101/ ft 5? Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Clnrn^U ICaui ^riynol ICthratu Cornell University Library KF 1091.A58 1868 A treatise on the law of carriers of goo 3 1924 018 926 828 DATE DUE «»Mk '^ ■/ GAVLORD l>RINTEOINU.ft A. The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018926828 Til E A T I S E ON THE LAW OF CARRIERS GOODS AND PASSENGERS, BY LAND AND BY WATER, AN APPENDIX OF STATUTES REGULATING PASSENGER VESSELS AND STEAMBOATS, eto.,,^-.. By JOSEPH K. ANGELL. EEVISED, COKKECTED, AHD EHLAEGED. JOHN LATHROP, OF THE BOSTON BAR. "The first principles of jurisprudence are Bimple maxims of reason, of whfch the observance is imme- diately discovered by experience to be essential to tbe security of men's rights, and which pervade the laws of all countries. Ao account of the gradual application of these original principles, first to more * simple, and afterwards to more complicated cases, forms both the history and theory of law." — Sir James ZklACEmTUSH. BOSTON: LITTLE, BROWN, AND COMPANY, 110 Washington Stkeet. 1868. Entered according to Act of Congress, in the year 1857, by Joseph K. Angell, in the Clerk's Office of the District Court of the District of Rhode Island. Entered according to Act of Congress, in the year 1868, by Little, Beown, & Co., in the Clerk's Office of the District Conrt of the District of Massachusetts. University FftEss: Welch, Bigelow, & Co., Cambridge. HIS ESTEEMED FRIEND, JOHN CAETEE BEOWN, ESQ., THIS THIRD EDITION IS RESPECTPULI>Y. INSCRIBED BY THE AUTHOn. PREFACE TO THE FOURTH EDITION. Since the third edition of this work was published, in 1857, the Law of Carriers has been so much considered by the courts, tliat I have found it necessary, in order to bring the work down to the present time, to add sixty pages of new matter, containing over one thousand cases not cited in the previous edition. By adopting a uniform system of abbreviating the names of the reports, I Jiave been able to add this large amount of new matter without increas- ing the size of the work. This being^the first edition published since the death of the author of the wotk, I have added the new matter in the form of ' notes, separated from the old by a line, and have left the original text untouched. JOHN LATHKOP. Febkuary, 1868. PEEFACE TO THE FIRST EDITION. It is not thought requisite to tender an elaborate apology for presenting to the public a work upon a subject of so great impor- tance as the Law of Carriers of Goods and Passengers, as it is be- lieved that it must with the public be a desideratum, that a subject of jurisprudence so practical as this, and one so intimately con- nected with the common and daily concerns of life, should not only be settled as precisely and as uniformly as possible, but should be generally understood. The annals of navigation and commerce, and the records of commercial jurisprudence, attest the impor- tance of the law of common carriers by land and by water, and it is doubted if there is any other branch of this department of juris- prudence which so naturally tends to awaken a desire m the cotn- munity at large to become enlightened in relation to it. But since the commencement of the present century, and more especially since American inventive genius has rendered the accelerative and reliable agency of Steam subservient to the transportation of com- modities and of travellers, the legal duties, liabilities, and rights of public carriers of both things and persons have become subjects of vastly more interest and greater moment than, before, this era, was realized or even generally anticipated. This era was soon 'suc- ceeded by the event of the introduction of the expeditious, com- modious, and now common means of commercial transportation, and mercable and social intercourse by land ; and so instrumental have Railroads proved, in combination with the employment of the agency just mentioned, in cementing in this connection and dependence sections of country far removed from each other, Tin PREFACE TO THE FIRST EDITION. that the interest of the mercantile and travelling public, and more especially of the legal profession, in tlie 'direction of the siibject of the following work, has attained its acme. And yet, the only works professing to treat of the subject, and devoted entirely to its exposition, whicli the author has been able to meet with, are two productions by English authors, one by Jeremy, and tlie other by Jones,^ the first of which appeared in the year 1815, ana the other in the year 1827. It must be obvious that neither of these productions is at all adequate to answer present wants, whatever merit may be justly ascribed to them, and however valuable tliey may haye been at the time of their publication. Tlie late learned Mr. Justice Story, in his well-known and highly valued " Commentaries on the Law of Bailments," has indeed treated upon the sulject, but then he has done so by considering it only as a branch of his general subject, and of course his exposition of the Law of Carriers is not nearly so comprehensive and satisfactory as it would have been, had he considered it independently or by itself. The object of the author has been to consider the law on the /subject proposed as it now is, and at the same time to point out such discrepancies as he has discovered to have occurred, in the course of the gradual adaptation, by judicial tribunals, of leading principles .to the vastly multiplied exigencies of commerce and of society. In the exemplification of these principles, he has been im- pressed witli a sense of the propriety, in many instances, of giving an expanded outline of tlie facts contained in an adjudged case. In general, the cases are consistent with each other in so far as re- gards a recognition of, and, disposition to respect, the fundamental doctrines which have been so happily and ingeniously delineated by Sir William Jones, and by the late learned Mr. Justice Story, as the foundation of the general law of bailments ; but yet, the decided cases, as reported, have individually, in respect to the facts which characterized them, points of divergement, which, while the com- ■ ' George Frederick Jones. PREFACE TO THE FIEST EDITION. IX mon elementary chain referred to is essentially preserved, have frequently rendered them entirely sui generis. In the case of Coggs v. Bernard,^ Lord Chief Justice Holt, in his exposition of the Law of Bailments, clearly sets forth the principles on vs^hicli the Law of Carriers rests. This learned judge not only earned tlie reputation of considering justice as a cardinal virtue, and not as a trade for maintenance,^ but it has been recorded of him by a contemporary, that " his dicta and re^ponsa might in general be regarded as text law, as those of Paiilus, Ulpian, and Papinian,,in the Roman Digest."^ As a well-ordered exposition of the Law of Bailment and of Carriers, his argument in the case referred to has rendered it a leading case on the subject, and has given it a rank among the most celebrated ev(3r decided in Westminster Hall.* No higher eulogium can be pronounced upon it than that expressed by Sir William Jones, when he is content that his own admirable Essay on Bailments shall be considered merely as a commentary upon it ; ^ and yet Sir William Jones has differed somewliat with him in regard to the division of the subject of bailments.^ * Many doubts and intricacies have arisen from the attempts of common carriers to claim privileges and exemptions which are contrary to ,the theory of tlie law, as understood in the case of Coggs V. Bernard, and in subsequent and even contemporaneous cases. As has been said by a learned English judge of modern times, " Carriers are constantly endeavoring to narrow their re- ' See infra, § 2. ^ See the Tattler, No. 14. , ' Preface to the reports of cases determined by Lord Chief Justice Holt, front 1688 to 1710 : London, 1 738. There was in Lord Holt " a clearness and perspi- cuity of ideas when he defined ; a distinct arrangement of them when he divided his subject; and the natural difference of things was made obvious when he dis- tinp;uisht'(^ between matters which form an untrue resemblance of each other. Having thus rightly formed his premises, he hardly ever erred in his conclusions." Ibid. * 1 Smith, Lead. Ca. 95. ' See." Lives of Eminent Judges," London, 1846, p. 135. • See infra. Chap. L § 13. X PREFACE TO THE FIRST EDITION. sponsibility, and I am not singular in thinking their endeavors ought not to be favored." ^ This remark was made in reference to the attempted evasion of the full Common-Law responsibility of common carriers, by their assuming an abridgment of it by public notices to this effect ; in other words, by their assumption of the responsibility only of special contractors. There have been com- paratively but few cases of this sort in our American courts, but yet the question whether common carriers have the right to abridge their responsibility as such, in the way referred to, has been very seriously considered in this country. We refer the reader to the cases noticed in Chapter YII. of the present work. That there are defects in the following work the author is not so presumptuous as to gainsay. Errors he has- studiously endeavored to avoid, but should any of importance be discov- ered, notwithstanding the care which has been observed, he may betake himself, against too severe assault of censure, to the partial shelter of an old reporter, (of no great credit for accuracy,) who thus speaks to his readers : " The errata may be not impoftant, or uneasy to be corrected in the reading; wherein, if you be intent, you may find a reasonable reciprocation; your judgment may correct the erratas of the book, and the book perchance correct somewhat in your judgment ; and then you have acted mutual kindness, each to the other." ^ To conclude, the author is aware that he has imposed upon himself an arduous undertaking ; but he hopes that he may be rewarded, at least with the knowledge that he has succeeded, in a tolerable degree, in abridging the labors and in guiding the inquiries of the profession, and of others whose interest or curiosity may prompt them to be conversant with the subject of any portion of his work. Providence, April 20, 1849. • ' Mr. Justice Burrough, in Duff u. Budd, 3 Bro. & Bing. R. 177. ' Pref. to Latuh, Reports and Cases, En la Court de Bank le Roy, 1662.\ TABLE OF CONTENTS. CHAPTER I. PAGE Preliminary View of the Law of Bailments 1 CHAPTER n. . Of Carriers without Hire 15 CHAPTER ni. Of Carriers for Hire, who are not Common Carriers 40 CHAPTER IV. Who are Common Carriers 58 CHAPTER V. Of the Duty of a Common Garner to receive Goods, and of their Delivery to him as the Commencement of his Responsibility . . 106 CHAPTER VI. Of the Responsibility of Common Carriers ^ 127 CHAPTER VII. Of the Responsibility of Common Carriers, as restricted, limited, and qualified by Special Contract, and by Statute 195 CHAPTER VIII. Of the Termination of the Carrier's Responsibility, by Delivery, and what excuses a Non-delivery 249 Xll TABLE OF CONTENTS. CHAPTEK IX. Of the Eights of Carriers, — Rights of Possession, of Lien, and of Action for Freight • • • • 30o CHAPTER X. t Of Actions against Carriers, the Declaration, Pleas, Evidence, Dam- ages, and the Parties to sue and be sued 351 CHAPTER XL Of Carriers of Passengers 431 CHAPTER XIL Of Carriers of Passengers by Water 544 CONTENTS OF THE APPENDIX. , Acts of the Congress of the United States regulating the Carriage of Passengers in Steamships and other Vessels '. . 608 Act of 1838, c. 191 ' • . . . . 608 « 1843, c. 94 612 " 1852, c. 106 ' 614 Resolution of January 7, 1853 . • 635 « March 3, 1853 635 Act of 1855, c. 213 636 « 1864, c. 113 644 «. 1864,0.249 645 " 1865, c. 94 648 Form of a Libel in a Suit In Rem in Cases of Collision of Vessels upon the Lakes 649 English Forms of Pleadings by and against Carriers 652 Index 667 INDEX TO CASES CITED. THE FIGURES KEFER TO THE SECTIONS. A^ey V. Kellogg Acton V. Heaven Section 75, 134, 281 112 Adam v. Hay 80 Adams v. Blankenstein 323 V. Clark 384, 431 Adderley v. Cookson 616 Agricola, The 664, 665, 669 Airey «. Merrill 166 Alabama E. v. Kidd 291 a, 301 Albatross v. Wayne 316 Albright v. Penn 82 Alden v. New York R. 538 V. Pearson 433, 472 Aldridge v. Great WestPrn K. 667 Alexander v. Grteen ,59, 86 Alexander Wise, The 669 Alger V. Mississippi R. 567 c Aliwal, The 647 Allen V. Bareda 397 V. Bates 398 V. Duncan 468 V. Maekay 90 V. Newberry 419 V. Sewall 77, 80, 83, 85, 91 101, 105, 146, 153, 426 V. Williams 503, 508 Alley V. Blen _ 282 Alston V'. Herring 212 Alton R. V. Baugh 567 c American Exp. Co. v. Baldwin _45, 297 t). Pinckney 75 Transp. Co. v. Moore 221 Ames V. Palmer 357 Amies v. Stevens 154, 155, 208, 277 Amory v. McGregor 484 Amos V. Temperley 397 Anderson v. Foresman 33 V. Highland T. Co. 251 Andrew v. Moorhouse 399 Angle V. Mississippi R. 95 AnjoU'U. Deagle 146 Ann & Mary, The 654, 669 Section Anonymous 433, 478 Anonymous u. Jackson 68, 124, 220 Ansel' w. Waterhouse 422, 425, 525 Arbuckle v. Thompson 497 Argyle Sch. v. Worthington 396 Armistead v. Wilde 23 Armory v. Delamirie 474 Armsworth ». Southeastern R. 600 Arnold v. Halenbrake 81 Artaza v. Smallpieoe 370 Arthur v. Sch. Gassius 486 Ash V. Putnam 374 Ashmead v. Bury 505 Ashmore v. Penn. Steam T. Co. 86, 267, 557 Aston V. Heaven 522, 536, 541, 553 Atkinson v. Buckle 393 V. Ritchie 226 a Atkisson v. Steamboat Castle Garden 483, 490 Atlantic Ins. Co. v. Bird 407 Attersol v. Bryant 433 Attorney Gen. v. Case 193, 665 Atwell V. Miller 399 Atwood V. Reliance Trans. Co. 153, 202, 239, 243, 273 Augusta R. V. McElmurry 557 Aurora Branch R. v. Grimes 657 Austin V. Drewe 224 V. Great Western R. 521, 525 V. Manchester R. 23, 220, 269, 275, 446 Aycock V. Wilmington R. 567 c Aymar v. Astor 80, 168, 170, 173, 174 B. Babcock v. Beene 82 Bachelder v. Heagan 566 Backhouse v. Sneed 153, 171, 173, 192 Backus V. Schooner Marengo 231 Bags of Linseed 3 70, 3 7 9 XIV INDEX TO CASES CITED. Section Bailey v. Damon 393 V. Shaw 348, 349, 469, 474, 482 Baillie v. Moudigliani 407 Baker v. Bolton 597 V. Brinson 202 V. Woodruff 4 Baldwin v. Am. Exp. Co. 297 V. Collins 251 V. Cole 431 Baltimore E. v. Lamborn 667 o, 567 c V. Woodruff 23 538, 567 Bancroft v. Boston R. 600 Bank of Orange v. Browne 83 Eoohester v. Jones 495 Utiesp, V. McKinster 19 Banker v. Cheviot 399 Barber v. Brace 88, 218 Barclay v. Clyde 313 V. Cuculla y Gana 191 V. Heygena 191 Barker v. Coflin 609 V. Havens 397 V. New York K. 533 Barnes v. Cole 556 V. Hurd 603 Barney v. Prentiss 243, 254 Barnwell v. Hussey 180 Barrett v. Williamson , 670 a Barstow v. Murison 136 a Bartlett v. Caruley 393 Barton v. WoUiford 166, 200 Bartonshill Coal Co. v. McGuire ' 578 V. Reid 678 Bartram v. M'Kee 408 Bass V. Chicago R. 566 a Bastard v. Bastard 124, 392 Basten v. Butler 408 Batavier, The 644 a Bates V. Stanton 336, 431 V. Todd 231 Batson v. Donovan 23, 115, 167, 258, 264, 266 272, 356 Bausman v. Smith 520 a Baxendale, In re 124, 257 V. Eastern Counties E.' 124 V. London R. 124 V. North Devon R. 124 Baxter v. Leland 166, 212 V. Rodman 687 Baylis w. Usher 338 Beach V. Parmenter 555 Beal V. South Devon E. 257 Beale v. Tompson 401 Bean v. Greene 243, 251, 267 V. Sturtevant 77, 91 Beardslee v. Eichardson 27 , 38, 433, 468 Section Bearse v. Eopes 202, 212 Beatty v. Gilmore 27 Beauchamp v. Powley 27, 514 Beck V. Evans 53, 279 Beckford v. Crutwell 449 Beckwith v. Frisbie 81, 289 Beebe v. Ayres 609 Beekman v. Schenectady E. 525 V. Shouse 38, 46, 47, 61, 77, 243, 247, 254 Beers v. Housatonic E. 538, 541, 557, 559 Beisiegel