Mr. Justice Moore
delivered the opinion of the court.
It is contended that the complaint does not state facts sufficient to constitute a cause of action, in thpt the initiatory pleading is founded on the charge that the defendant was a common carrier, and hence an insurer of the property delivered to him for transportation. The plaintiffs’ counsel admit that the defendant was a private carrier, but they insist that for his failure to deliver the property in the same condition as when received, their clients had the right to elect to sue in tort for the negligence or upon contract for a breach thereof which latter remedy they pursued..
[487]*4871. A private carrier of goods is governed by the law applicable to ordinary bailees: Hutchinson, Car. (3 ed.), § 1; Van Zile, Bail. & Car. (2 ed.), § 402; 6 Cyc. 364; Collier v. Storage & Moving Co., 147 Mo. App. 700 (127 S. W. 435).
2. Where a tort has been committed with respect to the subject matter of the bailment, the bailor may either bring an action for the tort, or waive the legal wrong committed upon the property received and sue for a breach of the contract of bailment: 5 Cyc. 214; Harms v. City of New York, 69 Misc. Rep. 315 (125 N. Y. Supp. 477). Thus in Denman v. Chicago, B. & Q. R. Co., 52 Neb. 140 (71 N. W. 967), the complaint charged that pursuant to a written contract, the defendant undertook to transport from South Omaha, Nebraska, to Chicago, Illinois, 100 cattle, but did not perform the service within a reasonable time, to the plaintiff’s damage, and it was held that a party with whom a carrier had made a contract to transport his property might, in case of a breach of the agreement, elect to sue for the damages for failure to perform the public duties of a carrier, or he might waive the tort and sue for a breach of the contract.
3. In that case it would seem that the defendant was a common carrier. In the case at bar the scow having been chartered to transport the plaintiffs’ property only, the defendant as the owner of the vessel was pro hac vice not a common carrier: 1 Hutchinson, Car. (3 ed.), § 85; Varble v. Bigley, 14 Bush (Ky.), 698 (29 Am. Rep. 435); The Dan (D. C.), 40 Fed. 691; The Rokeby (D. C.) 202 Fed. 322. The complaint herein does not undertake to charge the defendant as an insurer, but as a bailee, and is sufficient for that purpose.
4. It is maintained that the testimony disclosed that [488]*488S. Verstan had an interest with the plaintiffs in the hogs that were drowned, and, not having been made a party, the complaint is insufficient in that particular. It does not appear that any exception on that ground was taken at the trial in the lower court, and, this being so, the objection of want of parties- was waived: Thompson v. Hibbs, 45 Or. 141 (76 Pac. 778.)
5. But, however this may be, the contention is without merit, for it appears from a transcript of the evidence that some time prior to their shipment these hogs had been cared for by Yerstan, who furnished their feed, and in consideration therefor was to have received the value of one third of their increase in weight in excess of 125 pounds, their assumed average when he received them from the plaintiffs. “A servant or agent,” says a text-writer, “engaged in the business and remunerated by a share of the profits in lieu of salary or other compensation for his services is not a partner”: 22 Am. & Eng. Ency. Law (2 ed.), 31.
The answer having set forth facts as a defense, predicated upon Section 3 of the Harter Act (27 U. S. Stat. 445, c. 105, U. S. Comp. Stats. 1901, p. 2946), it is argued that the loss of the hogs was a peril arising from the dangers of the Columbia River, a navigable stream, thereby relieving the defendant as the owner of the scow from all liability on account of the resulting damages, and, such being the case, an error was committed in rendering the judgment against him.
The section of the act referred to has been held applicable to vessels engaged in commerce and plying between ports of the United States: The E. A. Shores, Jr. (D. C.), 73 Fed. 432; In re Piper Aden Goodall Co. (D. C.), 86 Fed. 670; The Nettie Quill (D. C.), 124 Fed. 667. A practice sprang up in England of inserting in [489]*489contracts for transporting commodities by water a clause as follows:
“Any question arising under this bill of lading to be settled according to the laws of the flag of the vessel carrying the goods”: The Victory (D. C.), 63 Fed. 631; The Glenmavis (D. C.), 69 Fed. 472.
Most of the foreign commerce by water is carried by English vessels. Under the decisions of the courts of that country a stipulation in a bill of lading, exempting the ship and her owners from liability on account of negligence, is upheld, while such a provision is determined to be unenforceable by the courts of the United States whereby the shipping of the latter country was by such divergent procedure placed at a great disadvantage. In order to modify the relations previously existing between the vessel and her cargo, the Harter Act was adopted: The Delaware, 161 U. S. 459 (40 L. Ed. 771, 16 Sup. Ct. Rep. 516). “Plainly the main purposes of this act,” says Mr. Justice Shiras in referring to the enactment in the case of The Irrawaddy, 171 U. S. 187 (43 L. Ed. 130, 18 Sup. Ct. Rep. 831), “were to relieve the ship owner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the management of the vessel.”
