The Common Law [77]
to extend to many kinds of damage, it became necessary, in a general discussion, to reconcile or elect between the two principles.
The Chief Justice therefore proceeded to distinguish between [198] bailees for reward exercising a public employment, such as common carriers, common hoymen, masters of ships, &c., and other bailees; denied the rule in Southcote's Case as to the latter; said that the principle of strict responsibility was confined to the former class, and was applied to them on grounds of public policy, and that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by himself in arguing Morse v. Slue), but because they were not within the reason of the rule.
The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if required.
In the first place, as we have seen, there was a century of precedents ending with Morse v. Slue, argued by Holt himself, in which the liability of masters of ships, hoymen, carriers, &c. had been adjudicated. Morse v. Slue is cited and relied on, and there is no hint of dissatisfaction with the other cases. On the contrary, they furnished the examples of bailees for reward exercising a public calling. The distinction between bailees for reward and others is Chief Justice Popham's; the latter qualification (exercising a public calling) was also English, as has partly appeared already, and as will be explained further on.
In the next place, the strict rule is not confined to nautae, caupones, and stabularii, nor even to common carriers; but is applied to all bailees for reward, exercising a public calling.
In the next place, the degree of responsibility is precisely that of bailees in general, as worked out by the previous decisions; but quite unlike and much more severe [199] than that imposed by the Roman law, as others have observed. /1/
And, finally, the exemption from liability for acts of God or the public enemy is characteristically English, as will be proved further on.
But it has been partially shown in this Lecture that the law of to-day has made the carrier's burden heavier than it was in the time of the Year Books. Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over. It was with reference to such cases, as has been seen, that the rule arose, although it is not improbable that it would have been applied to an unexplained loss; the writ against innkeepers reads absque subtractionie seu amissione custodire. In later times, the principle may have been extended from loss by theft to loss by destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited as decided on the authority of Southcote's Case, the goods were spoiled, not stolen, and probably had not even perished in specie. Before this time, the old rule had become an arbitrary precedent, followed according to its form with little thought of its true intent.
The language of Coggs v. Bernard is, that "the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king." This was adopted by solemn decision in Lord Mansfield's time, and it is now settled that the common carrier "is liable for all losses which do not fall within the excepted [200] cases." /1/ That is to say, he has become an insurer to that extent, not only against the disappearance or destruction, but against all forms of damage to the goods except as excepted above.
The process by which this came to pass has been traced above, but a few words may be added here. The Year Books, even in dealing with the destruction (as distinguished from the conversion) of chattels in the hands of a bailee, always state his liability as based upon his fault, although it must be admitted that the language is used alio intuitu. /2/ A jettison, in tempest, seems to have been a good plea
The Chief Justice therefore proceeded to distinguish between [198] bailees for reward exercising a public employment, such as common carriers, common hoymen, masters of ships, &c., and other bailees; denied the rule in Southcote's Case as to the latter; said that the principle of strict responsibility was confined to the former class, and was applied to them on grounds of public policy, and that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by himself in arguing Morse v. Slue), but because they were not within the reason of the rule.
The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if required.
In the first place, as we have seen, there was a century of precedents ending with Morse v. Slue, argued by Holt himself, in which the liability of masters of ships, hoymen, carriers, &c. had been adjudicated. Morse v. Slue is cited and relied on, and there is no hint of dissatisfaction with the other cases. On the contrary, they furnished the examples of bailees for reward exercising a public calling. The distinction between bailees for reward and others is Chief Justice Popham's; the latter qualification (exercising a public calling) was also English, as has partly appeared already, and as will be explained further on.
In the next place, the strict rule is not confined to nautae, caupones, and stabularii, nor even to common carriers; but is applied to all bailees for reward, exercising a public calling.
In the next place, the degree of responsibility is precisely that of bailees in general, as worked out by the previous decisions; but quite unlike and much more severe [199] than that imposed by the Roman law, as others have observed. /1/
And, finally, the exemption from liability for acts of God or the public enemy is characteristically English, as will be proved further on.
But it has been partially shown in this Lecture that the law of to-day has made the carrier's burden heavier than it was in the time of the Year Books. Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over. It was with reference to such cases, as has been seen, that the rule arose, although it is not improbable that it would have been applied to an unexplained loss; the writ against innkeepers reads absque subtractionie seu amissione custodire. In later times, the principle may have been extended from loss by theft to loss by destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited as decided on the authority of Southcote's Case, the goods were spoiled, not stolen, and probably had not even perished in specie. Before this time, the old rule had become an arbitrary precedent, followed according to its form with little thought of its true intent.
The language of Coggs v. Bernard is, that "the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king." This was adopted by solemn decision in Lord Mansfield's time, and it is now settled that the common carrier "is liable for all losses which do not fall within the excepted [200] cases." /1/ That is to say, he has become an insurer to that extent, not only against the disappearance or destruction, but against all forms of damage to the goods except as excepted above.
The process by which this came to pass has been traced above, but a few words may be added here. The Year Books, even in dealing with the destruction (as distinguished from the conversion) of chattels in the hands of a bailee, always state his liability as based upon his fault, although it must be admitted that the language is used alio intuitu. /2/ A jettison, in tempest, seems to have been a good plea