v. New Yor^ R. 657, 659, 565 Belfast R. v. Keys 115, 266 Bell V. Newton US V. Read 80, 173, 202, 207, SS Benjamin v. Sinclair 231 Benner v. Equitable Safety Ins. Co. 399 Bennett v. Clough 416 V. Dutton 110, 243, 521, 526, 526, 590 V. Filyaw 8% 95 V. Manchester R. 124 V. Peninsula Steamboat Co. 612 Bennion v. Davison 456 Benson v. New Jersey R. 490 a Berkley v. Watliig 231 Bernal v. Pirn 373 Berry v. Cooper 202 Bevan v. Waters 66 Bigelow V. Heaton 370, 374 V. Rutland 559 Bignold V. Waterhouse 146, 252, 266 Bilbee v. London R. 565 Bingham v. Rogers 110, 221, 243, 478 Binus V. Pigot 364 Bird u. Astcock 215 V. Cromwell 212 Birkett v. Willan 297 Birley v. Gladstone 383 Bishop V. Ely 575 V. Pentland 180 Bissell V. New York R. 528 V. Price 231, 414 Black V. Baxendale 284, 490 V. Rose 400 Blackstock v. New York R. 283 Blaikie v. Stembridge 212, 618 Blair v. Jeffries 353 Blake v. Midland R. 600 Blakely v. Dickson 899 Blanohard v. Bucknara 399 V. Isaacs 83, 77, 129, 146 V. Page 491 INDEX TO CASES CITED. XV Section Blanck v. Solly 416 Bland v. Womack 33 Blenheim, The 669 Blin V. Campbell 606 V. Mayo 300, 301 Bliven v. Hudson River R. 837 a Blocker v. Whittenburg '212 Blossom V. Champion 393 V. GriflRn 131 Blumenthal v. Brainerd 78, 303 Blythe u.' Marsh 166 Boardman v. Keeler 587 Bodenham v. Bennett 54 Boehm v. Combe 96, 140 Boggs V. Martin 373 Boilvin v. Moore 291 Bolan V. Williamson 118 Bolin V. Huffnagle 340 Boner v. Merchants' Steam- boat Co. 283, 289 Bonner v. Marsh 4a7, 503 Bonsteel v. Vanderbilt 620 a Borne v. Perrault 80 Boson V. Sandford 83, 422, 426, 518 Boss V. Litton 563 Boston R. V. Proctor 609 Bostwick V. Champion 91, 92, 93, 582, 589 Boswell V. Hudson River R. 221, 267, 528 Bothingk v. Inglis 339, 497 Bothnia, The 643 Boucher v. Lawson 87 Boulston V. Sandeford 124 Bowcher v. Noidstrom 193 Bowen v. New York Central R. 569 Bowlin V. Nye 433 Bovfman v. Hilton " 83, 356, 414 V. Teall 57, 81, 114, 160 333, 334, 338, 490 Bowyer v. Anderson 588 Boyce v. Anderson 67, 122, 153, 521, 522, 623 V. Bayliffe 624 V. Chapman 89 Boyle V. M'Laughlin 162, 163, 181, 267, 283, 331 Boynton v. Turner * 602 Boys V. Pink 138, 140, 257 Bracket v. McNair 484 Bradford v. South Carolina R. 95 Bradley v. Boston R. 540 V. Dunipaoe ' 136, 229 V. Waterhouse 261 Bradstreet v. Baldwin 400 V. Heran 231, 400 Brand v. Schenectady R. 557 V. Troy R. ^23, 522, 565 Section Brandt v. Bowlby 482, 511 Brass v. Maitland 212 Brecknock Canal Navigation v. Pritchard 59, 294 Brehm v. Great Western R. 569 Bremner v. Williams 534 Brethertou v. Wood 422, 423, 426, 440, 524, 591 Briekhead v. Archbishop of Yctrk 427 Briddon v. Great Northern R. 283 Bridge v. Austin 487 V. Grand Junction R. 538, 556, 639 Brien v. Bennett 542 Briggs V. Boston R. 352, 357, 365 V. Light-Boats 356 V. Taylor 559 V. Vanderbilt 620 Brind v. Dale 47, 57, 59, 61, 74, ' 140, 457 Brintnall v. Saratoga R. 95, 466 Bristol V. Rensselaer R. 303 V. Wilsmore 374 R. V. Cummings 95 Brittain v. Barnaby 223, 400 Broadwater i). Blot 52 Broadwell v. Butler 227, 283 Brodenham v. Bennett 297 Brook V. Pickwith 134 Brooke ujPickwith 103, 247, 250, 264, 266 Brooks V. Ball 65 V. Hart 549, 557 V. New York R. 567 Brousseau v. Ship Hudson 212 Brown v. Denison 75 y. Eastern R. 250 V. Harris 391, 399 U.Hodgson 492,497 V. Hunt 399 V. Lull 187 V. Mallett , 646 V. Maxwell 576 V. New York R. 538, 546, 565, 636 Browne v. Providence R. • 567 c Brownell v. Flaggler 556, 557, 561 Bruce v. Wait 510 Brueker u. Fromont 572 Bryans v. Nix 510 Bryant u. Commonwealth Ins. Co. 187 V. Crosby • 4 Buckle V. Knoop 398 Buckley v. Furniss 340 Buckman v. Levi 143 Buckmaster v. Mower 433 Buddie V. Wilson 422 Buel V. New York R. 547 XVI INDEX TO CASES CITED. Section Buel V. Pnmphrey 431 Buffit V. Troy R. 621, 525 Bulkley v. Naumkeajr Steam Cptton Co. 129, 161 /«. New York R. 56 7 o Billiard v. Young 326, 431 Buller V. Fisher 636 Bullock V. Babooek . 607 Burbridge v. Jakes 449 Burekle v. New York Dry Dock Co. 557 Burgess V. Great Western R. 521 V. Grey 515 V. Gun - 382, 393 Burnside v. Union Steamboat Co. 67 Burrill V. North 465 Burritt V. Reijch 281, 346 Burroughs v. Housatonic R. 566 Burtis V. Buffalo R. 95 Burton v. Wilkinson 337' a Bush V. Steinman 667 Buskirk v. Purington 366 Bussy V. Donaldson 193, 519, 664 Butcher v. London R. 318 Butler V. Basing 76, 77, 475 V. Heane " ' 248 V. Hudson River R. 115, 146 a V. Steamer Arrow 97, 231 Butt V. Great Western R-. 266 Butterfield v. Forrester ^556, 557 V. Western R. 557, 559 Button V. Hudson River R. 557 Byrne v. Weeks 400 Cahill V. London K. 115 Cairns v. Mills 7 V. Robins 57, 108 Caldwell V. Murphy 522, 561 Califf V. Danv^rs 57, 169 Calye's Case 59 Camden R. v. Baldanf 247 D. Belknap 135, 238 . V. Briggs* 128 V. Burke "no, 267,274, 523, 534 Cameron v. Rich 153 Caraoys v. Scurr 205, 213 Campbell v. Morse 76 155, 162 V. Perkjps 379 V. Phelps 603 Candace, The Brig 628 a Canfield v. Northern R. 231 397, 497 Carenagh v. Such ■ 89 277, 513 Carey v. Berkshire R. 600, 601 Cariss v. Johnston 213 Section Carolus, The 664, 665^ 667 Carpenter v. Branch 24 Carpue v. London R. 638, 540, 641 546, 569 Carr v. Lancashire R. 275 V. Steamboat Michigan 227 Carroll V. New York R. 557 Carruthers v. Sydebotham 665 Carsley v. White 648 Carson v. Harris 95 Carter v. Holbrook 23 V. Peck 531 Gary v. Cleveland R. 95, 114, 531 Cassillay w. Young . 227,354 Catawissa B. v. Armstrong 578, 601 Caterham R. v. London R. 124 Catharine, The 652 Catherine of Dover, The 670 Catherine, Sch. v. Dickinson 641 Catley v. Wintringham 308 Caton^. Rumney 85 Cattlin V. Hills 636 Cavenagh v. Such 89, 513 Cayzer v. Taylor . 577, 578 Caze V. Baltimore Ins. Co. 398, 407 Celt, The 671 Center v. Finney 557 Cevill V. Hill 4 Chamberlain v. Cooke 447 V. Chandler 610, 621 V. Ward 647, 650 a V. Williamson 593 Champion v. Bostwick 580 Chandler v. Belden 387 V. Brainard 585 »..Broughton 604 V. Sprague 507 Chapin v. Sullivaa R. 567 c Chaplin u. Hawes 555 Chapman v. Allen 43 V. Atlantic R. 567 V. New Haven R. 636 V. New York R. 567 c, 572 Charleston Steamboat Co. v. Bason 178, 212 Chase v. Alliance Ins. Co. 399 V. Debolt 515 V. Maberry 21 V. Washburn 134 . V. Washington Ins. Co. 349 V. Westmore 66, 385 Cheney v. Boston R. 609 Cheroit v. Barker 399 Cheshire, The Bark 212 Chevallier t). Patton 205,218 V. Straham 70, 156 Cheviot V. Brooks 187 Chicago V. Major 562 INDEX TO CASES CITED. xvu Chicago E. v. Cauflfman V. Dewey V. Fay V. George V. Hazzard V. Parks V. Patchin Section 567 c 521 - 557 538 528 609 567 c V. Thompson 78, 101, 266 V. Warren 282, 304 Chiokering v. Fowler 297, 301, 306 Childrens v. Saxby 478 Childress u. Yourie 12 Childs V. Sands 425 Chippendala v. Lancashire R. 245, 275 Chouteau v. Steamboat St. An- thony 21, 103 Chouteaux v. Leech 212, 229 Christie v. Griggs 61, 522, 534, 536, 569 V. Lewis 876, 377, 379, 395 Christinsi, The 667 Christy V. Howe 397, 398 Churchill v. Roseback 545, 556, 560 Cincinnati Mail Co- v. Boal 101 Citizens' Bank v. Nantucket Steamboat Co. 68, 76, 82, 84, 85, 91, 101, 102, 124, 136, 419 Clafflin V. Wilcox 545, 606 Claflin V. Boston R. ■ 432 Clapp V. Young 669 Clarence, The 670 a Clark V. Barnwell 166, 212, 223, 231, 472 V. Eighth Av. R. 528, 538, 557 V- Faxton 238 V. Hutchins 251 V. Lowell R. 365 V. Masters 400 V. McDonald 122 V. Reed' 585 V. Richards 80, 1 73 V. Spence 38, 61, 202, 205, 432,476,478 V. Syracuse R. 567 u. Vermont R. 567 c Clarke v. Grey 234, 253, 446 V. Holmes 578 V. Needles 131 v. Rochester R. 214 a Clay V. Willan 61, 220, 253, 446 Claypool V. McAllister 82 Clayton v. Hunt 248, 249 Clemson v. Davidson 393 Clendaniel v. Tuckerman 291, 291 a Cleveland R. v- Bartram 609 V. Keary 578 V. Terry 562 Clunnes v. Pezzay 474 b Section Coates V. Railton 343 Coats V. Chaplain 495, 496, 498, 504, 505 Cobb V. Abbott 583 Cobban v. Doune 129, 146 Cobden v. Bolton 234, 246 Cock V. Taylor 397 Coffin V. Storer 399 Coggs V. Bernard 2, 11, 13, 18, 19, 21, 22, 24, 35, 37, 38, 47, 48, 50, 60, 67, 68, 70, 87, US, 151, 155, 168, 173, 189, 191, 211, 232,422 Cohen w. Frost 113 !). Hume 80,82,130,140,537 Coit u. McMechen 174 Colchester v, Brooke 5#1 Cole V. Fisher 12 V. Goodwin 83, 110, 113, 114, ll5, 124, 125, 142, 153, 220, 221, 233, 234, 235, 237, 238, 245, 253, 259, 261, 264, 266^ 267, 318, 356, 534 Colegrove v. Harlem R. 636 Coleman v. Lambert 503 V. Riches 223 a CoUard v. South Eastern R. 482, 482 a Col. Ledyard, The Bark 212 Collenberg, The Brig 210,398 Collett V. London R. Co. 119, 521 Collier «. Swinney 294 V. Valentine 182, 207 Collins V. Boston R. 115 V. Bristol R. 95 V. Union Trans. Co. ' 397 CoUinson v. Larkins 638 CoUman v. Collins 366 Colt V. McMechen 80, 155, 202 Columbian Ins. Co. v. Ashby 368 Columbine, The 646, 657 Columbo, The 231 Colvin V. Newberry 378 Commerce, Propeller 348 Commonwealth v. Allen 549 V. Boston R. 601 V. Comly 59 V. Eastern R. 601 V. Fahey 1 1 2 V. Gammens 549 V. Power 525, 630, 538 V. Sanford 601 Gonad v. Atlantic Ins. Co. 508 Conger v. Chicago R. 567 c V. Hudson River R. 214 a, 283 Connecticut Ins. Co. v. New York R. 600 Converse v. Brainerd 166 Convoy's Wheat, The 281 Conway Bank v. Am. Exp. Co. 45 x?m INDEX TO CASES CITED. Section Conwell V. Voorhees 121 Cook V. Champlain Trans. Co. 428, 566 V. Gourdin 165, 525 Cooke V. Jennins 405 Cooley V. Port Wardens 665 Coombs V. Bristol K. 323, 495 V. Purrington 559 ■ Coon V. Syracuse R. 578 Cooper, In re 124 V. Barton 61 V. Berry , 241 V. Willomatt 431 Coosa River Steamboat Co. v. Barclay 182, 223 Cope V. Cordova 223, 301, 311, 313 V. Dodd 399 Cqpeland v. New England Mar. Ins. Co. 577 Coppin V. Braithwaite 532 Corbin v. Leader * 615 Cornwall v. Sullivan R. 567 Cor win v. New York R. 567 c Cotterill v. Starkey 541, 563 Coulthurst V. Sweet 398 Covell V. Laming 602 Cowell V. Simpson 386 Cowles V. Pointer 75 Cox V. Foscue 187 V. Heisley 80, 258 V. Midland Counties R. 579 a V. O'Riley 66, 75, 301 V. Peterson 156, 166, 168, 229, 490 Coxon V. Great Western R. 95 Crafter v. Metropolitan R. 521 Craig V. Childress 71, 80 Craneh v. White , 63 Cranwell v. Ship Fanny Fosdick 212 Craven v. Ryder 503 Crawford v. Clark 313 V. Williams 407 Crawshay v. Eades 342 V. Homfray 386, 390 Crocker v. New London R. 672, 609 Croft V. Alison 604 Crofts V. Waterhouse 536, 540, 541, 551 Crommelin v. New York R. 383 Cronkite «. Wells 137 Crosby u. Fitch 80,88,153,160,176, 179, 226 Crouch V. Great Northern R. 124, 270, 284, 356, 418 V . ' Great Western R. 124 V. London R. 95, 124, 125 Crowley v. Cohen 349 Crowly V. Panama R. 601 Crozier v. Smith S99 Culbertson v. Shaw Cullen V. M' Alpine Culpepper v. Good Cummings v. Spruance Section 643, 644 a 443, 467 135 642, 646, 660, 670 a Curling v. Long 393, 401 Curtis V. Drinkwater 537 Curtiss «. Rochester R. 538, 569 Gushing v. The John Fraser 641, 650 a, 667 Cutler V. Winsor 587 Cutting V. Grand Trunk- R. 482, 482 a D. Dakin v. Brown 538 Dale U.Hall 87,129,148,169,170, 173, 202,422,455 Daley v. Norwich R. 562 Dalston v. Janson 446 Dalton V. Favour 606 V. South Eastern R. 600 a Dalyell v. Tyler 575 Dalzell V. Steamer Saxon 227 Darling v. Boston R. 95 Dascomb v. Buffalo R. 557 Davey v. Mason 189, 143 David V. Moore 481 Davidson v. Graham 202, 221 V. Gwynne 210, 245, 266 Da vies v. Mann 561 Davis V. Crawford 368 V. Garrett 164, 175, 206 V. James 500 V. Michigan R. 115, 475, 480 V. Pattison 397 V. Willan 248 Dawes v. Peck 497, 499 Dawson v. Chauncey 27, 69 V. Manchester R. 569 Day V. Owen 525 V. Ridley 274, 472 Dean v. Vaccaro 323, 482 Dearden v. Townsend 609 Deevort v. Loomer 29, 522, 528 Denny v. New York R. 75, 163 V. Williams 559 D'Anjou V. Ball 338 ». Deagle 323, 509 De Cock, The 651 De Uahan v. Hartley 294 De Mott V. Laraway 81, 153, 194, 282, 297 De Rothschild v. Royal Mail Steam Packet Co. 150, 220 De Silvale v. Kendall 399 De Symonds v. De la Cour 469 INDEX TO CASES CITED. XIX Section Detouches v. Peck 399 De Vaux v. Salvador - 641 Devereux v. Barclay 270, 326, 432 D'Wolf u. New York F. Ins. Co. 495 Deyo V. New York K. 538 Dibble u. Brown 112,115,479 Dickerson v. Seelye 231 Dickinson v. Haslit 173, 205, 412 V. North Eastern R. 600 a V. Winchester 112, 134 Dickon v. Clifton 422, 430 Dill V. South Carolina E. 78, 109, 475, 480 Dillon V. New York R. 95 Ditcham v. Chivis '449 Dixon V. Baldwin 340, 345 V. Dunham 301 V. Eawkin 578 Dodge V. Bartol 216 Doe V. Martin 251 Doorman v. Jenkins 19, 21, 22, 27, 33, 40, 64 Dorr V. New Haven Nav. Co. 266 V, New Jersey Steam Nav. Co. 239 a Dougal V. Kemble 397 Dover v. Mills ' 45 Dowell V. Gen. Steam Nav. Co. 633 Dows V. Cobb 497 V. Greene 223, 231, 505 V. Rush 223 Doyle V. Kiser 115, 480 Drake v. Philadelphia E. 667 c Draper v. Norwich E. 469 Dresser v. Bosanquet 66 Drewry v. Twiss 449 Dudley v. BoUes 469 V. Smith 531, 541 Duffu. Budd 23, 244, 270, 297, 326, 496 Duffy V. New York E. - 667 c V. Thompson 115 Dufolt V. Gorman 356 Duggins V. Watson 636 Duke of Sussex, The 652, 658, 659, 667, 668 Dulany v. Sloop Pelagio 193 Duncan v. Railroad Co. 122 Dundee, The ' 652 Dunlop V. Munroe 118 V. Thorne 348 Dunn V. Branner 103 Dunnage v. Joliffe 312 Dunseth v. Wade 83, 168, 202, 227 Durgin V. Munson 577 Dutton V. Solomonson 497 Dwight V. Brewster 38, 77, 78, 80, 100, 254, 430, 431, 433, 580 E. Section Eagle V. White 78, 153, 243, 282, 283, 288, 297 East India Co. v. Evans 478 ■ V. PuUen 142 East Tennessee E. v. St. John 562 V. Whittle 214 a Eaton V. Boston R. 521 Ebenezer, The 650 Eden v. Lexington E. 600 Edgerton v. New Yort E. 528, 569 Edwards v. Brewer 340 V. Great Western R. 128 V. Lord 568 H. Sherratt 258, 356 V. Steamer Cahawba 202 V. Todd 411 Edwin, The Bark 129, 161, 223 a Eldridge v. Long Island R. 538, 547 Elkin V. New York Steamship Co. 490 a Elkins V. Boston R. 69, 71, 493 Elliott V. Russell 80, 88, 167, 174, 182, 185, 518 Ellis V. Hunt 345 V. Pearce 626 V. Turner 12, 89, 269 . Chotard 187 Ladue v. Griffith 131 Lafaye v. Harris 124 Lafayette R. v. Shriner 567 c Laing v. Colder 569 Lakeman v. Grinuell 484, 487 Lamar v. New York S. Nav. Co. 124 Lamb v. Parkman 89, 166, 212 V. Western R. 303 Lambert v. Robinson 368 Lanata u. Ship Henry Grinnell 400 Lane v. Cotton 117, 125, 356 V. Crombie 470, 557 V. Old Colony R. 370, 373 V. Penniman 376, 400 Langley v. Boston R. 78 V, Brown 21 Lapham v. Greene 494 Lamed v. Syracuse 631 Latham v. Rutley 446 Laugher v. Pointer 575, 581 Laveroni v. Drury 169 Law V. Hatcher 495 Lawrence v. Aberdein 214 a V. McGregor 164 V. Minturn 218 Lawrenceburg R. v. Montgomery 68 Laws u. North Carolina R. 567 c Lawson v. Worms 399 Lawton v. Sweeney 474 Layng V. Stewart 397 INDEX TO CASES CITED. XXV Section Leame v. Bray 602, 606 Le Barron v. East Boston Ferry 538, 569 Lecky V. MoDermott 76, 351 Le Conteur v. London R. 113, 255 Leech u. Baldwin 211,409,414,415 Leeds v. Wright 345 Leeman u. Gordan 617 Leeson v. Holt 220, 234, 236, 249 Lehman v. City of Brooklyn 562 Leigh V. Smith 140 Lemont v. Lord 187, 402 Lengridge v. Dorville 19 Lenox v. United Ins. Co. 215, 218 Leonard v. Winslow 357 Leuokhart v. Cooper 361 Levi V. Lynn R. 107 Levy V. Herbert 418 Lewis V. Great Western R. 257 V. Marshall 392 . V. M'Kee 397 V. Western R. 223, 323, 330 Liddard «. Lopes 187 Ligo, The 652, 669 Limpus V. Londton Omnibus Co. ' 572 Lingard v. Bromley ' 427 Linton V. Smith 575, 664 Lipford V. Charlotte R. 283 Litchfield v. White 20, 23 Litt V. Cowley 339 Little V. Conautt. 