Law of Contract. Common Carriers Last updated 18-Jan-2015

All persons in public service carrying goods for hire, as masters and owners of ships, lightermen, stage-coachmen, and such like, come under the denomination of common carriers. With respect to owners of ships, where there is a charterparty, by terms of which the possession of the vessel does not pass to the charterer, but continues in the owners, the latter are to be deemed the carriers; but where possession is transferred by the charterparty, and the charterers employ their vessel in carrying under bills of lading or otherwise, the goods of different merchants, they resemble the owners of a seeking or general ship, and are considered in law common carriers.
A treatise on the liabilities and rights of common carriers, J.F. Jones.

Liability and limitation of liability of common carriers.

Common carrier’s duties and obligations are at the root of many if not all fundamental principles of carriage of the goods by sea. However, originally, these duties were simply those of bailees in general, coupled with the liabilities attached to the exercise of a public calling and were not peculiar to common carriers only but were regarded as the custom of law of common hoymen, or lightermen, etc., according to the business of the party concerned. However, by the end of the eighteenth century the notion was evidently gaining ground that the liability of common carriers for loss of goods, whatever the cause of the loss might be, arose from a special principle peculiar to them and not applicable to bailees in general.

In Coggs v Bernard (1703) 2 Ld Raym 909 Holt CJ classified common carriers as falling under the fifth sort of bailment – locatio operis faciendi and thus being "bound to answer for the goods at all events … but acts of God and the enemies of the king". His Lordship based his conclusion on the ground of public policy, explaining that:

For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c, and yet doing it in such a clandestine manner as would not be possible to be discovered.

Thus liability of common carriers crystallised into one of an absolute duty to deliver the goods he undertook to carry and was settled when it received firm approval of Lord Mansfield in Forward v Pittard(1785) 1 T.R. 27:

But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer … To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier,…
Lord Mansfield in Forward v Pittard (1785) 1 T.R. 27

In other words common carriers stand in situation of insurers of the goods, not only against the disappearance or destruction, but against all forms of damage to the goods except few limitations mentioned above. But even these defences are not available for him when loss or damage occasioned by his negligence, even though an act of God or act of the Queen’s enemies conduces to the loss. Thus, bailee in general will be liable if he fails to take reasonable care of the goods while they were in its custody.

… it appears that the carrier would not have been excused, though the accident was occasioned by the act of God, if his temerity or negligence had involved him in it…
A treatise on the liabilities and rights of common carriers, J.F. Jones, 1827, at p.17
…the carrier is bound to do his utmost to protect goods committed to his charge from loss or damage, and if he fails therein he becomes liable from the nature of his contract. …If by his default in omitting to take the necessary care loss or damage ensues, he remains responsible, though the so-called act of God may have been the immediate cause of the mischief.
Per Cockburn, C. J. in Nugent v Smith (1876), 1 CPD 423

While common law recognises that land carriers could be either common carriers or carriers for reward, but with sea carriers it is doubtful that such distinction exists. The latest authority on this matter is a statement of Lord Wright in Paterson Steamships Ltd v Canadian Co-operative Wheat Producers Ltd [1934] A.C. 538, which seems to be in agreement with view of Brett J in Liver Alkali Co v Johnson (1872) LR 7 Exch 267 (affd (1874) LR 9 Exch 338), that all carriers by sea were subject to the liabilities of a common carrier, even if they were not in fact a common carrier. His Lordship said at pp.544-545:

It will therefore be convenient here to state in very summary form the simplest principles which determine the obligations attaching to a carrier of goods by sea or water. At common law, he was called an insurer, that is he was absolutely responsible for delivering in like order and condition at the destination the goods bailed to him for carriage. He could avoid liability for loss or damage only by showing that the loss was due to the act of God and the King’s enemies. But it became the practice for the carrier to stipulate that for loss due to various specified contingencies or perils he should not be liable: the list of these specific excepted perils grew as time went on. That practice, however, brought into view two separate aspects of the sea carrier’s duty which it had not been material to consider when his obligation to deliver was treated as absolute. It was recognized that his overriding obligations might be analysed into special duty to exercise due care and skill in relation to the carriage of the goods and a special duty to furnish a ship that was fit for the adventure at its inception. These have been described as fundamental undertakings, or implied obligations.

Although there is a doubt whether a sound rule of public policy which imposed a special responsibility upon common carriers ever existed, this question is of academic interest only. . This development has greatly undermined any difference between common (public) and private carriers, but actually has its roots far back into beginning of the nineteenth century when Lord Ellenborough said:

…carriers are deemed fully competent to limit their own responsibility by special contracts, therefore in modern practice both land and sea carriers are well equipped with sets of standard forms of contracts of carriage limiting their liability to the level they choose to accept. Unlike the common carrier of goods, the carrier of passengers is held liable only for the results of its negligence.

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