tract of affreightment exempting the vessel from liability for loss of or damage to cargo "occasioned by negligence, default, or error of judgment of the pilot, master, or mariners," stating that it has not yet been decided by any court that such a condition in a contract where the vessel is not a common carrier is contrary to public policy. The Court stated further as follows:

"The decisions which deny the validity of such stipulations proceed upon the ground that the carrier is exercising a public employment and cannot by such stipulations relax his obligations to the public. Private carriers are not subject to the exceptional or extraordinary duties and liabilities of common carriers, and they may carry for whom they choose, and for such compensation and upon such conditions of liability as may be agreed upon. The contracting parties stand upon equal terms, and can make such a contract as they think reasonable. Angell, Law of Carriers, 59."

Whether a clause in a charter party, by which the shipowner becomes a private carrier, providing for contribution by the cargo toward sacrifices, losses, or expenses incurred by the vessel in averting a common peril brought about through her negligence or unseaworthiness, would be upheld by the Courts has not yet been determined. In view, however, of the decision of the Supreme Court in the case of the Jason, a common carrier, the clause would undoubtedly be declared a valid

one.

A difficulty might arise if the charterer, as is frequently the case, had transferred the bill of lading to a third party, as it would then constitute an undertaking on the part of the vessel with the holder of it independent of and probably on conditions other than those contained in the charter party. In such case, if the clause in the charter party providing for contribution by the cargo irrespective of negligence and unseaworthiness, as above referred to, was not expressly incorporated in the bill of lading, it is difficult to see how the holder of it, a stranger to the charter party, could be held liable for contribution,

and the shipowner's remedy would apparently lie against the charterer.

A lighter hired exclusively to convey the goods of one person to a particular place for an agreed compensation was held not to be a common carrier with respect to such goods, but a private carrier and liable only as a bailee for hire. (a)

In the case of the Cape Charles (b) the Court stated that the distinction which marks a common from a private carrier is clearly defined, a common carrier being "one who openly professes to carry for hire the goods of all such persons as may choose to employ him." The Court quoted the following:

"The true test of the character of the party, as to the fact whether he is a common carrier or not, is his legal duty and obligation with reference to transportation. Is it optional with him whether he will or will not carry for all? If it is his legal duty to carry for all alike who comply with the terms as to freight, etc., then he is a common carrier, and is subject to all those stringent rules which, for wise ends, have long since been adopted and uniformly enforced, both in England and in all the States, upon common carriers." Piedmont Mfg. Co. v. Columbia, etc., R. R. Co., 19 S. C. 353; 16 Am. & Eng. R. R. Cas. 194.

"A private carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or reward." Pennewill v. Cullen, 5 Har. (Del.) 238.

The State Courts must enforce all the statutes of the United States, and it is held by these Courts in the State of New York and in some other States, in administering common or general commercial law, that specific and clear exemptions from negligence in a contract of affreightment must be enforced and sustained like any other clause in the contract.

The Federal Courts, however, until the recent decision of the Supreme Court in the case of the Jason,

(a) The Rover, Cir. Ct. of App. 161 Fed. Rep. 864 (1908). (b) The Cape Charles, Dist. Ct. N. C. 198 Fed. Rep. 346 (1912).

refused to enforce such clauses on the ground that they are opposed to public policy, except in so far as modified by the third section of the Harter Act, but their decisions on matters of common law unaffected by statute are not binding on the State Courts, nor are those of the State Courts binding on the Federal Courts, whether the latter are sitting within or without the State.

Note. On July 1, 1912, there was introduced in the Senate of the United States by Senator Nelson of Minnesota a bill (Senate Bill 7,208), generally known as the Nelson bill, the object of which is to amend the Harter Act in Sections 1, 3, and 4. The portion of the bill which, if passed, will seriously affect shipowners in the matter of general average lies in the proposed amendment to Section 3 of the Act.

This section, at present, provides that if the owner of any vessel transporting cargo to or from any port in the United States of America shall exercise due diligence to make the vessel in all respects seaworthy, etc., neither he nor the vessel shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of the vessel.

Because of this provision in the Harter Act, and on no other ground, the Supreme Court held in the Jason case that it is not against the policy of the law for a shipowner to contract with a cargo owner for "a participation in general average contribution growing out of such negligence," provided that the conditions in the Act as to due diligence in the matter of seaworthiness etc., have been complied with.

The proposed amendment to Section 3 of the Act confines its protection in respect of faults or errors in navigation or in the management of the vessel to those shipowners whose vessels are engaged in transporting cargo between ports in the United States of America, and excludes from such protection vessels, both American and foreign, trading between United States ports and foreign ports. Therefore, if the bill is passed, all shipowners whose vessels do not trade solely between ports in the United States would become responsible for damage or loss resulting from faults or errors in navigation or in their management-the general rule of law prior to the passage of the Harter Act in 1893.

The Nelson bill does not directly affect the law of general aver

age, but, if placed on the statute books, would have the effect of nullifying any provision in contracts of affreightment-except in the coastwise trade-for participation by cargo owners in a general average resulting from faults or errors in navigation or in the management of vessels, as the ground upon which the Supreme Court based its decision in the Jason case as to the validity of the General Average Agreement would no longer exist.

The bill, however, expressly exempts shipowners, whether domestic or foreign, from liability for damage or loss resulting from "latent defects in said vessel," and, therefore, an agreement for participation by cargo owners in a general average resulting from a latent defect in the vessel would undoubtedly be considered valid, provided, of course, that the conditions as to due diligence in the matter of seaworthiness had been complied with.

The bill may be debated at the present session of Congress.

CHAPTER III

YORK-ANTWERP RULES

The maritime commerce of the United States, dating from the time of separation of the Colonies from the mother country, has developed in little more than a century's growth, and the early traders, not fettered by code or laws at the outset, were free to cull from and adopt what was considered best and most serviceable in the laws, usages, or codes of the older nations to guide them in maritime matters, and the law as it exists to-day is largely founded on the experience of the older countries, fitted and adapted to the needs of this country as experience has shown to be requisite. And so it is with no little satisfaction that those engaged in or concerned with maritime affairs in the United States may look upon the work and efforts of the learned representatives of the principal maritime countries in recommending for universal adoption, in their conferences at York, Antwerp, and Liverpool, a code of rules which more nearly conforms to the customs and usages of the United States than to those of any of the older nations.

This code of rules does not deal with the whole question of general average nor change its fundamental principles, but was adapted to secure uniformity of practice and to meet some of the necessities due to modern conditions, and in order that some uncertain and disputed points might be dealt with in a particular way.

A conference of "The Association for the Reform and Codification of the Law of Nations" was held at York in 1864 and again at Antwerp in 1877 and on this