595 V. Fossett 348 V. Temple 227 Littlejohn v. Jones 82 Little Miami R. v. Stevens 578 Lloyd V. Barden 138, 146 V. Gen. Iron Screw Collier Co. 166 Lochlibo, The 643 Locke V. Swan 399 Lockhart v. Cooper 66 V. Liehtenthaler 636 Loeschman v. Williams 344 Logan V. Matthews 282 Londonderry, The 650 a London Packet, The 653 London R. v. Bartlett 281, 347 V. Dunham 255 V. Glyn 349 a Long V. Home 528, 541 Longmore v. Great Western R.' 521 Lord w. Midland R. 257 V. Wormwood 567 Lorent v. Kentrig 332 Loring v. Aborn^ 530 Louisville B, v. Ballard 567 c Lovejoy v. Dolau 549 Lovett V. Hobbs 124, 140 Section Lovett V. Salem R. 521, 559, 562 Low V. D'Wolf 503, 508 Lowe V. Moss 490 Lowell Wire Fence Co. a. Sargent 95 Lowrey v. Russell 179 V. Steamboat Portland 643, 655, 657, 660 Lubbock V. Inglis 324, 432 Lucas V. Birmingham R. 212 V. Goodwin 267 V. New Bedford R. 557, 559 V. Nockells 389 V. New York R. 594, 600 Ludlow V. Browne 603, 511 Ludwig V. Meyre 282, 482 Luke V. Lyde 394, 404, 405, 407 Lunt u. London R. ' 565 Luxford V. Large 556, 638 Lygo V. New,boId 562 Lyman v. Boston R. 567 a Lynch v. Nurdin 562 Lynx, Steamboat, v. King 212 Lyon V. Mells 173, 267, 274. 446 V. Smith 69 Lyons v. Hill 291 V. Woodward 600 M. M'AUister v. Hammond 606 McArthur v. Sears 80, 83, 88, 154, 155, 166, 188, 195, 197, 199 McCahan v. Hirst 430 McCall V. Brook 157 V. Chamberlain 567 c V. Forsyth 424, 451, 591 McCance v. London R. 257, 259 McCarty v. New York R. 302 McClenaghan v. Brock 122, 604 McCluer V. Manchester R. , 78 McCIure v. Hammond 71, 80, 518 V. Richardson 71 McCombie v. Davies 431 McCormick v. Hudson River R. 115 McCotter v. Hooker 464 McDaniels v. Emanuel 122 McDonald v. Western R. .134 McDonough v. Robinson 21 McElroy v. Nashua R. 540 McGill w. Rowland 110,116,124, 478, 479, 481 McGregor v. Kilgore 168, 227, 484 McGuire v. Steamship Golden Gate 621 McHenry v. Philadelphia R. 45, 76, 77, 129, 153, 316, 490 Mackay v. New York R. . 565 Mackey v. New York R. 557 XXVI INDEX TO CASES CITED. Section McKinlay w. Morrish 166 McKinney v. Niel 274, 523, 534, 540, 541, 544, 547, 569, 592 McLane v. Sharp 540, 549 McLaughlin v. Pryor 602, 604 McLean v. Rutherford 35, 37 McMahon v. New York 601 McManus v. Lancashire R. 202, 257 McMillan v. U. Ins. Co. 193 McQuesten u. Sanford 470 Machu V. London R. 91 Mackenzie v. Cox 50 Mackintosh v. Slade 193, 665 Macklin v. Waterhouse 124 Macmanus v. Crickett 604 Macon R. v. McConnell 566 Mad River R. v. Fulton 476 ' Madison R. 27. Kane 567 c Mahew v. Nelson 467 Makew v. Boyce 541, 554 Mallory v. Tioga R. 78 V. Willis 4 Malloy V. Backer 619 Malone v. Boston R. 250 Malton V. Nesbit 625 Manchester v. Milne 231 Manfield v. Maitland 399 Mangam v. Brooklyn City R. 562 Manning u. Newnham 187 Manser v. Eastern Counties R. 538 Mansfield Iron Works v. Willcox 567 Mareardier v. Chesapeake Ins. Co. 379 Marcia Tribou, Sch. . 643 Maria, The 152, 66^, 665 Marine Ins. Co. v. United States Ins. Co. 407 Markham v. Brown 625, 530 Marriot v. Stanley 638 Marriott, In re 124 Marsh V. Blyth . 168 V. Home 61, 279 Marshall v. American Exp. Co. 287 V. York R. 4, 418, 437 Martha, Ship 472 Martin y. Great Northern R. 521, 557 V. Salem Mar. Ins. Co. 129, 172 Mary Stewart, The 643, 669 Mashiter w. BuUer 399 Mason v. Lickbarrow 398 V. Thompson 609 Massachusetts, The 643, 664 Matteson v. New York R. 538 Maverick, The 636 Maving v. Todd 132, 234, 236, 251 Max V. Roberts 440 May V. Babcock 226, 228 V. Hanson 82 Mayall v. Boston R. 92, 491 gection Maybin v. South Carolina R. 75 Mayhew v. Eames 251 Mayor v. Humphries 450, 542, 592 May Queen, The 202 Meesel v. Lynn R. 659 Mercantile Ins. Co. v. Calebs 221 V. Chase 75, 221 Meriam M. Funek 397 Merriam v. Hartford R. 124, 146 a Merrick v. Brainard 86, 347 V. Webster 178 Merrill v. Grinnell 115 Merritt v. Clayhorn 69 V. Earle 136 a, 164, 197 V. Old Colony R. 129 Mershon v. Hobensack 68 Merwin v. Butler 77, 100, 286 Messiter v. Cooper 524, 631 Metcalfe v. London R. 492 Meyer v. Peck 231 V. Second Avenue R. 572 Michaels v. New York R. 134, 154 Michel V. Abestree 903 Michigan R. v. Bivens 482 V. Day • 281, 283 V. Hale 221, 304 V. Meyres 107 V. Shurtz 134 V. Ward 303 Middlesex, The Ship . 90 Middleton v. Fowler 77, 107 Milbert v. New York R. 485 Miles V. Bainbridge 408 V. Cattle 41, 141, 263 V. James 130 V. Johnson 80 Miller v. Pendleton 82 V. Steam Nav. Co. 134, 156, 302 Milligan v. Wedge 574, 575 Millikin^. Greer 468 Mills V. Ball 846 V. Graham 19 Milwaukee R. v. Fairchild 303 Miner y. Norwich R. 397 Minturn v. Warren Ins. Co. 399 Mitchel V. Ede 611 Mitchell V. Tarbutt 425 Moffat V. East India Co. 391, 394 Mohawk R. v. Niles 686 Moises V. Thornton 440 Mongan v. Congdon 348, 356 Monroe v. Leach 545, 550, 570 Monteith v. Bissell 32 MoUer v. Young 397 Monarch, The . 641 Montgomery v. Wilmington R. 567 c Montreal, The 641, 664 Moor V. Moorgue 27 INDEX TO CASES CITED. XXVU Section Moore v. American Transp. Co. 90 V. Evans 239 a M. Fitchburg R. 572 V. Michigan R. 156, 303 V. Sheredine 297 V. Wilson 500 Moorish v. Foote 469 Moran v. Portland S. P. Co. 475, 492 Moreton v. Hardern 603, 606 Morewood v. PoUok 156, 166 Morgan v. North American Ins. Co. 400 u. Vale of Neath R. 578 Morley v. Gainsford 604 Morning Light, The 642, 650 Morris R. v. Ayres 303 Morrison v. Davis 163, 226 a V. Mutual Alliance Ins. Co. 153 Morse v. Androscoggin R. 491 V. Conn. River R. 468 V. Rutland R. 567 c V. Slue 87, 129, 189, 220, 518 Morville v. Great Northern R. 245 Moses V. Boston R. 75, 245, 303 V. Norris 70, 80, 163, #30, 433 Moses Taylor, The • 610 Moshier v. Utica R. 567 Mosley v. Fosset 52 Moss V. Johnson 578 Mott !). Hudson River R. 567 J Mouse's Case 215 Muddle V. Stride 83 MuUer v. Gernon 416 MuUoy V. Backer 391 Mumford v. Commercial Ins. Co. 403 Munger v. Tonawanda R. 557, 567 Munn V. Barker 246 Munroe v. Leach ' 557, 559 Munster v. South Eastern R.. 108 Mureh v. Concord R. 68, 538 V. New York R. 567 c Murphy v. Stanton 80, 202 Murray v. South Carolina R. 578 Murrell v. Dixey 490 a Muschamp «. Lancaster R. 95, 97 Myers v, Baymore 354 Mytton V. Cock 25 V. Midland R. 95 N. Najao V. Boston R. 531 Nashville R. v. Messiuo , 78, 538 Nathan v. Giles , 508 Naugatuck R. v. Waterbury But- ton Co. 95 Neal V. Sanderson 226 Section Neish V. Graham 386 Nellis V. New York R. 609 Nelson v. Mackintosh 23, 26, 27, 28 0. Stephenson 400, 414 V. Woodruff 211, 223, 414 Neptune, The 193, 644 a Netherlands Steamboat Co. v. Styles 643 Nettles V. South Carolina R. 283, 490 a Nevins v. Bay State Steamboat Co. 114, 115, 250 New Albany R. v. Aston 567 c V. Campbell 302 V. McNamara 567 c V. Maiden 567 c V. Pace 567 c t). Tilton 567 c Newberry v. Colvin 378 Newborn v. Just 267, 463 New Brunswick Steamboat Co. V. Tiers 155, 157 New Haven Steamboat Co.'u. Vanderbilt 167, 638 New Jersey R. v. Kennard 538, 559, 569 V. Pennsylvania R. 78, 221, 265 New Jersey Steam Nav. Co. v. ' Merchants' Bank 98, 100, 124, 153, 158, 166, 221, 225, 237, 239 a, 244, 251, 267, 268, 275, 419 420, 466, 494, 515, 610 Newman u. Walters 623 New Orleans v. Ship Windermere 611 Newsom v. New York R. 565 Newstadt v. Adams 38, 253 Newton v. Pope 375 V. Tring 61 New World, Steamboat, v. King 23, 521, 528, 621 New York, City of, v. Miln 631 Nav. Co. V. Young 397 R. V. Skinner 559 Steamboat, v. Rae 643 Transp. Co. v. Philadel- phia Steam Nav. Co. 636, 650 o Niagara, Propeller, v. Cordes '212 Nichols V. Clint 510 V. Le Feuvre 343 Nicholson, In re 124 V. Willan 220, 232 NicoUs V. Bastard 493 Noden v. Johnson 623 Nolton V. Western R. 528 Nordemeyer v. Loescher 115, 365 Norman v. London R. 212 Norris v. Androscoggin R. 567 c SXVUl INDEX TO CASES CITED. Sectioa North Pennsylvania B,. u. Heile- man 565 North Pennsylvania R. v. Keh- man 567 c North Pennsylvania R. v. Robinson 601 Northern v. Williams 315 R. V. Fitchburg R. 134 V. Page 609 V. Scholl 530 d, 531 Indiana R. v. Martin 567 c Norway Plains Co. v. Boston & Maine R. 303 Nourse V. Snow 485 Noyes v. Morris 557 V. Rutland R. 95 Nudd V. Wells 283 Nutting V. Conn. River R. 95 D. 563 Oakland Rt v. Fielding Oakley v. Portsmouth Steam Packet Co. 153, 189, 201 O'Brien v. Gilchrist 231 O'Connor v. Forster 483 Ogle V. Atkinson . 335 V. Barnes 603 Ohio R. V. Dunbar 214 a V. McClelland 567 c Ohrloff u. Briseall 202,212 Oldfield V. New York R. 562, 601 Olive V. Eames 69 Oliver V. Maryland Ins. Co. 1 76 V. New York R. 538 Oppenheim v. Russell 346, 362 Orange County Bank v. Brown 115, 127, 141, 152, 153, 245, 258, 262, 264, 266, 422, 426 Ormond v. Holland 578 Ostrander v. Brown 291, 300, 301, 305, 311, 323 Otis V. Thorn 636 Ouimit V. Henshaw 114, 115 Overington v. Dunn 563 Overseers v. Warner 69 Owen V. Hudson River R. 557 The Steamboat v. Johnson 223 Owenson v. Morse 344 Oxlade, In re 124 V. North Eastern R. 78 Packard v. Getman 146, 813 Page V. New York R. 533 Palfrey v. Portland R. 600 Section Palmer, In re 257 y. Barker 636,637 V. Grand Junction R. 78, 214, 249, 539, 571 V. Lorillard 400 Paradine v. Jane 59, 294 Pardee v. Drew 115, 262 Pardington v. South Wales R. 255, 257 Parker v. Adams 557 V. Flagg 95, 157, 224, 282 V. Great Western R. 78, 128, 136 V. James 206 Parmelee v. Fischer 115 V. McNulty 112, 480 PaiTy V. Roberts 39 Parsons v. Hardy 81, 160, 283, 289, 332 V. Monteith 239 a Pate V. Henry 290 Patterson v. Wallace 559 Patton V. Magrath 83, 159, 224, 230, 435, 438, 456, 519 Pawson V. Watson 294 Payne v. Partridge 113 !*. Smith 602 Pearson v. Duane 125, 490 a, 525, 532 V. Gbschen 381 Peck V. Ellis 427 V Neil 534, 540, 541, 545, 570 Peek V. North Staffordshire R. 255, 257 Peixotti V. McLaughlin 109, 110, 111 Pender v. Robbing 90 Pendergast v. Compton 622 Peninsula Steam Nav. Co. v. Shand 202, 225 Pennewill v. Cullen 68, 182 Pennsylvania Nav. Co. v. Dan- dridge 59, 86 Pennsylvania Nav. Co. v. Hungeiv ford 530 Pennsylvania R. v. Henderson 528, 601 V. Kelly 562 V, Kilgore 559 V. McCloskey 266, 367, 598,600 a V. Schwarzenber- ger 107 V. Zebe 521, 601 Penny v. Porter 442 Penobscot Boom Co. v. Baker 45 Penoyer v. Hallet 399 Penrose v. Wilkes 397 People V. Caryl 532, 609 V. Jillson 609 Perkins u. Eastern R. 567 V. New York fe. 23, 250, 528, 601 V. Portland R. 95 INDEX TO CASES CITED. XXIX Section Perth, The 650 a, 65G Peters v. Kyland 78 Petley v. Catto 667 Peyroux v. Howard 610 Peytona, The 218, 298,469 Philadelphia K. v. Derby 521, 528, 572 V. Hummell 559 V. Spearen 562, 565 V. Wilt 606 Philleo V. Sanford 163 Phillips V. Biggs 427 V. Brigham 175 V. Clark 202, 212 V. Earle 137, 264 V. Edwards ' 202, 222 V. Kodie 381 Philpott V. Kelley 62 Pickering v. Barclay 166, 200 V. Busk 355 Pickett V. Downer 315 Pickford v. Grand Junction E. 78, 124, 125, 136, 278,418 Piddington v. South Eastern K. 124 Pier V. Finch 609 Pierce v. Winsor 212 Piggot V. Eastern Counties K. 566 Pinney v. Wells 385, 388 Pitman v. Hooper 399 Pittsburgh v. Grier 436 R. V. Hinds 521 Place V. Potts ^ 419 Place V. Union Exp. Co. 294 Plaisted v. Boston Steam Nav. Co. 282, 633 Piatt V. Hibbard 61, 63, 75, 134 Pluckwell V. Wilson 167, 549, 556, 565 Pomeroy v. Donaldson 82, 153, 165 Pool V. Bridges 468 Porter v. Chicago R. 304 V. New York R. 609 V. Steamboat New England 531 Porterfield v. Humphrey 83, 274 Portland Bank v. Stubbs 376 Postern v. Postern 468 Potter V. Lansing 4^7, 503, 505 V. Pettis 645 V. Suffolk Ins. Co. 180 Poulton V. London R. 572 Powell V. Bradlee 506 V. Bucks 349 V. Layton 422, 426 V. Mills 77, 82 V. Myers 83, 110, 114, 270, 318, 320, 321, 324 V. Pennsylvania R. 214 a, 26 7 Powers V. Davenport 76, 164 V. Mitchell 58 Poynter v. James 386 Section Pozzi V. Shipton 422, 437 Price V. Powell 315, 505 Priestly v. Fowler 577, 578, 600 Pritchard v. La Crosse R. 567 c Protector, The 665 Pudor V. Boston R. 115, 478 Purviance v. Angus 519 Putnam v. Wood 173 Pym V. Great Northern R. 600 a Quarman v. Burnett Quiggin V. Duff Quimby v. Vermont R. V. Vanderbilt R. 575 313, 314 657j 567 '531 Railroad Co. v. Aspell 557 V. Skinner 567 c V. Yeiser 566 Rainbard v. Hovey 585 Raisin v. Mitchell 638, 639 Raitt V. Mitchell 386, 390 Ralston v. The States' Rights 633 Randleson v. Murray 129 Ranger v. Great Western R. 220 Eansome, Jn re .1 24 Raphael v. Pickford 45, 284, 448 Rapp V. Palmer 351, 355 Rappelyea v. Hulse 602 Rapson v. Cubitt 574 Rathbun v. Payne 556, 637, 638 Ranch v. Lloyd 562, 575 Rawson v. Haigh 468 V. Johnson 418 R. B. Forbes, The 667 Read v. Spaulding 75, 95, 163 Readhead v. Midland R. 535, 538 Beady v. Steamboat Highland Mary 182 Reaves v. Waterman 153, 182, 198 Rebecca, The 205, 218 Redden v. Spruance 468, 530 Reed v. Dick 208 Reedie v. London R. 575, 600 a V. Northwestern R. 600 Reeside, The Schooner 229 Reeves v. The Constitution 193, 641, 642, 666 Relf V. Rapp 258, 261 Rendsberg, The 26 Rescue, Steamboat 664, 667 Rexu. Bass 477 V. Everett 440 XXX INDEX TO CASES CITED. Section Kex V. Humphrey 66, 358 V. Lavenden 477 V. Watts 646 Reynolds v. Tappan 147 Rhode Island, Steamboat 670 a Rice V. Baxendale 482 Rich V. Kneeland 79, 189 Richards v. Gilbert 80, 160 V. London R. 95, 113, 318 V. Westcott 74, 115, 262, 266 Richardson v. Atkinson 431 V. Dunn 497 V. Young 407 Richmond v. Sacramento R. 567 c Ricketts w. East India Docks R. 567 Ridley v. Gyde 468 Rigby V. Hewitt 636 Riley V. Home 124, 125, 152, 202, 220, 233, 259, 266, 267, 356 Ringgold V. Haven 462, 482 Ripley V. Schaife 173 Ritchie v. Atkinson 398 Rival, The Brig 655 Roberts v. Great Western R. 567 c Roberts v. Riley 202, 221 V. Turner 75, 94, 153 Robertson v. Kennedy 74, 155 V. New York R. 528 Robins, Ex parte 125 Robinson v. Austin 433 V. Baker 365 V. Cone 562 V. Dunmore 57, 59, 113, 142, 334, 464,500 V. Threadgill 19 V. Turpin 308 V. Ward 48 Rocheran v. Bark Hansa 202, 212 Eodrigues V. Melhuish 664 Rogers v. Head 49, 124 V. Imbleton 606 V. Murray 212 V. Newburyport R. 567 c V. Steamer St. Charles 641 V. Weir 837 a V. West 407 Rohlw. Parr 172 Rome R. Co. v. Sullivan 95, 186, 283, 313, 433' Rood V. New York R. 566 Rooke V. Midland R. 430 Rooth V. Wilson 24, 34 V. North Eastern R. 257, 528 Rose, The 647, 650, 652, 656 Rosetto u. Gurney 402 Roskell V. Waterhouse 75, 134 Ross V. Boston R. 567 a V. English 186, 198 Section Ross V. Hill 46, 49, 60, 112 V. Johnson 63, 326, 422, 431, 433 Rossiter v. Chester 328, 332 Roth u. Buffalo R. 114 Rothero v. Elton 469 Rowland v. Miln 300, 329 Rowley v. Bigelow 231 V. Home 249 Rowe V. Pickford 302, 341 Rowning u. Goodchild 120 Ruck V. Williams 538 Ruggles V. Bucknor 379 Runyan v. Caldwell 61, 122 V. Morgan 520 Rushforth v. Hadfield 66, 301, 357, 358, . 359, 360 Russell V. Anstwick 586 V. Hudson River R. 578 V. Livingston 103, 323 Russian Steam Nav. Co. v. Silva 229 Ruthford v. McGowen 82, 204 Rutley V. Southeastern R. 212 Ryan v. Cumberland Valley R. 578 u. New York R. 567 a Ryder v. Hall ' 231 S. Sack V. Ford 212, 518 Sager v. Portsmouth R. 247, 266 Salem's Cargo, The 380 Sales V. Western Stage Co. 568 Salmon Falls Co. v. Bark Tangier 90 Saltus V. Everett 349, 352, 354 V. Ocean Ins. Co. 398, 414 Sampson v. Gazzam 166 Sampson, Steam Tug 667 Samuel v. Darch 444, 464 V. Judin 441 Sandeman v. Scurr 212, 518 Sanders v. Vanzeller 397 V. Young 82 Sanderson v. Lamberton 466, 494 Sanford v. Eighth Av. R. 609 V. Housatonic R. 464 Sangamon R. v. Henry 482 Sanquer v. London R. 324 Sappho, The 661 Sarah, The Schooner 164 Sargeant v. Gile 431 Sargent v. Morris 495, 504, 506 Satterlee v. Groat 46, 72 Saville v. Campion 376, 377, 395 Sawer v. Joslin 316, 340 Saye v. Guttner 66, 75, 95, 303 Sayward v. Stevens 218, 398, 433 Scaife v. Tobin 397 Scarfe v. Morgan 66 INDEX TO CASES CITED. XXXI Section ScWeffelin v. Harvey 147, 190, 518 V. New York Ins. Co. 187 Schmidt v. Blood 61 Schofield V. Sohunck 567 Scholes V. Ackerland 313 Schopman u. Boston R. 531, 538 Schroeder v. Hudson River R. 95 Schroyer v. Lynch 119, 120 Schureman v. Withers 393, 413 Scioto, The 643, 644 a, 649 Soothorn v. South Staffordshire R. 95 Scott V. Pettit 345 Scovill V. Griffith 432 Searle v. Lindsay 578 u. Scovil 403 Sears v. Eastern R. 527 a V. Wills 370 V. Wingate 231 Seaver v. Boston R. 577 Seecombe v. Wood 644 Segura v. Reed 315 Selway v. Holloway 143 Senior u. Ward 576 Seringapatam, The 652 Sewall V. Allen 99, 264 Seymour v. Greenwood 572 Shannon, The 657 Sharp V. Grey 535, 538 Sharrod v. London R. 567 c Shaw V. Boston R. 565 V. Gardner 229, 472 V. South Carolina R. 482 V. Reed . 