6. As the design of the law was to aid ships sailing under the flag of the United States, particularly when engaged in the foreign trade, it would seem that the provisions of the enactment were applicable only to duly registered vessels. But, however this may be, it will be assumed, .in the absence of any evidence on the [490]*490subject, that the scow used iu transporting the plaintiffs’ hogs was of sufficient capacity to authorize the defendant, as the owner thereof, to interpose the defense which the Harter Act affords.
7. Under Section 9 of the Judiciary Act of September 24, 1789 (1 U. S. Stat. 76), state and federal courts have concurrent jurisdiction of causes of actions in admiralty, where only a common-law remedy in personam is sought: Bohannan v. Hammon, 42 Cal. 227; Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 223 (7 Am. Rep. 183); Brown v. Gilmore, 92 Pa. 40; Chase v. American Steamboat Co., 9 R. I. 419 (11 Am. Rep. 274); Leon v. Galceran, 78 U. S. (11 Wall.) 188 (24 L. Ed. 74); Ransberry v. North American T. & T. Co., 22 Wash. 476 (61 Pac. 154); John Meunier Gun Co. v. Lehigh Valley T. Co., 123 Wis. 143 (101 N. W. 386).
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Mr. Justice Moore
delivered the opinion of the court.
It is contended that the complaint does not state facts sufficient to constitute a cause of action, in thpt the initiatory pleading is founded on the charge that the defendant was a common carrier, and hence an insurer of the property delivered to him for transportation. The plaintiffs’ counsel admit that the defendant was a private carrier, but they insist that for his failure to deliver the property in the same condition as when received, their clients had the right to elect to sue in tort for the negligence or upon contract for a breach thereof which latter remedy they pursued..
[487]*4871. A private carrier of goods is governed by the law applicable to ordinary bailees: Hutchinson, Car. (3 ed.), § 1; Van Zile, Bail. & Car. (2 ed.), § 402; 6 Cyc. 364; Collier v. Storage & Moving Co., 147 Mo. App. 700 (127 S. W. 435).
2. Where a tort has been committed with respect to the subject matter of the bailment, the bailor may either bring an action for the tort, or waive the legal wrong committed upon the property received and sue for a breach of the contract of bailment: 5 Cyc. 214; Harms v. City of New York, 69 Misc. Rep. 315 (125 N. Y. Supp. 477). Thus in Denman v. Chicago, B. & Q. R. Co., 52 Neb. 140 (71 N. W. 967), the complaint charged that pursuant to a written contract, the defendant undertook to transport from South Omaha, Nebraska, to Chicago, Illinois, 100 cattle, but did not perform the service within a reasonable time, to the plaintiff’s damage, and it was held that a party with whom a carrier had made a contract to transport his property might, in case of a breach of the agreement, elect to sue for the damages for failure to perform the public duties of a carrier, or he might waive the tort and sue for a breach of the contract.
3. In that case it would seem that the defendant was a common carrier. In the case at bar the scow having been chartered to transport the plaintiffs’ property only, the defendant as the owner of the vessel was pro hac vice not a common carrier: 1 Hutchinson, Car. (3 ed.), § 85; Varble v. Bigley, 14 Bush (Ky.), 698 (29 Am. Rep. 435); The Dan (D. C.), 40 Fed. 691; The Rokeby (D. C.) 202 Fed. 322. The complaint herein does not undertake to charge the defendant as an insurer, but as a bailee, and is sufficient for that purpose.
4. It is maintained that the testimony disclosed that [488]*488S. Verstan had an interest with the plaintiffs in the hogs that were drowned, and, not having been made a party, the complaint is insufficient in that particular. It does not appear that any exception on that ground was taken at the trial in the lower court, and, this being so, the objection of want of parties- was waived: Thompson v. Hibbs, 45 Or. 141 (76 Pac. 778.)
5. But, however this may be, the contention is without merit, for it appears from a transcript of the evidence that some time prior to their shipment these hogs had been cared for by Yerstan, who furnished their feed, and in consideration therefor was to have received the value of one third of their increase in weight in excess of 125 pounds, their assumed average when he received them from the plaintiffs. “A servant or agent,” says a text-writer, “engaged in the business and remunerated by a share of the profits in lieu of salary or other compensation for his services is not a partner”: 22 Am. & Eng. Ency. Law (2 ed.), 31.
The answer having set forth facts as a defense, predicated upon Section 3 of the Harter Act (27 U. S. Stat. 445, c. 105, U. S. Comp. Stats. 1901, p. 2946), it is argued that the loss of the hogs was a peril arising from the dangers of the Columbia River, a navigable stream, thereby relieving the defendant as the owner of the scow from all liability on account of the resulting damages, and, such being the case, an error was committed in rendering the judgment against him.
