Page:Federal Reporter, 1st Series, Volume 5.djvu/650

<J38 FEDERAL REPORTER. �■ant's liability ; and it does not seem to have appeared in that case, as it does here, that it was no part of the defendant's business to transport the goods of others. In that case, it was the opinion of Brett, J., that the defendant could not be held liable as a common carrier, and he fiays the defendant therein carried on business like any other owner of ships or vessels, which is by no means this case. In the present case the defendant did not hold himself out as ready to transport the goods of others. The proof is that he did no more than to use his soows in his own business, or to let them to others to be used in their business, �Upon the facts of this case, I am, therefore, of the opinion that the defendant's occupation was not that of a common carrier, and that his relation to the chalk in question was simply that of bailee for hire. This being so, in the absence of negh'gence he is not liable for the loss in question, unless it be also held here, as was held in Nugenty. Smith, 3 Asp. M. L. G. 87, that every ship-owner who carries goods on board his ship for hire, is, in the absence of express stipulation to the contrary, byreason of his acceptance of the goods, liable as an insurer, except as against the act of God or the public enemy. �The same position was taken by Brett, J., in the Liver Alkali Works v. Johnson, 2 Asp. M. L. G. 337, but it does not seem to have been the opinion of the court in that case ; and upon the appeal in Nugent v. Smith it was distinctly, and I think successfully, challenged by the chief justice. 3 Asp, M. L. G. 198. No American case that I know of bas so extended the rule applicable to common carriers ; and I think it will be found impossible to apply so rigorous a rule to the transportation business of this country. �Upon these grounds I am opinion that the libel must be dismissed. ����