664, 665 V. York R. 275, 446 Sheffield v. Rochester R. 558 Sheldon v. Hudson River R. 566, 567 V. Robinson 46, 77, 100, 127, 153, 327 Sh^by V. Scotchford 335 Shepard u. Buffalo R. 667 c V. De Bernales 397 Shepherd v. Naylor 231 Sheridan v. New Quay Co. 335 Sherrer v. Kissinger 637 Shields v. Davis 492 Shiells V. Blackburn 21, 36 Shilliber v. Glyu 19 Shipper v. Penn. R. 124 Shipton V. Thornton 402 Shubrick v. Salmond 294 Siboni v. Kirkman 595 Sidaways v. Todd 75 Sill V. South Carolina R. 122 Sills V. Brown 167, 556, 638, 651 Simmons v. Law 75, 229 V. South Eastern R. 482 Simons v. Great Western R. 221, 255, 257, 446 Section Simpkins v. Norwich Steamboat 75 Simpson v. Hand 556, 565, 634, 636, 649 Sims V. Bond 494 Sinclair, In re 90 Singleton v. Eastern Counties R. 562 I'. HlUiard 230, 244 Siordet v. Brodie 620 V. Hall 83, 161 Sissons V. Dixon 416 Skinner v. Chicago R. 303 V. London R. 541 V. Upshaw 356 Skipp I'. Eastern Counties R. 578 Slater v. Gaillard 356 Sleade v. Payne 287, 300 Sleat V. Fagg 12, 264, 266, 435 Sleath V. Wilson 573 Slim t). Great Northern R. 245, 275, 441 Small V. Moates 380 Smedes v. Bank of tJtica 19 Smeed v. Foord 482 a Smith V. Birch 491 V. Birmingham R. 212 V. Boston R. 115 V. Brighton R. 115 V. Condry 664, 665, 670 a V. Dobson 64B V. Eastern R. 567 c V. Great Eastern R. 521 V. Griffith 488 V. Home 55, 220, 232, 450 V. Nashua R. 4, 281, 296, 303, 315 V. New Haven R. 214 a V. New York R. 267, 528, 538, 578 V. O'Connor 562 V. Scott 166, 636 V. Seward 82, 215, 218, 405, 407, 422, 424, 436, 439 V. Shepherd 195 V. Smith 557, 636 V. The Creole 664, 667 Smurthwaite v. Wilkins 397 Smyrl v. Nolan 81, 153, 182, 187, 202 Smyth V. Wright 407 Sneider v. Geiss 478 Snell U.Rich 193,664 Snow V. Eastern R. 480 V. Housatonic R. 559, 563, 577, 578 Soblomsten, The . 405 Sodergren v. Flight 370, 373 Somes V. British Empire Shipping Co. 352 Southcote's Case 37, 220 XXXll INDEX TO CASES CITED. Section South Carolina R. v. Bradford 95 South Western E. v. Paulk 547, 601 Spence v. Chodwiok 148, 226 a, 400 Speuoer v. Campbell 567 U.Daggett 81,153 V. Utioa K. 557 U.White 397 Spivy V. Parmer 80, 82, 91 Spofford V. Harlow 559 Spooner v. Brooklyn City K. 559 Sprague v. Smith 78, 531 Spring V. Haskell 90, 482, 484 Sproul V. Hemmingway 667 Sprowl V. Kellar 83, 155, 157 Stables v. Eley 572 Stainback v. Kae 642 Stanton v. Bell 33 Staples V. Bradley 352 Stapley v. London R. 565 State V. Overton 609 V. Ross 609 V. Thompson 609 of Iowa V. Chovin 609 St. Cloud, The _ 212 Steamboat Co. v. Atkins 348 V. Bason 83, 153, 157 V. Whilldin 642, 643, 649, 651, 657, 661, 670 a ffteamship Co. v. JolifiFe 665 Stearns v. Old Colony E. 567 c Stebbins i). Palmer 593 Steele v. McTyler 8'0, 182 Steinman v. Wilkins 66, 126 Stephen v. Smith 532 Stephens v. Elw'Sl 270 Stephenson v. Hart 270, 297, 325, 326, 496, 502 V. New York R. 579, 579 a Stevens V. Boston R. 365 V. Sayward 398 Steves V. Oswego R. 557, 559 Stewart v. Pratt 38 ■vStinson v. New York R. 563 Stitt-!),. Wilson 468 St. John'u. Van Santvoord 95, 97 Stokes V. De La Riviere 339 V. Saltonstall 61, 122, 523, 541, 543, 547, 568, 569 Stockdale v. Dunlop 496 Stockton V. Fry 521, 541 Stone V. Ketland 519 V. Knowlton 441, 442 Storer «. Gowen 4, 27, 40' Stork V. Harris 120 Storr V. Crowley 295, 297, 304 Straiton v. New York E. 531 Streeter v. Horlock 75, 445 Strong V. Natally 281, 308 Section Strout V. Foster 643 Stuart V. Crawley 214 Stubley v. London R. 565 Sturgess v. Steamboat Columbus 227 Sturgis u. Clough 670 a Sullivan v. Philadelphia R. 538 Sultana, Steamboat, u. Chapman 178, 311 Sunbolf u. Alford 69, 375 Sutton V. Kettell 231 Swain V. Shepherd 495 Swainston v. Garrick 212 Sweeny v. Old Colony R. 563 Sweet V. Barney 297, 323 Swett V. Black 397 Swift V. Moseley 349 Swigert V. Graham 122 Swinburne v. Massue 282 Swindler v. Hilliard 83, 153, 159, 224, 230, 267 Syeds v. Hay 339 Syms V. Chaplin 140, 144 Taintor v. Prendergast 494 Tamvaco v. Simpson 386 Tapley v. Martin 397 Tarbox v. Eastern Steamboat Co. 223 Tardos v. Ship Toulon 202 Tarrant v. Webb 578 Tate V. Meek 384 Tattan u. Great Western R. 422, 437 Taylor v. Great Northern R. 283 In re 468 v'. Plummer 335 V. Wells 105, 446, 447 Teall V. Sears 75, 95 Telfer I). Northern R. ,546,565,601 Terre Haute R. v. Augustus 567 c V. Vanatta 609 Thames, The 652, 669 Thomas v. Boston E. 45, 69, 73, 75, 96, 153, 243, 267, 303 V. Day 282 V. Ship Morning Glory 202, 212 V. Snyder 397 Thompson v. Bridgewater 558 u. Small 393 V. Trail 393 V. Whitmore 166 Thorn v. Hicks 518 Thome v. California Stage Co. 521 V. Deas 19 V. Hallett 469 Thorogood u. Bryan 561, 636 INDEX TO CASES CITED. XXXlll Section Thorogood v. Marsh 156 Thorpe v. Kutland K. 667 c Thurman v. Wells 91, 153, 356 Thwing. V. Washihgton Ins. Co. 402 Tichburne v. "White 248 Tilley v. Hudson River R. 601 Tindal v. Taylor 393 TirreU v. Gage 294, 401 Tobin V. Crawford 397 Todd V. Pigly 19, 334 V. Old Colony R. 628, 659, 669 Tompkins v. Saltmarsli 27, 29, 40, 45, 64, 468 \ Tompson v. Lothrop 469 ^onawanda R. v. Munger 567 c Tooker v. Gormer 324 'Tootney v. London R. 559 Tounlsy v. Crump 340 Tower v. Utica R. 113, 140 Towns V. Cheshire R. 567 Tracy v. "Wood 22, 27, 29, 30, 32 Trask V. Duvall 397 V. Jones 223 Traveller, The 654 Travis v. Thompson 357 Tread well v. Union Ins. Co. ' 187 Treasurer, Sch. 397, 400 Trent v. CartervjUe Bridge Co. 82 Trent Nav. Co. v. Wood 79, 87, 149, 154, 196 . Trow V. Vermont R. 557, 559, 567 Trowbridge v. Chapin 146 a Tuberville v. Stampe 567 Tucker v. Cracklin 449, 470, 472 ' «. 'Humphrey ■ 341 Tuller V. Talbot ' 540 Tunnel v. Pettijohn 99 Tunney j;. Midland R. 578 Turley v. Thomas 550 Turner v. Hawkins 606 V. Ship Black Warrior 231 V. Wilson 202 Turney v. Wilson 71, 80, 155, 168, 230 Turrill v. Crawley 367 Tyler v. Morrice 127, 259 U. Union Steamship Co. v. New York Steamship Co. 642 United States Ins. Co. v. Jones 200 V. Palmer 200 V. Pirates 200 V. Scott 354 V. Smith 2* Section United States Ins. Co. v. The Louisa Barbara ' 627 United States Ins. Co. v\ TuUy 200 Underbill u. Ne w York R. 667 Upshare v. Aidee \ 107, 111 Upston V. Stark \ 69, 463 Vale U.Dale \ 497 Valieri v. Bdyland \ 231 Van Buskirk v. Roberts 53k 609 Vanderbilt u. Richmond Tump. Co. 660 Vanderplaiik v. Miller 556, 635 Van Horn v. Kermit , 113, 114, 115 Van Natta v. Mutual Ins. Co. 349 Van Santvoord v. St. John 281, 301, 316 ^ Van Toll v. South Eastern R. 114 ^ Van Winkle v. U. S. Mail Steam- ship Co. 337 a Vaughan v. Taff Vale R. 567 Vaughn v. Menlove 7, 27, 567 Vaux V. Shaffer 641 Veazie v. Penobscot R. 663 Vedder v. Fellows 609 Vennal v. Garner 635, 651 Vere u, Smith 108' Verner v. Sweitzer 61, 74, 250 Vernon, The " 665 Veruna, The Brig v. Clark 642 Victoria, The 641 Vincent v.' Stinehour 602 Vintgn v. Middlesex R. 532 Violett V. Stettinius 404 Virgil, The 642, 650 Virginia R. v. Sanger 575 Steamboat-1), Kraft 367 Volcano, The 644 W. W. & A. Railroad v. Kelly 495 Waite V. North Eastern- Rt 662 Wakefield v. Connecticut R. 565 Wakeman v. Robinson 663 Waland v. Elkins 93, 516, 581 Walcott V. Canfield 438, 591 Waldron v. Hopper 602 Walker v. Boston Ins Co. 90 V. Jackson 51, 82, 113, 133, 264 V. London E. 214, 214 a ». Southwestern R. 638 V. Transportation Co. 90 V. U. S. Ins. Co.' 644 XXXlV INDEX TO CASES CITED. Section Walker v. York R. 247 Wallace v. Redssalaer E. 567 V. Vigus 160, 283, 464, 484 V. Woodgate 373 Walpole V. Bridges 153 Walston u. 'Myers 86,518 Walter v. Brewer 146 Warburton v. Great Western R. 578 Ward w.Felton 371 V. Suh. Dousman 644 a p. Whitney 231 Warden V. Mourillyan 294, 300, 307, 313 Warden v. Greer 83, 211, 231, 414, 483 Wardlaw v. South Carolina R. 303 Ware v. Gay « 470, 534, 535, 569 Wareham Bank v. Burt 294, 337 a Waring v. Clarke 610, 647, 648, 650, 658, 669 Warren v. Fitohburg R. 521, 538, 559 Washburn. u. Tracy 557 Washington, The 669 V. Ship Saluda 193 Waterhouse v. Skinker 418 Waterman v. Robinson 348 Waters v. Merchants' Ins. ' 201 )). Moss 567 c Water Witch, The 205, 223 Watkinson v. Laughton 189, 484, 518 Watson V. Ambejgate R. 95 V. Duykinek 391, 393 Wattson V. Marks 90 Wayde v. Carr 549, 550 Wayland u. Mosely ' 231 Wayne v. Steamboat Gen. Pike ^ 230 Weall V. King 436 Webb, In re 75, 302, 304 V. Page 265, 452 Weed V. Panama R. 572 . V. Schenectady R. 78, 94, 95, 115,422, 426, 428, 429, 441, 531 Weems o. Mathieson 578 Welles V. New York Central R. 225, 528 Wells V. New*York R. 23, 528 V. Steam Nav. Co. 59, 86, 221, 239 V. Thomas 357 V. Wilmington R. 146 a Welsh V. Hicks 407 V. Lawrence 563 V. Pittsburg R. 214 a, 267 West V. Steamboat Berlin 160, 173, 231 Western Belle, The, v. Wagner 660 Western Transp. Co. v. Newhall 223, 237 Wetmore u. Baker Whaalan v. Mad River R. Whalley v. Wray Wheatly v. Lane White V. Bascom V. Boulton V. Concord R. ». Crisp V. Great Western R. Section 684 578 57 19, 600 492 513, 521 567 e 646 446 V. Humphery 17 V. Steam Tug Mary 86 V. Toncray 125 V. Vankirk 229 V. Vann 348, 357, 414, 497 V. Winnisimmet Co. 47, 82, 140 , Whitehead v. Greetham 19 Whitesell v. Crane 110, 248, 249, 476, 527 Wiiite'sides v. Russell 168, 202, 227 V. Thurlkill 269 Whitfield V. De Spencer 117 Whitford V. Panama R. 601 Whitmore v. Bowman 82 V. Steamboat Caroline 103, 115 Whitney v. Atlantic R. 567 c ■ V. Lee 7, 21, 60 Whittemore v. Waterhouse 469, 603 Wibert v. New York R. 283, 485 Wicks V. Gordon 449 Wigmore v. Jay 578 WillDraham v. Snow 348 Wilcox V. Parmelee 95, 1 78 Wilds V. Hudson River R. 546, 559, 565 Wilkie V. Bolster ' 569 Williams v. African Steamship Co. 90 V. Branson 80, 81, 168 V. Cranston 89, 146, 277, 514 V. Everett 510 K.Grant 80,88,166,176, 183,226 V. Great Western R. 257 V. Holland 167, 556, 599 V. Michigan R. 567 c »; Peytavin 129 V. Taylor 122 V. Vanderbilt 95, 490 a, 531, 620 a Williamson v. Barrett 643, 670 a V. Clements 19 V. Dolsen ~ 136 a V. Price 193, 664 Williard v. Bridge 432 Willis V. Long Island R. 528, 557 Willoughby v. Backhouse 338 k ■ V. Horridge 82, 140 Wilmshurst v. Bowker 511 INDEX TO CASES CITED. XXXV Section Wilson V. Anderton 335 V. Brett 23,36 V. Dickson 90, 187 V. Freeman 278 V. Furman 515 V. Hany 95, 227 V. Kymer 371 V. London Steam Nav. Co. 309 V. Millar 187 V. Newport Dock Co! 482 a, 547 V. Kockland Man. Co. 549 V. York R. 10, 490 a Wilsons V. Hamilton 130, 214 Wilt V. Vickers 607 Wilton V. Atlantic Nav. Co. Ill, 115 Wing u.'New York R. 160, 466 Winkfield v. Packinaton 127 Winterbottom v. Wright 579 Wise V. Great Western R. 255, 257 Withers v. North KenfcR. 538 Wolcott V. Eagle Ins. Co. 394 Wolf V. Beard 564 V. Summers 375, 609 a Wolfe V. Myers 231 Woodard v. Eastern Counties R. 609 Woodbury v. Frink 470 Woodger v. Great Western R. -284, 482 a, 490 a Woodlelf V. Curteis 148, 149 Woodrop Sims, The 642, 651, 670 Woods V. Devin 115, 282 Woodward v. Booth 449 Wooley V. Riddlelien 283 Woolson V. Northern R. 567 c Wooster V. Tarr 397 Wordsworth v. Willan 552 Section Worley v. Cincinnati R. 600 Wright V. Boughton 281 V. Caldwell 146 a, 480 V. Maiden R. 562 V. New York K. 578 V. Snell 361, 495 V. Wilcox 603, 604, 605 Wyld v. Pickford 23, 54, 233, 245, 267, 268, 356, 423, 428,, 430, 432, 454 Wyman v. Penobscot R. 5B7 c Wynn v. AUard 541, 365 Yate V. Willan Yates V. Brown u. Duff i;. Mennell V. Railston Yonge V. Pacific Mail S. Co. York Co. V. Central Railroad R. V. Crisp Yorke v. Grenaugh Yoq^t). Harbottle Young V. Fewson V. Kimball ' V. Smith 446 193, 664 618 384 384 490 a 224 275, 441 363 270, 326, 432, 433 613 348 286, 295, 297, 304 68, ; z. Zell V. Arnold 428, 451 Zerega v. Poppe 166, 472 Zone, The Ship 202 Zwilchenbart u. Henderson 397 TREATISE ^ LAW OF CARRIERS CHAPTER I. PEBLIMINAET VIEW OF THE LAW OF BAILMENTS. § 1. Ant person undertaking gratuitously to convey for another person goods, chattels, &c., is called, in the Civil Law, mandator rius, and by the writers and commentators on the Common Law, the mandatary ; and the person who, for such purpose, employs him, is, in the language of the Civil Law, mandans or mandator, or director or employer. But thepersons who constitute the most numerous class of carriers are those who xmdertake to carry for another for hire or reward. Every person who accepts goods or money to be carried to a particular destination for reward, paid or agreed to be paid him for the carriage of them, impliedly lets out his labor and care in return for the reward ; and the contract be- longs to the class Locatio Operis, which was styled by the Roman Jurists Locatio Operis Mercium Vehendarum, or the letting out of the work of carrying merchandise. The owner of the merchan- dise, who delivered it to the carrier to be carried, was the letter of the work of carrying, and he was also at the same time the hirer of the^labor and services of the carrier ; whilst, on the other hand, the carrier was both the hirer of the work of carrying and the let- ter of his own labor and services, to be employed with care about the conveyance of the merchandise. Of this description of carriers there are known in the Common Law two kinds, viz., private car- riers and public carriers ; the latter being usually denominated common carriers, and being by far the most numerous and most important class of paid carriers. 1 2 LAW OF CARRIERS. [CHAP. I. § 2. By the Common Law, the liabilities resulting from the delivery of goods to a carrier of either •f the above-mentioned descriptions, to be carried, forms an important part of the law of bailments. Indeed, of all the various contracts that belong to the head of bailment, that between a carrier and his employer is by far the most important, extensive, and useful. But there is high authority for the propriety of directing attention to the law of bail- ment in general for a just comprehension of that portion of it to which persons acting especially in the capacities of carriers are subject. Lord Chief Justice Holt, in giving judgment, with much consideration, in the celebrated case of Coggs v. Bernard, upon a question involving the principle of responsibility for the safe con- veying of goods, deemed it proper, iii order " to show the grounds upon which a man shall be charged with the goods put into his custody, to show the several sorts of bailments " ; and this, says he, he did, " not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation which is upon persons in cases of trust." ^ If it be required, then, in the opinion of one of so high authority, of a Judge, to proceed in the mode thus suggest- ed, to be enabled to. arrive at a satisfactory conclusion upon a sin- gle propounded question involving the principle of the legal liabil- ■ ity of carriers, how much to be respected is the suggestion by an author professing to consider every question which has been pro- pounded to the Courts of Common Law on that subject, from the earliest to the latest adjudged case. It thus seems, as it were, imperative, before commencing to treat, as is now proposed, of the law of carriers as a distinct and independent subject, to show the several sorts of bailments, and to give a compendious view of that more general branch of the law to which the decisions in respect 1 Coggs a. Bernard, 2 Ld. Kaym. 909. In this case Lord Chief Justice Holt seems to have traced with great attention the subject of bailments, and he cites many passages from Bracton -which he has nearly copied from Justinian. The report of this case in the first volume of the Reports of Sir John Comyns, p. 138, is not near as full and satisfactory as the report in Lord Raymond's Reports, just referred to. The learned editor of Coke upon Littleton, speaking of Lord Holt's argument in this case, says : " Lord Chief Justice Holt's argument in that case, as reported by Lord Raymond, particularly merits attention, it being the most masterly view of the whole subject of Bailment." Harg. Co. Litt. 89, b, n. 3. Abridged reports of different parts of Lord Holt's opinion are in Holt's Reports, IS, 131, 628. CHAP. I.J BAILMENTS. 