The section of the act referred to has been held applicable to vessels engaged in commerce and plying between ports of the United States: The E. A. Shores, Jr. (D. C.), 73 Fed. 432; In re Piper Aden Goodall Co. (D. C.), 86 Fed. 670; The Nettie Quill (D. C.), 124 Fed. 667. A practice sprang up in England of inserting in [489]*489contracts for transporting commodities by water a clause as follows:
“Any question arising under this bill of lading to be settled according to the laws of the flag of the vessel carrying the goods”: The Victory (D. C.), 63 Fed. 631; The Glenmavis (D. C.), 69 Fed. 472.
Most of the foreign commerce by water is carried by English vessels. Under the decisions of the courts of that country a stipulation in a bill of lading, exempting the ship and her owners from liability on account of negligence, is upheld, while such a provision is determined to be unenforceable by the courts of the United States whereby the shipping of the latter country was by such divergent procedure placed at a great disadvantage. In order to modify the relations previously existing between the vessel and her cargo, the Harter Act was adopted: The Delaware, 161 U. S. 459 (40 L. Ed. 771, 16 Sup. Ct. Rep. 516). “Plainly the main purposes of this act,” says Mr. Justice Shiras in referring to the enactment in the case of The Irrawaddy, 171 U. S. 187 (43 L. Ed. 130, 18 Sup. Ct. Rep. 831), “were to relieve the ship owner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the management of the vessel.”
6. As the design of the law was to aid ships sailing under the flag of the United States, particularly when engaged in the foreign trade, it would seem that the provisions of the enactment were applicable only to duly registered vessels. But, however this may be, it will be assumed, .in the absence of any evidence on the [490]*490subject, that the scow used iu transporting the plaintiffs’ hogs was of sufficient capacity to authorize the defendant, as the owner thereof, to interpose the defense which the Harter Act affords.
7. Under Section 9 of the Judiciary Act of September 24, 1789 (1 U. S. Stat. 76), state and federal courts have concurrent jurisdiction of causes of actions in admiralty, where only a common-law remedy in personam is sought: Bohannan v. Hammon, 42 Cal. 227; Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 223 (7 Am. Rep. 183); Brown v. Gilmore, 92 Pa. 40; Chase v. American Steamboat Co., 9 R. I. 419 (11 Am. Rep. 274); Leon v. Galceran, 78 U. S. (11 Wall.) 188 (24 L. Ed. 74); Ransberry v. North American T. & T. Co., 22 Wash. 476 (61 Pac. 154); John Meunier Gun Co. v. Lehigh Valley T. Co., 123 Wis. 143 (101 N. W. 386). The right of the plaintiffs thus to select the forum cannot prevent the defendant from setting forth in his answer and establishing at the trial in the state court the defense of nonliability, in that the loss complained of arose from the alleged dangers of the Columbia River, a navigable stream.
8. The testimony on this branch of the case shows that the hogs were driven on the deck of the scow, where they were retained by a fence put up along the sides and at the ends of the vessel. In order to keep these animals together another section of fence was set up athwart the deck, and, being moved to the proper place, was lashed to the side fences. The scow thus loaded was towed behind the launch by a line about 80 feet in length. Leaving Linton late in the afternoon of a stormy day the tug and tow proceeded down the Willamette River to the Columbia and thence up the latter stream, where a high wind was encountered, pro[491]*491ducing a heavy swell. The waves tossing the scow caused the hogs to crowd aft, and the vessel, beginning to sink, was hastily towed in the darkness to the bank where, the bow striking, the stem settled, drowning 16 of the hogs in the pen formed by the fencing. After the scow was raised a hole was discovered in the after rake above the usual water line. When this puncture was made does not appear from the evidence. The defendant testified that when the voyage was commenced the scow was seaworthy. This sworn declaration amounts to nothing more than a conclusion, and is insufficient, under the practice prevailing in this state, for this court definitely to say that he was blameless or to declare that the injury to the vessel, which undoubtedly was the proximate cause of the loss, resulted from the dangers incident to navigable waters. Based on such defense and the testimony adverted to, the court made a finding which reads:
“That those portions of defendant’s further and separate answer with regard to the navigation of said launch and barge and compliance with the laws of navigation, and the evidence with regard to said matters, are immaterial and irrelevant to a decision of the issues in this cause. ’•’
An exception to this finding was taken. We consider such issue very material, and a finding should have been made thereon. A transcript of the entire testimony given at the trial is before us, but the defense as to whether or not the scow was free from defects when the hogs were placed aboard is a question depending largely on circumstantial evidence, and, this being so, the decision in Taffe v. Smyth, 62 Or. 227 (125 Pac. 308), is not controlling: State v. Rader, 62 Or. 37 (124 Pac. 195); Witt v. Campbell-Lakin Segar Co., 66 Or.
[492]*492144 (134 Pac. 316); Frederick & Nelson v. Bard, 66 Or. 259 (134 Pac. 318). For the failure to make the finding upon the issues referred to, the judgment is reversed and the cause remanded, for such further proceedings as may be necessary, not inconsistent with this opinion.
Reversed. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Ramsey concur.