as said ship should remain in the river Thames” (2 Keb. 866); “to keep safely [goods shipped to be carried from London beyond sea] without loss or subtraction, ita quodpro defectu of them they may not come to any damage” (1 Vent. 190); “to keep safely goods delivered to them to carry, dangers [193] of the sea excepted” (2 Levinz, 69; the exception last was perhaps drawn by the reporter from the usual bills of lading referred to in argument).  The second count, which is usually overlooked, was a special count “on delivery and being stolen by his neglect.” 1

The case was twice argued, and all the reports agree, as far as they go, in their statements of the points insisted on.

Holt, for the plaintiff, maintained:  2 1.  That the master receives goods generally, citing Southcote’s Case, and that in “only guardian in socage who hath the custody by law, who factor who is servant at the master’s dispose, and so cannot take care, are exempt.” 2.  That the master has a reward for his keeping, and is therefore a proper person to be sued. 3.  That the master has a remedy over, citing the case of the Marshal of the King’s Bench. 3 That the mischief would be great if the master were not liable, as merchants put their trust in him, and no particular default be shown, as appears by the bill of lading, and, finally, that neglect appeared.

On the other side, it was urged that no neglect was found, and that the master was only a servant; so that, if any one was liable, the owners were. 4 It was also suggested that, as there would have been no liability if the goods had been taken at sea, when the case would have within the admiralty law, it was absurd that a different rule should govern the beginning of the voyage from would have governed the rest of it. 5

[194] On the second argument, it was again maintained for the plaintiff that the defendant was liable “at the common law on the general bailment,” citing Southcote’s Case, and also that, by the Roman and maritime law, he was liable as a public carrier and master of a ship.

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