3 to the legal liability of a carrier have reference ; and it is intend- ed, in so doing, to have free recourse to the profound legal erudi- tion and philosophical labors both of Sir William Jones ^ and the late learned Mr. Justice Story .^ § 3. Sir William Jones, it may be premised, has expressed his astonishment at the fact, that so important a branch of jurispru- dence as the title bailment, in the English law, should have, from the reign of Elizabeth to the reign of Anne, produced more con- tradictions and confusion, more diversity of opinion and inconsist- ency of argument, than any other part of judicial learning equally simple.^ § 4. To begin with the definition of the term bailment. It is derived from the French word bailler, which signifies to deliver ; * and it is a compendious expression to signify a contract resulting from delivery.^ Sir William Jones has defined bailment to be " a delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or according to his direc- tions, as soon as the purpose for which they are bailed shall be answered." ^ In another part of his essay he offers a definition in language somewhat different, saying, " a delivery of goods in trust, on a contract, express or implied, that the trust shall be duly ex- ecuted, and the goods redelivered, as soon as the time or use, for which they were bailed, shall have elapsed or be performed." ^ Blackstone has defined bailment to be " a delivery of goods in trust upon a contract, express or implied, that the trust shall be faithful- ly executed on the part of the bailee " ; ^ and again, a " deliv- ery of goods to another person for a particular use." ® Story, without professing to enter into a minute criticism, thinks it may J An Essay on the Law of Bailments, by Sir William Jones (4th Eng. edit.). ' Commentaries on the Law of Bailments, with Illustrations from the Civil and Foreign Law, by Joseph Story, LL. D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University (4th edition, 1846). * ' Jones on Bailm. 2, 3. * 2 Bl. Com. 451. " It may be observed," says Sir William Jones, " that this is the only contract to which the French (from whom our word bailment was bor- rowed) apply a word of the same origin ; for the letting of a house or chamber for hire is by them called bail a layer, and the letter for hire baUleur, that is, bailor, both derived from the old word bailler, to deliver." Jones on Bailm. 90. ' Story on Bailm. § 2. » Jones on Bailnj.'l. ' Ibid. 117. 2 Bl. Com. 451. 9 Ibid. 395. •i LAW OF CAEEIEES. [OHAP. I- be said, that " a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust." ^ Kent may be considered to have blended, in some measure, the definitions of Jones and Blackstone,^ and he refuses to apply the term bailment to cases in which no return or delivery, or redelivery to the owner or his agent, is contemplated. " Bailment," he says, " is a deliv- ery of goods in trust, upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered." ^ In these definitions, it will be observed, bailment is called a contract ; ' Story on Bailm. § 2, p. 4 (4th edit.). ' So Story thinks. Story on Bailm. uh. sup. ' 2 Kent, Com. 558. In Les Termes de la Ley, first published in 1563, there appears the following definition of bailment, and one which shows that the princi- ples of this branch of the law were not as above stated in the text, at so late a period as that between the reigns of Elizabeth and Anne, clearly understood. The definition is, — " Bailment is a delivery of things, whether writings, goods, or stuff, to another ; sometimes to be delivered back to the bailor, that is, to him that so delivered it; sometimes to the use of the bailee, that is, of him to whom it is delivered; and sometimes also, it is delivered to a third person. This delivery is called a bailment." This definition is considered singularly loose and unsatis- factory, and, considering the recognized accuracy of the work from which it is cited, it is corroboratory proof that, at the time the above-named work was first published, the principles of this branch of the law were not very clearly under- stood ; for it mentions as a class of bailments, distinct from those in which there is to be a redelivery to the bailor, or a delivery to a third person, the case of goods delivered to the use of the baUee ; but in all such cases there must be a trust to redeliver to the bailor, or to deliver to a third party, or there would be no bailment ; the last-mentioned class is also very incorrectly worded, — " Some- times, also, it {(piery what ?] is delivered to a third person." If this be taken to mean that the subject-matter of the bailment is delivered to a third person, he would be the bailee: but the meaning must be (though the original French — " II est deliver a un tierce person " — will hardly warrant that construction), that the thing bailed is to he delivered by the bailee to a third person. See English Monthly Law Magazine for April, 1839. Where a cofltract was made between a miller and other persons, by which the former agreed to take from the latter wheat, and give them one barrel of flour for every four bushels and thirty-six pounds of wheat, it was held, that the contract was one of sale, and not of bail- ment ; and that the destruction of the wheat after its delivery, by the burnin" of the mill, was the loss of the miller, and was no defence to an action for the price. Baker u. Woodruff, 2 Barb. 520. A contract signed by a party upon receiving the possession of personal property, and containing his promise to pay for the same is not a bailment. Bryant v. Crosby, 36 Maine, 562. And for the distinction between a contract of sale and a bailment, see Mallory v. Willis, 4 Comst. 76. CHAP. I.] BAILMENTS. 5 and although it has been thought by some, whose opinions are en- titled to consideration and weiglit, that in some of tlie species of bailment contract does not subsist ; ^ yet that term is used, when speaking of bailment generally by courts and judges, without reference to the. distinction of its several species.^ § 5. It is obvious, from the foregoing definitions, that the law of bailments involves what Sir William Jones calls " the great question of responsibility for neglect" a question upon which Blackstone speaks so loosely and indeterminately that no fixed ideas can be collected from his words ; though his commentaries are the most correct and beautiful outline that ever was exhibited of any human science.^ Before considering, therefore, the differ- ent kinds of bailments, this great question, which is of the utmost importance in illustrating the. law of carriers, demands attention. From the obligation contained in the definition of bailment, to re- store the thing bailed at a certain time, it follows that the bailee (a carrier, for instance) must keep it, and be responsible to the bailor (the person, for instance, by whom a carrier is employed*) if it be lost or damaged; but as the "bounds of justice would, in most cases, be transgressed, if he were made liable for the loss of it without his fault, he can only be obliged to keep it with a degree oftcare proportioned to the nature of the bailment ; and the investi- gation of this degree, in every particular contract, is the problem which involves the principal difficulty.^ § 6. As to the various degrees of care or diligence which are recognized in the law, Sir William Jones, with his charactei'istic acuteness, says, " that there are infinite shades, from the slightest momentary thought or transient glance of attention to tlie most vigilant anxiety and solicitude. But extremes," he says, " in this case, as in most others, are inapplicable to practice ; the first ex- treme would seldom enable the bailee to perform the condition, and the second ought not in justice to be demanded ; since it * See an able article by the late Mr. J. B. Wallace, of tbe Philadelphia bar, in the American Jurist for 1837, vol. xiv. pp. 253 to 285. ^ See post^ note to § 19. And see, in particular, post, § 23. Storer v. Gowen, 18 Maine, 174; Marshall v. York R. 11 C. B. 655, 7 Eng. L. & Eq. 519 ; Smith V. Nashua E. 7 Fost. 86 ; Covill v. Hill, 4 Denio, 323. Whether a bailment or a sale, see Mallory u. Willis, 4 Comst. 76, and on p. 85, by Bronson, J. ; Litchfield V. White, 3 Sandf. 545. For a distinction between sale and bailment, see Law Kep. for June, 1852. 2 Jones on Bailm. 3. * Ibid. 5. = Ibid. 6. 6 LAW OF CAKEIEES. [CHAP. 1- would be harsh and absurd to exact the same anxious care, which the greatest miser takes of his treasure, from every man who bor- rows a book or a seal. The degrees of care to be sought, then, must lie somewhere between these extremes ; and, by observing the different manners and characters of men, a certain standard may be found, which will greatly facilitate an inquiry ; for, al- though some persons are excessively careless, and others extreme- ly vigilant, and some through life, and others only at particular times, yet it is perceptible that the generality of rational persons use nearly the same degree of diligence in the conduct of their own affairs. This care, therefore, which every person of common prvdence, and capable of governing a family, takes of his own con- cerns, is a proper measure of that which would uniformly be re- quired in performing every contract, if there were not strong rea- sons for exacting in some of them a greater, and permitting in others a less, degree of attention. " Here, then," says Sir Wil- liam Jones, " we may fix a constant determinate point, on each side of which there is a series consisting of variable terms, tending indefinitely towards the above-mentioned extremes, in proportion as the case admits of indulgence or demands rigor : if the con- struction hQ favorable, a degree of care less than the standard will be sufficient ; if rigorous, a degree more will be required ; and in the first case, the measure will be that care which every man of common sense, though absent and inattentive, applies to his own affairs ; in the second, the measure will be that attention which a man remarkably exact and thoughtful gives to the security of his personal property." ^ § 7. Story thinks that, although it may not be possible to lay down any very exact rule, applicable to all times and all circum- stances, yet that may be said to be common or ordinary diligence, in the sense of the law, which men of common prudence generally exercise about their own affairs, in the age and country in which they live ; and this he affirms to be more a matter of fact than of law ; 2 and the later decisions hold, that it must often be left to the jury upon the nature of the subject-matter, and the particular circumstances of each case.* The variable character of the stand- * Jones on Bailm. 5, 6. ' Story on Bailm. § 11 ; and see Vaughn v. Menlove, 3 Bing. N. C. 468. ' Per Shaw, C. J., in Whitney v. Lee, 8 Met. 91 ; and see Cairns v. Mills, 8 M. & W. 288. CHAP, l] bailments. 7 ard of diligence is very happily illustrated by Story. lu one coun- try, or in one age, says he, acts may be deemed negligent which, at another time, or in another country, may justly be deemed an exercise of ordinary diligence ; and it is important, says he, to attend to this consideration, not merely to deduce the implied ob- ligations of a party in a given case, but also to possess ourselves of the true measure by which to fix the application of the general rule. Thus, in times of primitive or pastoral simplicity, when it was customary to leave flocks to roam at large by night, it would not be want of ordinary diligence to allow a neighbor's flock, which is deposited with us,' to roam in the same manner. But, if the general custom were, at night, to pen them in a fold, it would 'doubtless be a want of such diligence not to do the same with them. In many parts of America, especially in the interior, where there are, comparatively speaking, few temptations to theft, it is quite usual to leave barns, in which horses and other cattle are kept, without being locked by night. But in cities, where the danger is much greater, and the temptations more pressing, it would be deemed a great want of caution to do the same. If a man were to leave his friend's horse in his field, or in his barn, all night, in many country towns, and the horse were stolen, it would not be imagined that any responsibility was incurred. But if, in a large city, the same want of precaution were shown, it would be deemed, in many cases, gross neglect. If robbers were known to frequent a particular district of country, much more precaution would be required than in districts where robberies were of very rare occurrence. What, then, is usually done in a country, in respect to things of a like nature, whether it be more or less in point of diligence than what is exacted in another country, is in fact the general measure of diligence.^ § 8. The customs of trade and the course of business also have an important influence. If, in the course of a particular trade, particular goods, as for instance coals, are usually left on a wharf without any guard or protection during the night, and they are stolen, the wharfinger, or other person having the custody, might not be responsible for the loss, although, for a like loss of other goods not falling under a like predicament, he might be responsi- ble. If a chaise were left during the night under an open shed, and were stolen, the bailee might not be liable for the loss,, if such • Story on Bailm. §§11-15. 8 LAW OF CARRIERS. [CHAP. I- was the usual practice of the place ; and yet he would be, if other precautions were usually taken. In short, diligence is usually proportioned to the degree of danger of loss^ and that danger is, in different states of society, compounded of rery different ele- ments.i What constitutes ordinary diligence may also be materi- ally affected by the nature, bulk, and value of the articles. A man would not be expected to take the same care of a bag of oats as of a bag of gold ; of a bale of cotton as of a box of jewelry ; of a load of wood as of a package of paintings ; of a block of marble as of a sculptured statue. The value, especially, is an ingredient to be . taken into consideration upon every question of negligence ; for that may be gross negligence in the case of a parcel of extraordi- nary value, which, in the case of a common parcel, would not be' so.^ § 9. The fixed mode or standard of diligence Sir William Jones calls ordinary. The degrees on each side of this standard need not, he says, be distinguished by any precise denomination ; the first may be called less, and the second more than ordinary diligence. Then he proceeds to say, that just in the same man- ner there are infinite shades of default or neglect, from the slightest inattention, or momentary absence of mind, to the most reprehensible supineness and stupidity; and these are the omis- sions of the before-mentioned degrees of diligence,.and are exactly correspondent with them.^ § 10. The three degrees of negligence are thus distinguished, both in the Civil and the Common Law, by name : 1. Gross neglect, lata culpa, as the Koman lawyers call it, is in practice considered as equivalent to fraud; and consists, according to Sir William Jones, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property ; this fault the best interpreters of the Civil Law hold to be clearly a violation of good faiths 2. Ordinary neglect, levis culpa, is the ' See Gordon v. Hutchinson, 1 Watts & S. 285. " Story on Bailm. §§13-15. " Jones on Bailm. 7, 8 ; Story on Bailm. § 1 7. * Jones on Bailm. 21 ; Story on Bailm. § 18. Story remarks that, in various passages of the Essay of Sir William Jones, it seems to be assumed that, in the Common Law as in the Civil Law, gross negligence and fraud are equivalent. Thus, he observes, ordinary negligence is spoken of as " a mean between fraud and accident" (p. 8); gross negligence as " inconsistent with good faith" (pp. 10, 46, 119) ; and a bailee without reward, as being " answerable only for fraud, CHAP. I.] BAILMENTS. 9 want of that diligence which the generality of mankind use in their own concerns, that is of ordinary care? 3. Slight neglect, levissama culpa, is the omission of that care which very attentive and vigilant persons take of their own goods, or, in other words, of very exact diligence.^ § 11. Such, then, are the nature and various degrees of negli- gence and of diligence, and the next question is, in what manner the law applies them. The answer is as short and simple as it is rational. When the bailment is for the sole benefit of the bailor, or for gross negligence, whicli is considered evidence of it" (p. 46). But this doctrine is not warranted by the Common-Law authorities. One case opposed to it is put by Sir W. Jones himself. If, he says (p. 57), a depositor commits a gross neglect in regard to his own goods, as well as those which are bailed, by ■which both are lost or damaged, he cannot be said to have violated good faith, and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person. So, where a cartoon was left in the hands of an auctioneer, without any particular agreement to take care of it, or redeliver it safe, and without any agreement for a reward, and it appeared that the painting was upon paper pasted on canvas, and that the bailee kept it in a room next to a stable in which there was a wall, which had made it damp and peel, — it was held gross neglect, and the bailee was held responsible, although there was no imputation of fraud. These cases show that gross negligence is not equivalent to fraud according to the Common-Law authorities. On the contrary, gross negligence is, or at least may be, entirely consistent with good faith and honesty of intention ; and to confound it with fraud would be most mischievous, for then, unless a jury should believe the party guilty of fraud, no laches would come up to the legal notion of gross negligence, so as to entitle the sufferer by the loss to recover. A man may leave a casket of jewels or a purse of gold upon the table of a public room at an inn, or may leave a package of bank-bills in a great- coat in the common entry of an inn, from pure thoughtlessness ; and a jury might be well satisfied that it was gross negligence. But if fraud were a necessary in- gredient, the very statement of the case would negative a right of recovery. Be- sides, if gross negligence were equivalent to fraud, there could be no defence set up by the bailee, founded either on his own conduct in respect to his own goods, or on a special contract not to be liable for gross negligence. But there is no principle in our law that would prevent a depositary from contracting not to be liable for any degree of mere negligence. Story on Bailm, § 20, et. seq. With respect to common carriers, however, fraud may be presumed, as will be shown, post. Gross negligence certainly approximates to dolus mains, and is tantamount, in the mischief it produces, to a breach of good faith. It bears so near a resem- blance to fraud as to be equivalent to it in its effect upon contracts, though by the Common Law it may not be fraud by inference, but a matter of fact for the jury. 2 Kent, Com. 559 ; Foster v. Essex Bank, 17 Mass. 479 ; Wilson v. York K. 11 Gill & J. 58. And see especially post, § 22, et seq. 1 Jones on Bailm. 22 ; Story on Bailm. § 18. " Ibid. 10 LAW OF CONTRACTS. [CHAP. I- the law requires only slight diligence on the part of the bailee, and he is consequently responsible for nothing less than gross neglect. When the bailment is for the sole benefit of the bailee, an extraordinary degree of care is demanded, and the bailee is therefore responsible for slight neglect. When the bailment is re- ciprocally beneficial to both parties (as in the case of the carriage of goods for hire), such care is exacted of the bailee as every pru- dent man commonly takes of his own goods ; or, in other words, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect. Such are the rules recognized by the Common Law ; a like division of the degrees of responsibility is to be found in the Civil Law ; and the same rules are found in the French and Scotch law, and may be deemed, in- deed, the general result of the law of Continental Europe.'^ But it is often difficult to mark the lines of distinction between the difierent degrees of negligence, so as to show precisely where the one ends" and the other begins ; and, therefore, by the Common Law, it is left to the jury, upon the nature of the subject-matter and the particular circumstances of each case, to say whether the particular case is within the one or the other.^ Every person who is a bailee, whether for hire or not, is bound to take proper and prudent care of that which is committed to him ; and the Courts, in modern times, have acknowledged the difficulty in de- fining the difference between one of the sorts of the negligence designated by the epithets of the Civil Law and another ; ^ and there is clearly a want of precision in the use of the term negliA gence, which, per se, is insufficient to express the distinction be- tween negligence in law and negligence in fact.* From these principles it, however, follows that bailees in general are not re- , sponsible for losses resulting from unavoidable accident, or from irresistible force ; and yet (as will be shown in treating of the particular liability of carriers) bailees may become so respon- sible, both by special contract and by the special policy of the law. ' Jones on Bailm. 22 - 24 ; Story on Bailm. §§ 23, 24 ; Coggs v. Bernard, 2 Ld. Raym. 909; Pothier, Traitd de Depot, n. 23; Pothier, Oblig. P. 1, ch. 2, art. 1, § 1, n. 141 ; 1 Bell, Com. 453 (5th ed.) ; Ersk. Inst. 448; Heinec. Elem. Jur. Inst. Lib. 3, tit. 15, § 12. " See Opinion of Shaw, C. J., in Whitney v. Lee, 8 Met. 91. And see ante, §§ 7, 8. » See post, §§ 22, 23, and §§ 48 - 52. * Ibid. CHAP. I.] BAILMENTS. 11 § 12. It may here be proper to notice the distinction between negligence and misfeasance. It seems to be tliis, — that the for- mer takes place in the course of performing the contract, the lat- ter in an act done in direct contravention of it, by which its performance is prevented. An instance of the , latter is, where the defendants received a parcel, and. contracted to send it by the mail, and it was sent in a different manner (by another coach), and was lost. The Court ■ held, that, if the defendants had for- warded the parcel by the mail, in pursuance of the contract, they would not have been liable for the loss, but, as they had acted in direct contravention of it, it was a misfeasance. ^ If a gratuitous bailee enters upon the performance of the safe-keeping of the thing intrusted to him, and in the execution of it does it amiss, through the want of due care, by which damage ensues tO' the bailor, it is a misfeasance, ,for which an action will lie ; but if a person engages that he will gratuitously take charge of a thing, and then wholly omits to enter upon the execution of his prom- ise, it is a nonfeasance, for which, at Common Law, no action will lie.2 § 13. As before mentioned,^ Lord Holt, in Coggs v. Bernard,* has traped with much attention the different species of bailment ; which, it will at once be perceived, are derived from the Civil Law, to which Bracton had recourse in expounding the law of bailment ; ^ and by the elaborate opinion of that learned Judge, in the case just referred to, and by the Essay of Sir William Jones, the different sorts of bailment in the Civil Law have be- ' Sleat V. Fagg, 5 B. & Aid. 342. See, also, Ellis v. Turner, 8 T. R. 531 ; Gar- nett )). Willan, 5 B. & Aid. 63. The performance, in an improper manner, place, or time, which it is not the party's right or even duty to do, is a misfeasance ; as, for example, the captain of a military company drilling his men and ordering them to fire in public squares, and business resorts of towns and villages. Chil- dress V. Yourie, 1 Meigs, 564; Cole v. Fisher, 11 Mass. 137. And see Glover v. North Staffordshire R. 16 Q. B. 912, 5 Eng. L. & Eq. 335. And see post, §269. " Thome v. Deas, 4 Johns. 85. And see post, note to § 19 ; and for a more full explanation of the distinction between negligence and misfeasance, see post, §§269-274. ' See ante, § 2. * Coggs V. Bernard, 2 Ld. Raym. 909. ' ' See Bracton and the Civil Law referred to by Lord Holt in Coggs v. Ber- nard, «6. supra. See, also, Wood, Civil Law, 235 ; 1 Domat, B. 1, tit. 4, § 1 ; 1 Bell, Com. 452 (5th ed.) ; 2 Kent, Com. 585 ; Story on Bailm. § 8. 12 LAW OF CARRIEES. JCHAP. I- come transferred to the Common Law.^ The division of bail- ments, by the above-mentioned Judge, is into six sorts ; but this division has since been considered somewhat inaccurate, because, in fact, his fifth division is no more than a branch of his third ; and he might, with equal reason, have added a seventh, since the fifth is capable of another subdivision.^ The Common Law, as now understood and applied, recognizes but five general species of bailment, which. may be thus enumerated and defined, with all the Latin names, one or two of which Lord Holt has omitted : 1. Depositum, or Deposit, which is a naked bailment, without re- ward, of goods to be kept by the bailor, and to be returned when the bailor shall require it. The appellation and the definition are both derived from the Civil Law. Depositum est, quod custodi- endum alicui datum est (Dig. Lib. 16, tit. 4, 1. 1). 2. Mandatum, or Mandate, which is defined to be a bailment of goods without reward, to have some act performed about them, or to be carried^ from place to place. This appellation is also derived from the Civil Law. Mandantis tantum gratid intervenit mandatum, is the language of the Institutes ; ^ Mandatum, nisi gratuitum, nullum est, is that of the Pandects.* 3. Commodatum, or loan for use, when goods are bailed without pay, to be used for a certain time by the bailee.^ It differs from what is called in the Civil Law a Mutuum in this, — that in a Commodatum the goods are lent to be specifically returned ; in a Mutuum the goods are to be consumed, and are to be repaid, in property of the same kind. Thus, corn or wine, delivered to some one to be consumed, and to be repaid in kind, is a case of Mutuum ; but if a horse be gratuitously lent for a journey, it is a case of Commodatum. 4. Pignori acceptum, when a thing is bailed by a debtor to his creditor, in pledge or pawn, as security for some debt or engagement. 5. Locatum, or hiring, which is always /or a reward: and this bailment is either, ' Story on Bailm. § 8 ; Jones on Bailm. 36, 117. Lord Holt presided as lately as the second year of Queen Anne ; and a point which the first elements of Eo- man Law have so fully decided, that no* Court of judicature on the continent would suffer it to be debated, was thought in England to deserve, what it certainly received, very great consideration. Jones on Bailm. 58, referring to the opinion of Lord Holt in Coggs v. Bernard, ub. sup. ' Jones on Bailm. 36. ' Inst. Lib. 3, tit. 27, § 1. * Dig. Lib. 1 7, tit. 1 ; Story on Bailm. notes 4 and 5 to § 5. ' The same definition is given in the Civil Law. Story on Bailm. § 6. CHAP. I.] ^ BAILMENTS. 13 first, Locatio rei, by which the hirer gains the temporary use of the thing ; or, secondly, Locatio operis faciendi,- when work and labor, or care and pains, are to be performed or bestowed on the thing delivered ; or, thirdly, Locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place for hire, either to a public carrier, or to a private person. § 14. The above division of bailments, and the definitions of each sort are borrowed from the Essay of Sir William Jones on Bailments, and from the Commentaries on the same subject of the late Mr. Justice Story.i The latter sort, Locatum or hiring; ' See Jones on Bailm. 36, and Story on Bailm. §§ 4-7. Lord Chief Justice Holt's arrangement of bailments into six classes is as follows. 1. Depositum : A bare, naked bailment of goods delivered by one man to another to keep for the use of the bailor. 2. Conimodatum : When goods or chattels that are useful are lent to a friend gratis, to be used by him. 3. Locatio rei : Where goods are lent to the bailee to be used by him for hire. 4. Vadium, or Pawn. 5. Locatio operis faciendi : Where goods are delivered to be carried, or something is to be done about them, for a reward to be paid to the bailee. 6. Mandatum : A de- livery of goods to somebody who is to carry them or do something about them gratis. Sir William Jones objects to this arrangement, because the fifth class (as he says) is no more than a branch of the third, and because a seventh might have been added, since the fifth (and he might have said the sixth also) is capable of another subdivision. But Mr. Smith, in his note to Coggs v. Bernard, has refuted this opinion : " For there exists," he says, " between them this essential differ- ence, viz. that, in cases falling under the third class, or locatio rei, the reward is paid by the bailee to the bailor ; whereas, in cases falling under the fifth class, or locatio operis faciendi, the reward is always paid by the bailor to the bailee. It is true, that in Latin both classes are described by the word Zocad'o, which probably gave rise to Sir William Jones's opinion that both ought to be included under the same head. But then in the third class, locatio rei, the word locatio is used to describe a mode of bailment, viz. by the hiring of the thing bailed ; whereas, in tha fifth class, locatio operis faciendi, the same word locatio is used, not to describe any mode of bailment, but to signify the hiring of the man's labor who is to work upon the thing bailed ; for as to the thing bailed, that is not hired at all, as it is in cases falling within the third class. If, indeed, Lord Holt had been enumerating the diSerent sorts of hirings, not of bailments, he would, no doubt, like the civil- ians, have classified both locatio rei 3.nA4ocatio operis under the word hiring; since in one case goods are hired, and in the other labor. But he was making out a classification, not of hirings, but of bailments; and since in cases of locatio rei there is a hiring of the thing bailed, and in cases of locatio operis no hiring of the thing bailed, it was impossible to place, with any degree of propriety, two sorts of bailments under the same class, one of which is, and the other of which is not, a bailment by way of hiring. As to the objection that Lord Holt's fifth class of bailments is capable of another subdivision, there is no doubt but that it may 14 LAW OF CARRIERS. [CHAP. I. which is subdivided by the former writer, as above given, into three sorts, the latter writer, following the Civil Law, has subdi- vided into four sorts, thus: 1. The hiring of a thing for use (JLo- catio rei). 