THE

NAUTICAL MAGAZINE.

VOLUME XLIV.-No. I.

JANUARY, 1875.

OUR ANNUAL ADDRESS.

N presenting our annual address to our readers, we have to state that, this day, the old Nautical enters on the fortyfourth year of its existence. With its age, it is to us satisfactory to be in a position also to state that its use and

circulation have concurrently increased.

In addition to the dissemination of our views on political economy, we may remind our readers that one of the chief objects for which our Magazine was incorporated is the diffusion of trustworthy information affecting safe navigation. The care with which our hydrographic notices, and other official information are compiled, will, we think, render any observation on our part superfluous. The necessity for encouraging useful inventions, as aids to navigation, has not been, and will not be, lost sight of, for we quite recognise the value of a medium like the Nautical Magazine for making such things known for the benefit of the world at large.

With every confidence we once again appeal for continued support from the community which has already supported us so well.

We have, as our readers well know, never found ourselves able to plunge into the stream of popularity, but have held our own views, founding them as we believed on truth and justice, totally regardless whether the masses accepted them or not, so long as we have been persuaded that the thinking part of the community, interested in ships and shipping, has supported us. There is no doubt that had we floated with the stream of popular sentiment, and been carried away with the tide of enthusiasm, we might have drifted into a course of policy which would

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have pleased the masses better than the one we have pursued; but the fact has always been kept before us that mere popularity is inevitably associated with a departure from sound principle, and we have preferred the prospective satisfaction which comes from advocating solid truths, in preference to the applause of the general public for taking up the cause of blind enthusiasm.

In the articles which have appeared in our pages, we have always endeavoured to present views that in themselves are likely to tend to the public good; at times our articles have been misunderstood and misappreciated, but that they were nevertheless right and were wholly in the direction of personal responsibility and in the spirit of our British national character, the only direction in which thoroughly English literature ought to be written, subsequent events and subsequent legislation have fully proved. In the full belief that our policy is sound, we shall continue to exert our influence against the assumption by the State of the rights, duties, and responsibilities of the individual, while we shall at the same time endeavour to prove that the commerce of Britain, as well as the safety of the individual, are only to be upheld and secured by holding every shipowner, master, and seaman, responsible for such of his personal acts as may tend to jeopardise the one or the other.

SEA RISK.

HE extent to which carriers ought to be held accountable for the safety of property while in their possession, has always been a question of great importance and is now especially so, as the carrying trade has attained great proportions and is becoming daily more extensive. Still, much misconception seems to prevail as to how far carriers' liability in general extends; and much difference of opinion exists whether their responsibility should be increased or diminished; a misconception and difference of view exists, probably due to the fact, that the different conditions under which the various branches of the carrying trade are conducted, are not invariably distinguished: and, consequently, it is not always perceived, that what may be reasonable in one case, is not necessarily so in another.

Now, although the term "carrier" is a comprehensive one, and includes a number of persons differing widely as to the manner of conducting, and as to the extent of, their trade; yet (in this country at least) two classes of carriers practically divide this business between them, and therefore

"liability questions" of any moment may be said to affect them only, and these carriers are shipowners and railway companies. Laying aside then the consideration of all other carriers, the several positions of these two classes will be examined, and in the following way.

An account will be given of the manner in which the Legislature has respectively acted towards shipowners, and railway companies, and a statement will be made showing what the laws regarding carriage by sea and carriage by rail actually are. The peculiar position occupied by shipowners will be shown, that it is different from that in which any other carrier is placed, and that for this reason they have obtained a certain amount of protection, and are not hindered from protecting themselves against claims for which they would be otherwise liable; and then, the reasonableness of this being admitted, it will fairly follow that a railway company, being authorised by law to own ships, should have the shipowners rights and immunities, and that it is unjust, and contrary to common sense to hold a railway company employing a shipowner and acting as an agent or shipbroker for the owner of the traffic, liable for the damage which may happen to it while in the hands of the shipowner, and for which the shipowner is not accountable.

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Before proceeding, a distinction not always remembered must be pointed out, and that is the common law distinction between a common and a "private" carrier, the former being one whose professed or recognised occupation is that of a carrier, and who as such is bound to carry, and to carry safely, the property tendered to him. Loss caused by the act of God and the King's enemies only excepted. The latter is one who carries on an occasion if he pleases, and, consequently, on his own terms, his own gross negligence or fault excepted. But the common carrier, unless debarred by special legislation, is not precluded from giving a notice disclaiming liability, and, by so doing, placing himself in the position of a private, or special carrier for hire. Thus, a common carrier who, before he accepts goods from their owner, gives him a notice disclaiming liability in respect to them, which notice is not repudiated, becomes, in regard to these particular goods, a private carrier for hire. This difference is important, and it follows that, as a shipowner is a common carrier, he can avail himself of the special carrier's right, no statutory provision to the contrary existing.

