Lyon and Another against Mells
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1804 |
| Date | 19 June 1804 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 1134
IN THE COURT OF KING'S BENCH.
Explained, Chippendale v. Lancashire and Yorkshire Railway, 1869, 7 Railw. Cas. 828; Readhead v. Midland Railway, 1869, L. R. 4 Q. B. 391. Referred to, Stantin v. Richardson, 1872-74, L. R. 7 C. P. 432; 9 C. P. 390. Discussed, Liver Alkali Company v. Johnson, 1874, L./ R. 9 Ex. 342; Kopitoff v. Wilson, 1876, 1 Q. B. D. 381; Nugent v. Smith, 1876, 1 C. P. D. 432; Harris v. Great Western Railway, 1876, 1 W. B. D. 519. Applied, Seel v. State Line SS. Company, 1877, 3 App. Cas. 77; The Glenfruin, 1885, 10 P. D. 108.
[428] ly'c$n and another against mells. Tuesday, June 19th, 1804. A carrier by water contracting to carry goods for hire impliedly promises that the vessel shall be tight and fit for the purpose, and is answerable for damage arising from leakage. And this, tho' he had given notice " that he would not be" answerable for any damage unless occasioned by want of ordinary care in the master or crew of the vessel, in which case he would pay 101. per cent, upon such damage, so as the whole did net exceed the value of the vessel and freight." For a less happening by the personal default of the carrier himself (such as the not providing a sufficient vessel) is not within the scope of such notice, which was meant to exempt the carrier from losses by accident or chance, &c.; even if it were competent to a common carrier to exempt himself by a special acceptance from the responsibility cast upon him "by the common law for a reasonable reward to make good all losses not arising from the act of God, or the King's enemies. [Explained, Chippendale v. Lancashire and YorkshmjSaihvay, 1869, 7 Eailw. Gas. 828; Beadhead v. -Midland Railway, 1869, L. E. 4 Q. B. 391. Keferred to, Stantin v: Richardson, 1872-74, L. E. 7 C. P. 432; L. E. 9 C. P. 390. -Discussed, Liver Alkali ò Company v. Johnson, 1874, L. E. 9 Ex. 342; Kopito/v. Wilson, 1876, 1 Q. B. D. 381 ; Nugent v. Smith, 1876, 1 C. P. D. 432; Harris v. Great Western Railway, 1876, 1 Q. B. D. 519. Applied, Seel v. State Line SS, Company, 1877, 3 App. Gas. 77 ; . The Glenfrnin, 1885, 10 P. D, 108.] This was an action of assumpsit, brought to recover the amount of damage done to a quantity of yarn of the plaintiffs, delivered on board a lighter of the defendant's, to be carried therein from a quay at Hull to a sloop of one William Barton lying in a dock there, and to be delivered on board the same, for a reasonable reward to be paid to the defendant. The declaration stated (amongst others) a promise by the (defendant that the lighter was tight and capable of carrying the yarn; alsa a promise by him that the lighter was so far as he knew a proper and substantial vessel fit for carrying the yarn without damage; and also a promise by him to stow, load, and carry the yarn carefully, and with due attention to the same. Plea non assumpsit. On the trial before Thomson B. at the last York Assizes, a verdict was found for the plaintiffs, subject to the opinion of this Court on the following case : On the 10th of June 1802 several bales of yarn belonging to the plaintiffs were delivered on board the lighter, of which the defendant was the owner, in manner, and for the purpose above mentioned. The defendant kept sloops for carrying other persons' goods for hire, and also lighters for the purpose of carrying these goods to and from his sloops; and when he had not employment for his lighters for his own business, he let them for hire to such persons as wanted to carry goods to other sloops. Previous to the delivery the master of the defendant's lighter, when he was applied to to-fetch [429] the yarn, undertook to bring it in the lighter to the sloop; and being asked if the lighter were fit to carry it, said, it was very fit and tight, and that he had been do.wn the' day before with hemp and flax in her to some of their vessels at South End. In carrying the yarn in the lighter to the sloop the lighter leaked, and some of the bales of yarn were thereby wetted and damaged; and on the arrival of the lighter at the sloop the master of the lighter, on its being mentioned to him that he had got water in his boat, said, there was a bit of a weep (meaning a leak) abaft, Three or four of the bales of yarn were stowed upon the top of the pump, by which it was rendered entirely useless until they were removed. Before the second 5 EAST, 430. LYON V. MELLS 1135 bale of yarn could be hoisted into the sloop the lighter was going down, and would have sunk to the bottom of the dock with the rest of the bales, but was prevented by getting tackle fixed to her to get her up. The damage thereby done to the yarn amounted to 2741. 16s. 4d. The lighter was not tight and sufficient for the carriage of the yarn, but was leaky: and the master of the lighter was guilty of negligence in not stowing the yarn properly. Previous to the shipping of the yarn on...
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