2. The hiring of work and labor (locatio operis fmi- endi). 3. The hiring of care and services to be performed or bestowed on the thing delivered (locatio custodiw). 4. The hir- ing of the carriage of goods (locatio operis mercium vehendarum) from one place to another. The three last, says the learned American commentator, are but subdivisions of the general head of hire of labor and services.^ § 15. But the most general and simple division of bailments, and one which includes all the above-mentioned sorts, is into three kinds. First, those in which the trust is exclusively for the benefit of the bailor. Secondly, those in which the trust is exclu- sively for the benefit of the bailee. Thirdly, those in which the trust is for tlie benefit of both parties. The first embraces depos- its and mandates; the secondi, gratuitous loans for use ; the third, pledges or pawns, and hiring and letting to hire.^ The first of these three general divisions includes the carriage of goods without hire ; and the last the carriage of goods /or hire, as was stated in the commencement of the present chapter.* The car- riage of goods without hire will be the subject of the following chapter. § 16. In the conclusion of the present chapter, it may be stated, that the following chapters will render obvious the truth of the general remark, equally applicable in our country, made by Sir William Jones, in the concluding portion of his Essay on the Law of Bailments, viz. : " All the preceding rules and propositions may be diversified to infinity by the circumstances of every par- be split, not only, as Sir William Jones suggests, into locatio operis faciendi (where work is to be done upon the goods) and locatio operis mercium vehendarum (where they are to be carried), but into as many different subdivisions as there are dif- ferent modes of employing labor upon goods ; and, in point of fact, the civilians, in their division of fairings, enumerated another class, viz., locatio custodUe, or the hiring of care to be bestowed in guarding 'a thing bailed, which is omitted by Sir William Jones. For these reasons it is submitted that Lord Holt's classification is the correct one." 1 Smith's Leading Cases, 98. And see English Monthly Law Mag. for April, 1839. ' Story on Bailm. § 8. " Story on Bailm. § 3; and see English Monthly Law Mag. for April, 1839, p. 216. ' See anie, § 1. CHAP. II.] CAKRIEES WITHOUT HIKE. 15 ticular case ; on which circumstances it is, on the Continent, the province of a Judge appointed by the sovereign, and, in England, oi&jury freely chosen by the parties, finally to decide."^ CHAPTER II. OF CARRIERS WITHOUT HIRE. § 17. The law, then, imposes upon a carrier without hire, or the person who undertakes to carry goods for another gratuitously (the mandatary ^), the obligation only of slight diligence, and ren- ders him liable only for gross negligence.^ It is of the essence of the contract of mandate, that it be gratuitous, for, if any compen- sation is to be paid, it becomes then the contract for Mre. Mari- datum, nisi gratuitum, nullum esse ; and, in this particular, it matters not whether the compensation is express or implied, nor whether certain or uncertain in amount.* ' Jones on Bailm. 122 ; and see ante, §§ 7, 8, 11. " There is no time," it has with truth been said, " when the law is stationary and stable ; but it is kept in perpetual movement by the varying condition of the nation, and, therefore, the only way in which the spirit of the law can be seized is to study it historically, to begin with tht custom in its cradle, and to follow it through all its changes down to the existing epoch. To borrow an illustration from another science, law not being a fixed quantity, but variable according to a certain rule, it becomes necessary to ascertain what, in mathematical language, may be called its fluxions, the formula of its variation. It is history only that can furnish this calculus, which is the basis of all true and just science in law. Without this knowledge, a jurist may repeat the words, but can never penetrate the living spirit of the law." See article iu 5th vol. of American Jurist, p. 13, entitled, " Written and Unwrit- ten Systems of Laws." ^ See ante, § 1, 13. And see, respecting the general subject of Mandates, chap. iii. of Story on Bailments. ' See an^e, §§ 10, 11. * Story on Bailm. § 153, and the authority of the Dig. and of Pothier, Pand. there cited. If there is a mere lionorary payment, not as a compensation, but as a mark of respect and favor, this, by the Civil-Law authorities, is still a mandate. In England, counsel are understood not to be at liberty to make any pecuniary charge for their services, for advice, and the compensation given is deemed a gra- tuity ; and their employment, therefore, in the Civil Law, would be called a man- date. Story, ub. sup. In a case where the defendant received hops from the plaintifiC for the purpose of being carried for hire, and kept them for the plaintiff 16 . LAW OF CAEEIEES. [CHAP. H. § 18. The great leading case in support of the above proposition respecting the responsibility of a carrier without hire is the case of Coggs V. Bernard.! In this case the defendant undertook to remove several casks of brandy from one cellar to another, and there lay them down safely, but managed so negligently that one of the casks was staved. After the general issue joined, and a verdict for the plaintiff, a motion was made in arrest of judgment on the irrelevancy of the declaration, in which it was neither al- leged that the defendant was to have any recompense for his pains, nor that he was a common porter. But the Court were unanimously of opinion that the action lay, and the elaborate judgment of Lord Chief Justice Holt has rendered the case one of the most celebrated ever decided in Westminster Hall. § 19. By the argument of Lord Holt in the above case, if the agreement had been executory, as if the defendant had assumed to carry the goods in question, and had failed to do so, no action could have been sustained. It would have been like the case where a man promised another to build him a house by such a day and failed in the performance of the promise, in which case it was adjudged (11 Hen. IV. 33), that an action would not lie. But in the case in question, the defendant actually entered upon the undertaking according to his promise, and therefore was liable to an action for the deceit put upon the plaintiff who trusted him ; for, although he was not bound to enter upon the tyust, yet if he . do enter upon it, he must take care not to miscarry, at least, by any mismanagement of his own. But should a person have run upon the defendant in the street, and thrown down the cask of brandy, or had privately pierced it, it would be otherwise, because the defendant had no reward. In short, although a party is to receive no benefit or reward, if he assumes a trust he is under obligation to perform it.^ in a warehouse for thirteen months, and for that time he had warehouses which before had belonged to another, but had not made any charge to the plaintiff for warehousing; it was held, that he was not a gratuitous bailee. White v. Humphery, 11 Q. B. 43. ' Coggs V. Bernard, 2 Ld. Raym. 909. ^ In an article in the American Jurist for January, 1887 (vol. xvi. p. 253 to 285), written by the late Mr. J. B. Wallace, of the Philadelphia bar, it is ably contended, that, in mandate and in deposit, there is no contract at all, expressed or implied ; his argument being, that every contract presupposes a sufficient consid- eration in point of law to sustain it, and, that, in the classes of bailment just men- CHAP. II.] CABRIERS WITHOUT HIKE. 17 § 20. The point which the decision in Coggs v. Bernard directly involves, viz. that if a man undertake to carry goods safely, he tioned, there is no sufficient consideration moving to the bailee, as the bailee acts gratuitously. " It is seen," says he, " that, in pursuance of a most useful practical principle, no action lies against the mandatary for nonfeasance (there being in legal contemplation no contract to do) ; and it is further seen that, if the man- datary does undertake or begin the execution of his trust, and does 'it so negli- gently as to injure the thing bailed, an action does lie against him fof this mis- feasance. But this right of action is not by virtue of his contract, for no contract exists after he begins to do, more than before. It rests on the broad principles of general justice ; it is founded on the tort ; it arises not ex contractu, nor even quasi ex contractu, but ex,delicto. It ■would lie equally, if the injury were done to the thing bailed, while in the hands of the mandatary, even before he begins to exe- cute the trust ; though generally this cannot practically be, as the injury usually .occurs in the execution." This simple explanation, says Mr. W., removes all diffi- culty, and shows that the form of action is not assumpsit, but case ; and he is of opinion that, in this view of the matter, " there is no inconsistency, that no prin- ciple is violated, and that everything is congruous." Mr. Justice Story, in reply to the acute reasoning of Mr. W., says: "It seems to me very clear, both upon principle and authority, that, in every case of deposit and of mandate, there is such a contract, founded on a sufficient consideration, and capable of being so enforced (that is, at law), whenever the bailment has been executed by a deliv- ery of the thing to the bailee. In the case of a deposit, no one can doubt that there is an engagement or promise to redeliver the thing to the bailor. The lat- ter parts with his possession of it upon the faith of the due fulfilment of that en- gagement or promise ; and it cannot make any difference, in relation to the legal validity of that engagement or promise, whether the bailee has expressly prom- ised to redeliver ,it to the bailor, or whether it is inferred from implication from the acts and intentions of the parties. In each case the consideration is precisely the same. What is the consideration ? It is, on the part of the bailor, yielding up his present possession, custody, and care of the thing to the bailee, upon the faith of his engagement or promise to redeliver it. It is true that the bailee may de- rive no benefit from the deposit. But that is not the only source of legal consid- erations. A detriment or parting with a present right, or delaying the present use of a right, on the part of the promisee, is a sufficient consideration to support a contract by the promisor, although the promisor derives no benefit whatever from it.' ' See note to p. 4, § 2, of 4th ed. of Story on Bailm. The authorities cited by the learned author, besides the opinion of Lord Holt in Coggs v. Bernard, in support of the proposition that, where a gratuitous undertaking to deliver a thing at the request of the owner is entered upon, it becomes a valid and obligatory contract upon the bailee to perform the duty of redelivery, expressly or impliedly result- ing from his engagement, are Comyns's Dig. Act on the Case, Assumpsit, B. • Williamson v. Clements, 1 Taunt. 522 ; Lengridge i>. Dorville, 5 B. & Aid. 117 ■ Wheatley v. Low, Cro. Jac. 668 ; Palmer, 281. This last case was a mandate of money, not goods, and it was finally established that there was a sufficient con- sideration to support the action ; and the judgment was affirmed in error. There are also referred to the more modern cases of Whitehead v. Greetham, 1 M'Clel. 2 18 LAW OF CARRIERS. [CHAP. n. is responsible for damage sustained by them in the carriage, through his neglect, though he was not a common carrier, and was to have nothing for the carriage, is now clear law, and forms a part of a general proposition in the law of principal and agent, which may be stated. It has been laid down in the following words, viz. : The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. This is a proposition which includes cases stronger than that of Coggs v. Bernard, for there the defendant had undertaken to lay the goods down safely, and thus introduced & Y. 205, 2 Bing. 264 ; Doorman v. Jenkins, 2 A. & E. 256 ; Shillibeer ti. Glyn, 2 M. & W. 143. Sir James MansBeld, in Mills v. Graham, 4 Bos. & P. 140, 146, says : " A bailment of goods to be redelivered, imports an agreement to redeliver. All special bailments import a contract to redeliver, when the purpose for which the goods were deposited is answered. See also Smedes v. Bank of Utica, 20 Johns. 377, 3 Cow. 662 ; Bank of Utica v. McKinster, 11 Wend. 473 ; Todd v. Figley, 7 Watts, 542. The distinction between engaging to do an act gratuit- ously and then omitting to do it, and an unfaithful performanse of the engage- ment ?ifter its execution is entered upon, or, in other words, the difference between nonfeasance and misfeasance in gratuitous bailees, is as very learnedly discussed at the bar, and by Ch. J. Kent in Thome v. Deas, 4 Johns. 84 to 102. Sir Wil- liam Jones considers (Essay on Bailm.) that an action will bar the non-perform- ance of a promise to become a mandatary, though the promise be merely gratu- itous ; but all the leading cases show that, by the Common Law, a person who un- dertakes to do an act for another, without reward, is not answerable for omitting to do the act ; and that he is only responsible when he attempts to do it and does it amiss. In other words, he is responsible for a misfeasance, but not for nonfeasance, even though special damages are averred. " Those," says Kent, C. J., in Thorne V. Deas, vb. sup., " who are conversant with the doctrine of mandatum in the Civil Law, and have perceived the equity which supports it, and the good faith which it enforces, may, perhaps, feel a portion of regret that Sir William Jones was not successful in his attempt to ingraft this doctrine, in all its extent, into the English law." The Supreme Court of North Carolina say, that a consideration of some sort is absolutely necessary to the validity of every contract, but that it need not be in money, nor money's worth. They expressly recognize as law the doctrine laid down in the case of Coggs v. Bernard ; and they consider it as settled law, that the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. Here the defend- ant undertook a duty for the plaintiff, — that of collecting or returning certain notes. If nothing more had taken place between the parties, the agreement would have been a nudvm pactum, binding upon neither. But it did not ; the plsuntiff de- livered to the defendant, and he took into his possession, the notes, for the pur- pose, and under the obligation, to collect or return thejn. By so doing, he entered upon his trust, and the law imposed the duty of performing it. Robinson v. Threadgill, 13 Ired. 89. CHAP. II.] CAEEIEES WITHOUT HIRE. 19 a special term into his contract. Fi-om Lord Holt's judgment in this case it will be seen that, notwithstanding what was said by Lord Coke in Southcote's case, there is. a difference between the effect of a gratuitous undertaking to keep or carry goods, and a gratuitous undertaking to keep or carry them safely. But under the rule just laid down, a gratuitous and voluntary agent, wlio has given no special undertaking, thougli the degree of his respon- sibility is greatly inferior to that of a hired agent, is yet bound not to be guilty of gross negligence.