The ship may be either a common or private carrier of goods or of passengers. In many respects carriage by water is only a subdivision of the general law of carriers and the more general principles apply as well to the ship as the railroad.
The common carrier is one who offers to carry for all who may choose to employ him. The private carrier is one who transports by virtue of a special agreement. The private carrier appears more frequently in water carriage than in land transportation. Most ships, for example, carrying bulk cargoes by special arrangement are private carriers. Most passenger ships are common carriers of passengers. Ships carrying miscellaneous or package freight, and running over regular routes, are common carriers. In general the distinction is by what they profess or offer to do,—whether to carry generally for the public, or only by special agreements.
2. Liabilities.—
The liability of a private carrier may be more closely limited by agreement than that of common carrier, but in general it will be sufficient to consider his liability as that of a shipowner carrying goods for hire. That liability is practically very stringent; he is responsible for any damage to the goods in his charge unless he can show that it was occasioned by the act of God or the public enemy, subject to two important statutes,—the Limited Liability Act (Rev. St. §§ 4282-4289, Act of June 26, 1884) elsewhere considered, and the Harter Act of February 13, 1893, 27 S. 445. Under this last mentioned statute, if the ship is actually seaworthy in all respects at the commencement of the voyage, there is no liability for losses sustained by faults or errors in her navigation or management. The general scope of the Act is to prohibit stipulations in the bill of lading which curtail the shipowner's liability for negligence in the proper loading, stowage, care or delivery of the cargo and to exempt him from the consequences of faults or errors in navigation or management if the ship was seaworthy when the voyage began. The word "management" does not include acts of preparing the ship for the voyage; and where she had reached her destination and sank while being discharged on account of her unstable condition and a broken coal port, the fault was held not to be one in her management.
3. Seaworthiness.—
A warranty of seaworthiness underlies all the relations of ship and cargo. This means, primarily, that the vessel is responsible for loss or damage to the goods if she was not in a seaworthy condition when she commenced the voyage, and if the loss would not have arisen but for that unseaworthiness. This liability may frequently involve the owner personally, as when the defect is attributable to his own fault or want of care. He is held to warrant that she is fit to carry the cargo which she loads and with it to encounter safely whatever perils may be reasonably expected to ensue and assumes liability for any defects in hull, machinery or equipment, even if not discoverable by careful examination. The ship must be fit in design, structure, condition, and equipment to encounter the ordinary perils of the voyage. This includes a competent master and a sufficient crew. The test is, of course, a relative one and depends upon the facts and circumstances involved in each particular case. A ship may be perfectly seaworthy for a particular cargo and voyage and quite unseaworthy for another. It is frequently said that the warranty does not require an absolutely perfect ship and that the true criterion is that degree of fitness which the average prudent and careful owner requires of his vessel at the commencement of the voyage, having given due consideration to all the circumstances which may reasonably be anticipated to attend it.
In the case of the Caledonia, 157 U. S. 124, it appeared that the vessel was chartered to transport cattle from Boston to Deptford. Sufficient fodder was provided for fifteen days, a longer period than the usual length of the voyage, being all the fodder customarily provided for such voyages. When nine days out from Boston in smooth water, the propeller shaft broke straight across in the stern tube. The breakage was due to weakening of the shaft in heavy seas on previous voyages. Its weakened and unfit condition existed when the vessel put to sea on the voyage under consideration, but the defect was invisible and could not have been detected by usual and reasonable means if the shaft had been taken out and examined. No negligence on the part of the owners was proven. Because of the breakage the voyage lasted twenty-five days and the cattle were put on short allowance of food. In consequence they were landed at Deptford in emaciated condition. They were sold in London on the first market day following their arrival. The shipper of the cattle sustained a loss due to their shrinkage in weight and to a fall in the market which occurred during the period of delay. Chief Justice Fuller in the opinion of the court reviewed many of the leading English and American cases, and held:
The proposition that the warranty of seaworthiness exists by implication in all contracts for sea-carriage, we do not understand to be denied; but it is insisted that the warranty is not absolute, and does not cover latent defects not ordinarily susceptible of detection. If this were so, the obligation resting on the shipowner would be, not that the ship should be fit, but, that he had honestly done his best to make her so. We cannot concur in this view.
In our opinion, the shipowner's undertaking is not merely that he will do and has done his best to make the ship fit, but that the ship is really fit to undergo the perils of the sea and other incidental risks to which she must be exposed in the course of the voyage; and, this being so, that undertaking is not discharged because the want of fitness is the result of latent defects.
The warranty of seaworthiness implies that the vessel shall be fit for the particular service in which she is to engage. A vessel intended to be used in river navigation is not required to be made fit for ocean transportation. Taking into consideration the nature of the voyage, it has been said that: