The opinion of the court was delivered by Chief Justice Hale. It
was held that, the ship being within the body of the county, the
admiralty law did not apply; or, according to 1 Mod. 85, note a,
"the master could not avail himself of the rules of the civil
law, by which masters are not chargeable pro damno fatali"; that
the master was liable to an action because he took a reward; that
"he might have made a caution for himself, which he omitting and
taking in the goods generally, he shall answer for what happens."
/1/ The case of Kenrig v. Eggleston /2/ seems also to have been
referred to. It was further said that the master was rather an
officer than a servant, and in effect received his wages from the
merchant who paid freight. Finally, on the question of
negligence, that it was not sufficient to have the usual number
of men to guard the ship, but that it was neglect not to have
enough to guard the goods, unless in case of the common enemies,
citing the case of the Marshal, which it will be remembered was
merely the principle of Southcote's Case and the common law of
bailment in another form. /3/
It will be observed that this case did not go on any special
custom, either as to common carriers or shipmasters, but that all
the arguments and the opinion of the court assumed that, if the
case was to be governed by the common law, and not by the milder
provisions of the civil [195] law relied on for the defence, and
if the defendant could be regarded as a bailee, and not merely a
servant of the owners, then the general law of bailment would
apply, and the defendant would be charged, as in Southcote's
Case, "by his general acceptance.
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