Page:Federal Reporter, 1st Series, Volume 5.djvu/649

 BELL V. PIDflEON. 637 �resist. Damage so CEmsed seems to be Biriotly analogoas to damage caused by collision resulting from faulty navigation. �In the case of collision a vessel is by negligence driven against another vessel. Here, a vessel by faalty navigation drives the water in an irresistible manner upon another vessel and so causes damage. �If such a swell as struck this scow was a necessary inci- dent of navigation in the East river, by such boats as the Sound steamers, the case might be different; but upon the evidence before me — none of -which, however, cornes from the passing steamers — ^it must be found that the creating of the dangerous swell which caused this loss could have been avoided by reasonable care on the part of the steamers. The damage in question, therefore, was caused by the negligence of man, and not by the act of God. �As no negligence on the part of the defendant or his agents bas been shown, the damage in question might no doubt be held to bave arisen from a peril of the seas, within the mean- ing of the ordinary exception of a bill of lading. But the defendant's contract contained no exception. It was an un- qualified contract to transport and deliver; and, if it was made by the defendant in the oapacity of a common carrier, his responsibility was that which the law, upon grounds of public policy, has attached to every common carrier, namely, that of an insurer against ail loss or damage, unless caused by act of God or of ' the public enemy. �The decision of the case turns, therefore, as I view it, upon the question whether the defendant was transporting this chalk in the capacity of a common carrier. "To constitute one a common carrier, he must make that a regular and con- stant business ; or, at ail events, he must for the time hold himself ready to carry for ail persons indefinitely who ohoose to employ him." Eedfield on Carriers, 15. �The case of Lyon v. Mills, 5 East, 428, is the strong- est case that I have noticed in support of the plaintiff's con- tention; but in that case the point whether the o'efendant was a common carrier or i^ot was not precisely decid*' d. The point actually decided related to a notice limiting -iefend- ����