Carriers by Sea, Innkeepers and Stablekeepers
Finally, special liability was imposed on carriers by sea,[2749] innkeepers and stablekeepers for theft of or damage to goods in their care or on their premises (or, in the case of carriers by sea, the ship).
This was in fact subject to two overlapping regimes, one of which is contractual rather than quasi-delictual, but which is dealt with here as a complete picture of the situation cannot otherwise be given.[2750](1) Quasi-Delictual Liability
First, carriers by sea, innkeepers and stablekeepers were of course liable for thefts committed by themselves, but also for thefts committed by the members of the ship's crew,[2751] staff of the inn or stable, or permanent residents of the inn.[2752] This, said Justinian, was quasi-delictual because the party held liable might not be personally responsible for the theft, but was nonetheless ‘in a sense guilty of fault for having used the services of bad people'.[2753] This then is another example of vicarious liability. This liability did not extend to thefts by passengers on a ship or passing travellers at an inn or stable.[2754] Liability was for double the value of the property stolen.[2755]
(2) Edictal Liability for Receptum
The second ground of liability here is derived from a provision in the praetor's edict: ‘The praetor says: “I will give an action against ships' masters, innkeepers and stablekeepers in respect of what they have received and undertaken to keep safe.”'[2756] Here liability was strict: the carrier, innkeeper or stablekeeper would be liable for theft or damage,[2757] by whichever person it was committed.[2758] Thus, liability extended to the acts of passengers on ships and passing travellers in the cases of inns and stables.[2759] Absence of personal fault on the part of the carrier, innkeeper or stablekeeper was no defence; only unforeseeable events or superior force, such as a shipwreck or an attack by pirates, would absolve the defender.[2760]
With this edictal liability, then, the carrier, innkeeper or stablekeeper was held responsible for a broader range of wrongdoers than with the quasi-delictual liability, as well as being responsible for damage as well as theft.
Did the edictal liability then render the quasi-delictual liability redundant? The answer is that it did not, because the edictal liability was in another respect much more limited in scope. The key is in the words of the edict itself: carriers, innkeepers and stablekeepers were liable ‘in respect of what they have received and undertaken to keep safe'. In other words, for edictal liability, it was not enough just that the stolen or damaged property was on the ship or in the inn or stable. Instead, the carrier, innkeeper or stablekeeper had to have made an undertaking, in the course of business,[2761] to keep it safe. In other words, this was a form of contractual liability; specifically, we are concerned here with receptum, one of the innominate contracts considered in Chapter 21.[2762] As such, liability could be excluded at the outset by agreement.[2763] The carrier, innkeeper or stablekeeper would only be liable if the property had been entrusted to the care of someone in a position of authority. Thus, on a ship, it would not be enough to entrust the property to an ordinary sailor, unless the captain had directed this to be done.[2764](3) Summary
Taken together, then, the result of these grounds of liability is the following:
• The carrier, innkeeper or stablekeeper was liable for thefts committed by employees and, in the case of an inn, permanent residents.
• If the carrier, innkeeper or stablekeeper had actually accepted responsibility for an item of property, strict liability was imposed for any theft of or damage to that property, even where the theft or damage was carried out by a passenger of a ship or a passing traveller using a stable or inn.
(4) Carriers, Innkeepers and Stablekeepers in Modern Law There can be no doubt that this form of liability was received in Scots law.[2765] Thus, for example, in Mustard v Paterson[2766] a stablekeeper was held strictly liable for injury to a horse entrusted to his care, unless he could show that it was the result of ‘inevitable accident, or from the action of the King's enemies'.[2767] Equally, carriers by sea are liable in the same way.
Indeed, liability has been extended to carriers by land,[2768] as long as they fall into the category of ‘common carrier'.[2769]Most of the case law on this form of liability is concerned with innkeepers. From the authorities on innkeepers' liability, it appears that the two grounds of liability in Roman law — receptum and quasi-delict — have in Scots law been merged into a single ground of liability.[2770] Thus, in Scott v Yates,[2771] an innkeeper was held liable when items were stolen from a guest, even though the items in question had not been entrusted to the innkeeper's care. In Williamson v White,[2772] [2773] [2774] the innkeeper was held liable even though the parcel from which money was later stolen was handed to a member of staff rather than to the innkeeper personally. There has been some question as to whether lodging houses are inns for these purposes. It was held that they were inns in May v Wingate51 and WatlingvMcDowall56 although in the latter case the fact of the theft being committed by a housebreaker was held to constitute vis maior (‘superior force') excluding liability. By statute, this liability is now excluded as far as innkeepers are concerned unless the establishment is a hotel within the meaning of the Hotel Proprietors Act 1956.59 In Drake v Dow,60 it was held that a bed and breakfast establishment was not an inn, but that was partly on the basis of a concession by the pursuer that it was not a hotel within the meaning of the 1956 Act.61