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Lloyd's Maritime and Commercial Law Quarterly

THE COMMON LAW LIABILITY OF A PUBLIC CARRIER BY SEA D. Barry Kirkham of Messrs. Owen, Bird, Barristers and Solicitors, Vancouver, B.C . The purpose of this article is to discuss the question whether a public carrier by sea, not being a common carrier, is at common law an insurer of cargo or whether the carrier is simply bound to exercise reasonable care 1 . While it will undoubtedly be surprising to many, despite hundreds of years of English jurisprudence relating to contracts of ocean carriage, the point has not yet been finally settled. This is probably attributable to the fact that the common law liability of a public carrier by sea is irrelevant in most cases either because of issuance of a bill of lading, bringing the contract under The Hague Rules, or because of the existence of a specific contract between shipper and shipowner precisely defining the owner’s liability. (The ship-owner’s common law liability could, of course, always be modified or eliminated by express terms in the contract of carriage). Nonetheless, the point is still of importance where neither a bill of lading nor fully detailed contract exists. For instance, on the West Coast of Canada a number of small tug companies, cumulatively fulfilling an important role in the commerce of British Columbia, operate on the basis of completely oral agreements. This situation undoubtedly exists elsewhere. First, a matter of definition. A “common” carrier must as a matter of law carry the goods of everyone on a first come, first served basis. A refusal is actionable. He is an insurer of cargo. A “private” carrier does not hold himself out to the public at all, but rather enters into specific private contracts from time to time. He has a duty to exercise reasonable care in his handling of cargo but is not subject to strict liability. We are here concerned with the “public” carrier who has characteristics of both. Like the common carrier, he holds himself out to the public at large. Like the private carrier, he insists on a specific contract being entered into in each case, and therefore cannot be sued for a refusal to take any particular cargo. It is into this latter category that most carriers by sea would fall 2 . That the common law liability of a public carrier by sea remains unsettled is perhaps best demonstrated by quoting two eminent authorities who reach diametrically opposite conclusions. Carver states 3 :— “The common law, with regard to the liability of a public carrier of goods, is strict . Apart from express contract he is, with certain exceptions, absolutely responsible for the safety of the goods while they remain in his hands as a carrier. “The rule and the reason for it were first definitely given in their modern shape by Lord Holt in his celebrated judgment in Coggs v. Bernard … “The rule thus laid down with regard to masters of ships was independent of any view that they were common carriers; indeed Lord Holt distinguished them from common carriers, though he classed them among persons exercising public employment. The strict rule applied because their case was not distinguishable from that of common carriers … “The principle which appears to follow from Liver Alkali Co . v. Johnson is that there is a class of public carriers by water, such as lightermen, who carry subject to the liabilities of common carriers but who must be distinguished from them because they are not liable to indictment or action for refusing to accept goods for carriage as common carriers are, and that that class includes shipowners who let their ships under charter.” 1 It is not intended to deal with the other related obligation to furnish a seaworthy ship. If cargo is damaged because of unseaworthiness there will of course be recovery, whether reasonable care was taken or not. 2 For a rare example of a case where a carrier—a lighterman—was expressly held to be neither a common carrier nor a public carrier see Consolidated Tea Co . v. Oliver’s Wharf [1910] 2 K.B. 395; 26 T.L.R. 388. 3 Carver, “Carriage by Sea”, 12th Edition, selected excerpts from pp. 1-7. The emphasis is added, as it is in most other quotations throughout this article. 282

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