dissenting:
It has long been recognized that “courts of admiralty are not governed by the strict rules of the common law, but act upon enlarged principles of equity.” O’Brien v. Miller, 168 U. S. 287, 297. Where, as here, the result of a case in admiralty is made to turn upon the distinction between a common and private carrier, one may well ask whether more respect has been paid to technical niceties of the common law than befits the admiralty *115tradition. Cf. The Confiscation Cases, 20 Wall. 92, 105-106, 107. I do not deny that in many situations the distinction may be important nor that legislatures and courts may be compelled from time to time to resurvey the changing line of separation. But here, I am convinced, the distinction is irrelevant to a just disposition of the case before us.
In the opinion just announced, the burden of proving seaworthiness is tied up with a common carrier’s obligations as an insurer. But in Schnell v. The Vallescura, 293 U. S. 296, although the defendant was a common carrier on whom it was held such a burden lies, no suggestion that the Court rested its result upon the peculiar obligation of the defendant as an insurer can be found in the opinion. And so far as appears from the briefs and arguments of counsel as well as the majority opinion here, it would seem that this Court has never before given the insurer’s liability of common carriers as the reason for the heavy burden of proof they bear in admiralty cases of this type. On the contrary, the basis usually given for the rule is the one explicitly stated in Schnell v. The Vallescura, supra, at page 304:
“The reason for the rule is apparent. He is a bailee entrusted with the shipper’s goods, with respect to the care and safe delivery of which the law imposes upon him an extraordinary duty. Discharge of the duty is peculiarly within his control. All the facts and circumstances upon which he may rely to relieve him of that duty are peculiarly within his knowledge and usually unknown to the shipper. In consequence, the law casts upon him the burden of the loss which he cannot explain or, explaining, bring within the exceptional case in which he is relieved from liability.”
It is difficult to see any persuasive reason for concluding that the rule as thus explained is any less appropriately applied to private carriers than to common *116carriers. In both cases the shipper normally has no representative on board the ship, the master and crew being employees of the carrier, with the result that the difficulties encountered by the shipper in seeking to find out how the loss occurred are equally great. See Carver, Carriage of Goods by Sea (8th ed.) 9.
I have found no language in the opinions of this Court, in cases holding the burden of proof of seaworthiness rests on a common carrier, that even suggests, not to say compels, the inference that a different result would have been reached if the carrier had been a private one. Hence, if the question of this case were one of original impression, I should see no obstacle to a holding that would give tp the shipper here, who clearly had no easier access to evidence than did the shipper in the V allescur a case, the benefits of a similar allocation of the burden of proof.
But the question is not one of. original impression. In The Edwin I. Morrison, 153 U. S. 199, this Court held that the burden was on a private carrier to prove seaworthiness in a controversy distinguishable in no significant respect from that now before us. The opinion of the Court here has suggested that the finding by the Circuit Court in the Morrison case that the bill of lading stated that the carrier would deliver the shipment “in good order and condition” amounted to a finding that the carrier had by contract assumed additional obligations, i. e., those of a common carrier. Hence, the Court sees in that decision nothing more than the reiteration of the proposition that a common carrier has the burden of proving seaworthiness and finds in it no indication of what the burden of a private carrier should be.
It may seriously be questioned whether the finding that the bill of'lading contained the casual phrase just quoted can properly be interpreted as a finding of a contract to assume the peculiar liabilities (whatever they may have *117been) of a common carrier. But even on the assumption that the Court’s interpretation of the finding is correct, its interpretation of the basis of decision in the Morrison case seems clearly erroneous. Nowhere in that opinion is there the smallest suggestion that the carrier was regarded as having bargained itself into a position of special liability. If the Court had believed a distinction must be made between private and common carriers, I should suppose it would have been explicit in stating that this carrier, although a private carrier, had assumed the obligations of a common carrier by contract. I think it inconceivable that it would have left a fact of such significance to be deduced from an inconspicuous phrase in the findings of the Circuit Court set out in a footnote to the “Statement of the Case” seven pages before the opinion itself begins. The Edwin I. Morrison, supra, 203, n. 1.
In The Lottawanna, 21 Wall. 558, 571, Mr. Justice Bradley stated: “If . . . with the new lights that have been thrown upon the whole subject of maritime law and admiralty jurisdiction, a more rational view of the question demands an adverse ruling in order to preserve harmony and logical consistency in the general system, the court might, perhaps, if no evil consequences of a glaring character were likely to ensue, feel constrained to adopt it. But if no such necessity exists, we ought not to permit any consideration of mere expediency or love of scientific completeness, to draw us into a substantial change of the received law.” In the “received law” of this Court, at least since 1894, when the Morrison case was decided, no distinction has been drawn between private and common carriers with reference to the burden of proving seaworthiness. If such a distinction had existed, the “new lights” shed by the awareness of ever increasing complexity in modem shipping, a complexity equally incomprehensible to the shipper whether he deals with a private or common carrier, could, perhaps not without propriety, have been taken by this Court as a reason for erasing it. But the contrary proce*118dure, of establishing a distinction which neither was present in our received law nor is demanded “to preserve harmony and logical consistency,” seems wholly unjustifiable.
Accordingly, it is my opinion that the judgment below should be reversed.
Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Byrnes concur in this opinion.