might underlie a common law rule can also be found in the pages of texts
describing or commenting on the common law rule.
Moreover, common law being the older source of law, deals with fundamental
regulation where at least the basic policy is obvious, so much so that it is often
a matter of common sense and almost common knowledge. For example, the
purpose of criminal law in the first instance is to deter people from committing
an offence. If a person does commit an offence and is jailed, the punishment is
intended to deter others, to restrain the commission of offences for the
duration of imprisonment and to aim for rehabilitation of the offender.
A good illustration of interpreting common law comes from a rule of admiralty
law. This rule imposes absolute liability on shipowners for loss of cargoes if
unseaworthiness of the ship caused the loss. In the case of The TJ Hooper the
ship lost its cargo due to a storm. It was not carrying a radio receiver so it did
not receive weather reports and forecasts.
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Had it been able to do so, it
would have been able to respond to the warning of bad weather and to have
taken action that would have avoided loss of the cargo. Thus the question was
the meaning of “unseaworthiness”? Is a ship that is not carrying a radio
unseaworthy because it cannot receive weather reports?
In this case the court held that the ship was unseaworthy. The reasoning was
that radios had now become popular (and therefore known) and not too
expensive. It would be clear to those who owned and commanded the ship
that a radio report of impending bad weather would enable the ship to take
evasive or precautionary action in the face of bad weather that was possibly
impending. This would materially increase the safety of any voyage. By this
means possession and use of a radio made a ship seaworthy. Conversely,
absence of a radio amounted to unseaworthiness with regard to the law of
admiralty.
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The TJ Hooper 60 F.2d 737 (2nd cir, 1932)
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