIES OF CARRIERS FOR HIRE,

NOT BEING COMMON CARRIERS.

Contracts for the letting and hiring of the work of carrying.-Every person who accepts goods and chattels for conveyance to a particular destination for hire or reward, paid or agreed to be paid him for the carriage of them, impliedly lets out his labour and care in return for the hire or reward agreed to be paid to him. The contract, therefore, belongs to the class LOCATIO OPERIS. It was styled by the Roman jurists LOCATIO OPERIS MERCIUM VEHENDARUM, or the letting out of the work carrying merchandize. The owner who delivered the goods to the carrier to be carried was the letter of the work of carrying, and he was also at the same time the hirer of the labour and services of the carrier, whilst the carrier, on the other hand, was both the hirer of the work of carrying and the letter of his own labour and services, care and attention, to be employed in and about the conveyance and transport of the merchandize. In our own law, the liabilities resulting from the delivery of goods to a carrier to be carried for hire form an important branch of the law of bailments

CARRIAGE OF MERCHANDIZE ON THE HIGH SEAS.

Liabilities of shipowners and masters of ships as carriers and bailees (f) Newman v. Walters, 3 B. & P. 612.

(d) Abbott, 495.

(e) The Branston, 2 Hag. 3.

for hire.-When a charter party of affreightment operates as a demise or bailment of the ship to the charterer, and the vessel is employed by the latter as a general ship for the conveyance of merchandize, the charterer becomes the carrier of the goods shipped on board, and the master is his servant and agent whilst procuring freight and contracting with third parties for the carriage of merchandize, and not the agent of the registered owners of the vessel, and the latter, consequently, cannot be made responsible for the loss of, or injury to the goods shipped on board under such contracts. (a) But when the charter party operates merely as a contract between the charterer and the shipowner for the conveyance by the latter of goods and merchandize to be shipped on board by the charterer, the registered owners are then the carriers of the goods, and will be responsible to the charterer for the non-conveyance of them, according to their contract. Although the shipowners cannot, as we have already seen, be sued upon a charter party under seal, entered into by the master in his own name on their behalf, yet they may be made responsible for a breach of those duties and obligations which attach to them in their character of carriers, independently of the charter party. Thus, where the plaintiff declared that he had shipped a cargo of oranges on board a vessel, of which the defendants were the owners, to be carried from St. Michael's to London for certain reasonable reward, to be paid by the plaintiff to the defendants, and that it thereupon became the duty of the defendants, as such owners, to appoint a skilful master or captain for the purpose of conveying the oranges with safety, but that the defendants neglected to appoint such captain, and, on the contrary thereof, employed an unskilful and improper master or captain, through whose misconduct, carelessness, and negligence the oranges were lost and destroyed, it was held that the shipowners were responsible for the loss occasioned, although the goods had been shipped on board by virtue of a charter party of affreightment under seal executed by the master, by which the latter had covenanted to convey the cargo to its destination. "We are of opinion," observes Dallas, C. J., " that this action is properly brought. The owners of a ship, for whose benefit she was navigated, are bound by the maritime law to the owners of goods shipped and received on board, to be carried for the due carriage thereof, and are liable for any negligence on the part of themselves or their servants, whereby the goods may be damaged. If without fraud and in the due course of the ship's employment, the master makes a charter party (under seal) the shipowners are not thereby di

(a) Rodgers v. Forrester, 2 Camp. 483.

James v. Jones, 3 Esp. 27. Major v. White, 7 C.

& P. 41.

vested of liability, but are still liable for the performance of such duties belonging to them in that character as are not inconsistent with the stipulations contained in the charter party; and whether that instrument be made under the seal of the master or not, seems to make no difference in this respect; because the shipowners are not charged directly upon the contract of charter party; but upon their general liability as principals in the adventure, deriving profit from the ship's employment."(b)

When the contract of affreightment is not under seal, the action for the breach of such contract and of the implied promises and engagements resulting from the acceptance of goods to be carried for hire, may be brought either against the owners who appoint the master to the command of the vessel, and constitute him their agent for the employment of the ship or against the master who has accepted the goods to be carried, whether the contract is expressed to be made, or whether the goods have been accepted by him, in his own name only, or for and on behalf of his principals and employers. (c) An agent is not ordinarily liable, as we have before seen, upon simple contracts entered into by him in a representative character on behalf of his principal; (d) but the master of a ship is considered to be something more than a mere agent, (ante, 420,) and is made responsible accordingly.

Damage to goods by the way.-The undertaker of the work of carrying goods for hire is responsible, in common with all workmen to whom goods and chattels have been bailed as accessorial to their work and the earning of their hire, for all injuries that may result to the subject matter of the bailment from the negligent and unskilful execution of the work. He impliedly undertakes to provide a seaworthy ship or vessel suitably equipped and manned for the voyage, (e) and is, by the very nature of his contract, bound, not only to carry, but to carry safely; i. e. he impliedly undertakes that the work of carrying shall be so conducted by him and his servants that the goods shall not be injured by him or them in the performance of the work, and when goods have been damaged during the execution of the work of carrying, the law presumes against the undertaker of the work, and attributes the damage to his neglect and want

(b) Leslie v. Wilson, 6 Moore, 429; 3 B. & B. 171, s. c. Fletcher v. Braddick, 5 B. & P. 186. Fenton v. Dublin Steam Packet Company, 8 Ad. & E. 843; 1 P. & D. 103, s. c.

(c) Ante, 402-404. Gosling v. Higgins, 1 Campb. 451; Cas. temp. Hardwick, 195. Ellis v. Turner, 8 T. R. 533. Smith v. Shepherd, Abbott, 338. Boson v. Sandford, 1

Show. 104; 3 Mod. 322; Lev. 258.

(d) Ante, 416-420. Morse v. Slue, 1 Ventr. 190, 238. Cavanagh v. Such, 1 Pr. 337. Williams v. Cranston, 2 Stark. 82.

(e) Contrahentes cum magistro habent electionem agendi vel contra magistrum vel contra dominum navis in solidum. Roccus de Nav., n. 27.