From a comparatively remote period, the intimate connexion between the prosperity of the shipping trade and that of the country, has been recognised; nevertheless, until the early part of the last century, shipowners, as common carriers, were, in event of accident, liable without any limitation either to the shipper of goods or to any person suffering loss from some cause traceable to the shipowner. An Act was then passed which, after reciting the great consequence and importance of

promoting the increase in the number of ships, and preventing discouragement to merchants interested in them, provided, that no shipowner should be liable for loss "by reason of any embezzlement by the master or mariners" of any merchandize put on board the vessel, "or for any damages or forfeiture done or incurred by the master or mariners without the shipowner's privity of knowledge, further than the value of the ship, all her appurtenances, and the full amount of the freight to grow due for and during the voyage. The law remained unaltered until the year 1786, when by an Act the preamble of which gave similar reasons to those stated in the former Act, why a change in the law was required, and recited in addition that discouragement to persons from being interested in ships was likely to happen on account of the responsibility to which they are exposed, notwithstanding the "salutary intention" of the former Act. It was accordingly established that shipowners were not to be held liable for any loss by robbery of merchandize shipped on board their vessels, or for damages or forfeiture, provided such were done or incurred without the owner's connivance, further than the value of the ship, her appurtenances and freight. This Act provided that shipowners were not to be liable for damage done to goods by fire, nor for loss of gold, silver, jewels, &c., unless their value was declared at the time of shipment and additional freight paid. These Acts were amended by an Act passed in 1818, which limited a shipowner's liability for all loss or damage caused by any Act or neglect (the owner's excepted) to merchandize on board his ship, or to any other ship and its cargo, to the value of the ship causing the loss and her freight for the voyage. No further alteration took place until 1854, when, by the Merchant Shipping Act, the former Acts were repealed, and the shipowners total immunity from liability for damages arising from fire, or from robbery of valuables, the value not having been declared, was confirmed, and in event of liability for loss of life or personal injury to a person, or loss of or damage to merchandize carried in his ship, or loss of life, or personal injury to a person, or loss of or damage to merchandize carried in another ship, the damages incurred were not to exceed in amount the value of the ship in fault, provided, however, that in no case should the ship's value, when loss of life or personal injury occurred, be taken at less than £15 per registered ton. An amending Act was passed some years subsequently which fixes this liability at £15 per ton if loss of life or personal injury occurs either alone or together with loss of merchandize, and if loss of life does not occur, to a maximum of £8 per ton of the ship's registered tonnage, and this is the present state of the law. But the shipowner's right of receiving traffic for carriage on their own terms, and so freeing themselves from all liability in connexion with it, has not been in any way interfered with.

Having thus stated how shipowners are circumstanced as to liability, the position of railway carriers will be considered. The first Act affecting them, although not passed with that intention, but now held to affect them in their capacity of common carriers, is that known as the Carriers' Act, which frees common carriers from liability for loss of packages containing gold, silver, or valuable articles above the value of £10, unless their value is declared at the time of delivery, and an additional freight paid. In case, however, the loss is proved to have arisen through the felonious act of the carriers' servants no protection is afforded, and the carrier is held liable.

Until the year 1854, railway companies appear to have been viewed in regard to liability, as any other land carrier. The Railway Companies Consolidation Act expressly stated that railway companies were not to be held liable to a greater extent than common carriers, but should be entitled to the benefit of every protection and privilege that the latter had. In the year above referred to the Railway and Canal Traffic Act was passed, and by the seventh section railway companies were made liable for any loss of, or injury done to, any traffic carried by them, and caused by the company's or their servants' neglect or default, and all notices and conditions given by the company to limit such liability were declared void. This section, however, allowed companies to make any other conditions as to forwarding of traffic that a court or judge before whom any question relating to such conditions may be decided should deem just and reasonable; it also confirmed the application of the Carriers' Act to railway companies; and further it declared that companies were not to be liable for damage done to live stock beyond a certain amount per head according to kind, unless the value was declared at the time of delivery, so as to allow an increased rate to be charged, and, lastly, it provided, that a special contract would not bind the party who delivered the goods unless it were signed by him.

Thus it appears that as regards their several liabilities a like course of legislation has not been adopted in dealing with the two chief classes of carriers-viz., shipowners and railway companies, or in other words liability as common carriers towards consignors of traffic, and liability as individuals towards individuals injured is not the same in the case of shipowners as it is in the case of railways. For the reason already stated, as well as for others to be given hereafter, all the statutes passed in reference to shipowners have either exempted them altogether as common carriers from liability for loss or injury to traffic carried in ships, or have fixed an aggregate amount of damages to be recoverable when liability attaches, but whilst conferring these advantages in exemption from and limitation of liability, the statutes have in no way interfered with the common law rights of shipowners of becoming special carriers,