^ It is, indeed, clear, from the decisions which will be offered, that a gratuitous bailee (as a car- rier without hire) is chargeable for gross negligence, if not liable for other kinds of negligence. § 21. The rule as to responsibility for gross negligence in a de- positary, it is evident from what has been offered, will apply to a mandatary, or a carrier without hire. The liability of both seems to be precisely the same, and both are bound to slight diligence, and to slight diligence only, and are liable for nothing short of gross negligence, the reason in each being the same, viz. that neither ' See note to Coggs v. Bernard, by Smith, 1 Smith's Lead. Cas. 96. The de- cision in the case of Southcote, referred to in the text, has not been questioned, but the dictum of Lord Coke (see the case 4 Kep. 84; Cro. Eliz. 815), " that to keep and to keep safely are one and the same thing," Sir William Jones considers to be completely overthrown by Lord Holt in Coggs v. Bernard. All the later authorities explode the doctrine that an undertaking to keep, and an undertaking to keep safely, amount to the same thing. Story on Bailm. § 72. Southcote's case, according to Lord Coke's own report, was as follows : He brought detinue against the defendant, Bennet, for certain goods, and declared that he delivered them to the defendant to keep safe ; the defendant confessed the delivery, and pleaded in bar that, after the delivery, one J. S. stole them feloniously out of his possession ; the plaintiff replied, that the said J. S. was the defendant's servant, retained in his service, and demanded judgment ; and, upon demurrer in law, judgment was given for the plaintiff. And the reason or the cause of the judg- ment was, because the plaintiff delivered the goods to be safely kept, and the defendant had taken it (the risk) upon him by the acceptance upon such deliv- ery, and, therefore, he ought to keep them at his peril ; although, in such a case, he should have nothing for his safe-keeping. This is the substance of the case (see Story on Bailm. § 69) ; and Lord Coke, in the sequel, proceeds to expound hii own views of the general doctrine with that superabundance of learning for which he was so remarkable. Sir William Jones, in commenting upon this case, (disclaiming any intention to speak in derogation of the great commentator of Littleton,) says, " It must be allowed, that his profuse learning often ran wild, and that he has injured many a good cause by the vanity of thinking to improve them." Jones on Bailm. 42. See Kirkland v. Montgomery, 1 Swan, 452 ; Fay V. Steamer New World, 1 Calif. 348 ; and Litchfield v. White, 3 Sandf. 545. 20 LAW OF CARRIERS. ' [CHAP. II. is to receive any reward for his services.^ In Doorman v. Jen- kins,2 which was the case of a depositary, Mr. J. Taunton says : " The counsel properly admitted that as this bailment was /or the benefit of the bailor, and no reihuneration was given to the bailee, the action coiild not be maintainable except in the case of gross negligence." In the case of Foster v. Essex Bank,^ the Court say, that in case of a deposit to be kept without reward, " the bailee will be answerable only for gross negligence, which is con- sidered as equivalent to a breach of faith." Where a promissory note was delivered to a bailee, on the voluntary undertaking, without reward, to secure and take care of it, it was held, that he was not bound to take any active measures to obtain security, but was simply bound to keep the note carefully and securely, and re- ceive the money; and that the owner could not recover of him for the loss thereof, without proof of gross negligence or fraud.* (o) Accordingly, whenever the extent of a mandatary's liability is dis- cussed, it is common to find cases respecting that of depositaries cited and relied on, and so vice versa. § 22. Gross negligence has already been defined,^ and it ap- pears from the definition which has been given, that it means nothing more than, in the words of Mr. J. Taunton, " a great and aggravated degree of negligence as distinguished from negligence of a lower degree." ^ Therefore, as the learned Judge in the case referred to says, there may be cases where the question of gross negligence is matter of law more than of fact, and others where it is matter of fact more than of law. All the cases afford illustra- ' " The contract of mandate is so nearly allied to that of deposit, that it may properly be deemed to belong to the same class.'' Story on Bailment, § 140; see also Ibid. § 150. That all unpaid agents are bound not to be guilty of gross neg- ligence, see note by Mr. Smith to the case of Coggs v. Bernard, 1 Smith's Lead. Cas. p. 219 of the Am. ed. 1847, and the note of Mr. Wallace, the American Ed- itor, Ibid. p. 241 ; and see Shiells v. Blaokburne, 1 H. Bl. 158; McDonough v. Robinson, 26 Vt. 316 ; Langley v. Brown, 1 Moore & P. 583 ; Knowles v. Atlan- tic E. 38 Maine, 55. 2 Doorman v. Jenkins, 2 A. & E. 256. ' Foster v. Essex Bank, 17 Mass. 479. On a bailment to keep, without an in- terest, the bailee is liable only for gross negligence. Chase v. Maberry, 3 Harrinw. Del. 266. • Whitney v. Lee, 8 Met. 91. » See ante, § 10. ' Doorman v. Jenkins, 2 A. & E. 261. (a) See Chouteau v. Steamboat St. Anthony, 20 Misso. 519. CHAP. II.] CARRIERS WITHOUT HIRE. 21 tion of the difficulty of defining gross negligence with satisfactory precision ; but the case of Tracy v. Wood ^ is considered very striking, in respect of the nice and difficult line of distinction be- tween what is and what is not gross negligence, under the circum- stances.* The explanations to the jury by the learned Judge in that case are, that gross negligence is the want of that care which unpaid bailees, of ordinary prudence, usually take of bailed prop- erty ; again, the want of that care which men of common sense, however inattentive, usually take pf their own property.; again, the care which men ought to be presumed to take of their own property ; again, the reasonable care which unpaid bailees usually take of bailed property ; and, again, that reasonable care which he himself usually took of bailed property. It has been ably argued that the Common-Law principle set out in the nature of the ac- tion, that any negligent conduct which causes injury or loss, or which satisfies the jury that there has been fraud and collusion, explains itself more clearly than those various definitions explain it. The expressions, as is said, convey so indefinite a meaning that we find Lord Holt saying, that a hirer and borrower are both liable for slight negligence ; and Sir William Jones and Mr. Jus- tice Story maintaining,, that a borrower is liable for slight negli- gence, and a hirer only for gross negligence. There is no test to which these difficulties are to be submitted but the form of the pleadings. The action against both is the same, and charges neg- ligent conduct, occasioning injury or loss : from which it appears that the older Judge is right in saying, that the same degree of negligence will make both liable (with which Blackstone agrees) ; and also in saying, that slight negligence or any negligence, if it be the legal cause of injury or loss, will make them liable.^ ' Tracy v. Wood, 3 Mason,- 132. • ' See note (a) to p. 572 of Kent's Com. ; and see Foster u. Essex Bank, «J. sup. " Note of Mr. Wallace to Coggs v. Bernard, commencing on p. 22 7 of 1 Smith's Lead. Cas., (Am. ed. 1847). In the note referred to, Mr. Wallace also says: " We find it frequently laid down that an unpaid bailee is liable only for gross negligence. This, il will be observed, is not a legal term ; the declaration charg- ing only fraud, or careless and negligent conduct, producing damage : it is an ex- pression used by judges and text-writers to explain what is meant by the legal terms used in the declaration. If actual fraud and malignity of design is the point of the case, then gross negligence must mean such wanton carelessness as satisfies the jury of such corrupt design; but if — as is more frequently the case — actual fraud in fact cannot be inferred, then negligence must be considered gross or not, according to the degree in which it is the cause of the injury. Nearly all the con- 22 LAW OF CAREIEES. [CHAP. 11. § 23. May it not be fairly collected from the opinions of the most learned Judges that, as a settled principle of the Common Law, any palpable negligence in a gratuitous bailee is culpable negligence ; and that if a loss, in consequence, happens to the bailor, the former is liable ? ^ According to Lord Cliief Justice Holt, in Coggs V. Bernard,^ the trust is a sufficient consideration to create the obligation of careful management. Lord Ellenbor- ough, in his address to the jury in Nelson v. Mackintosh,^ says that every person who delivers goods to another, to be carried for hire, has a right to the utmost care, and where a person does not carry for hire Jie is bound to take proper and prudent care of that which is committed to him ; and if he ascertains that the article is of great value, he is bound to watch with great care and dili- gence. Lord Chief Justice Denman said, in delivering the opin- ion of the Court in Hinton v. Dibbin : * " When we find ' gross neg- ligence ' made the criterion to determine the liability of a carrier [he is speaking of a common carrier] who has given the usual no- tice, it might, perhaps, have been reasonably expected that some- thing like a definite meaning should have been given to the ex- pression. It is believed, however, that in none of the numerous cases upon this subject is any such attempt made ; and it may well be doubted whether, between gross negligence and negli- gence merely, any intelligible distinction exists." In Wyld v. Pickford, in the English Exchequer Chamber,^ Parke, B., affirms fusion and uncertainty which belong to the subject of bailments have been occa- sioned by the unfortunate introduction of the words gross and digh. negligence, which do not belong to our law, and which convey no precise idea. The Civil- Law distribution and classification of those liabilities is entirely different from ours ; our law has conceived of the legal obligations and duties of men in relation to their neighbor's property, and has, by this action on the case, defined them with so much comprehensiveness and precision that the same principle applies irrespec- tively of the seat of the possession. ' See opinions of Holroyd, J., in Garnet v. Willan, 5 B. & Aid. 53 ; of Dallas, C. J., in Duff V. Budd, 3 Brod. & B. 177 ; of Best, J., in Batson v. Donovan, 4 B. & Aid. 32 ; Glover v. North Staffordshire R. 16 Q. B. 912, 5 Eng. L. & Eq. 335. « 2 Ld. Eaym. 209. ' Nelson v. Mackintosh, 1 Stark. 237. * Hinton v. Dibbin, 2 Q. B. 646. Cresswell, J., in Austin v. Manchester R. 10 G. B. 454, 11 Eng. L. & Eq. 512, in giving the opinion of the Court, says: "The term gross negligence, is found in many of the cases reported on this subject, and it is manifest that no uniform meaning has been ascribed to those words" ; and he refei's to the opinion of Lord Denman, in Hinton v. Dibbin, «6. sup. ; Armistead v. Wilde, 17 Q. B. 261. Wyld V. Pickford,"8 M. & W. 460. CHAP. II.] CAEEIEES WITHOUT HIKE. 23 that in some of the cases the term gross negligence has been defined in such a way as to mean " ordinary negligence," or the •want of such care as a prudent man would take of his own prop- erty ; and again, a common carrier, limiting his responsibility by notice, is not made irresponsible for any mistake or inadvertence, " but only for such as were made without negligence, whether gross or ordinary ; and a delivery may be even grossly negligent which is inadvertent." ^ In a still more recent case, in the same Court, Rolfe, B., remarks : " I said I could see no difference be- tween negligence and gross negligence ; that it was the same thing, with the addition of a vituperative epithet." ^ In a case in the Supreme Court of the United States, Mr. Justice Curtis, in giving the opinion of the Court, remarked: "The theory that there are three degrees of negligence, described by the terms slight, ordina/ry, and gross, has been introduced into the Common Law from some of the commentators on the Roman law. It may be doubted," he adds, " if these terms can be usefully applied in practice." (a) Shaw, C. J., in delivering the opinion in a case involving a question of insurance, says : " The terms slight neg- ligence, want of ordinary, and gross negligence, are useful in their way ; but they are not precise and exact enough, without a statement of the facts designated by them, to enable a Court to judge of the rights of the parties thereby affected. The proper business of jurisprudence seems to be to take a series of facts and circumstances, conceded or proved, and to declare what are the rights of the parties arising out of them." ^ § 24. If the subject-matter of the bailment consists of living animals, such as oxen, horses, or sheep, the degree of care to be exercised by a mandatary must be consistent with the character of the trust and the nature of the property, agreeably to the doc- trine as above stated by Lord EUenborough. The mandatary, therefore, in such case, is bound to give the animals a proper and 1 Ibid. 462. ' Wilson V. Brett, 11 M. & W. 113. See Steamboat New World v. King, 16 How. 474; Litchfield v. White, 3 Sandf. 545; and examine the authorities cited ante to § 4 and § 20 ; Deevort v. Loomer, 21 Conn. 245 ; Brand v. Troy R. 8 Barb. 368 ; Baltimore R. v. Woodruff, 4 Md. 257. ' Carter v. Holbrook, 3 Cush. 331. See ante, § 6. (a) See Steamboat New World v. King, 16 How. 474; Wells v. New York R. 24 N. Y. 181 ; Perkins v. New York R. Ibid. 196. 24 LAW OF CARRIERS. [CHAP. II. reasonable amount of exercise and fresh air, and to furnish them with suitable food and nourishment, and generally to provide them with all such things as are essential to the preservation of their health ; and his neglect so to do will amount to a positive breach of trust.^ Taking charge of cattle or sheep, and afterwards taking no heed of them, but allowing them to stray away on a common, and get drowned or lost, this is a breach of trust, and the mandatary is responsible for the loss.^ If a man turns a horse, of which he has consented gratuitously to take charge, into a dan- gerous pasture after dark, and the horse falls into a pit or a well, or into the shaft of a mine, this is gross negligence and breach of trust, and he shall be responsible for the loss.^ One driving a sulky, for amusement, and at the request of the owner, is liable if he do not use common prudence, and by carelessness and negli- gence break the sulky.* § 25. The true way of putting cases, where the subject-matter of a bailment is a perishable commodity, is to consider whether the party has omitted that care which bailees, without reward, are usually understood to take of property of the like nature." If the mandatary of a valuable painting, for example, takes no heed for its preservation, but lets it lie on the damp ground, or places it in a kitchen, or against a damp wall in a room where there is no fire, when he might have placed it in a dry situation and in perfect security, this is an act of gross negligence ; and if the picture is seriously injured or totally destroyed from damp or dirt, he must make good the loss, unless he can show that the mandator knew where it was placed, and assented to its being there kept.^ ' Si un cheval soit bail a un homme a garder et apres il ne lui done suste- nance, p. q. il morust action sur le cas gist. Hil. Term, 2 Hen. 7, 9, B. ; cited in Add. on Contr. 847. = Hil. Term, 2 Hen. 7 ; 2 Hen. 7, 9, B. «5. sup. ; Coggs v. Bernard, 2 Ld. Raym. 909. Seepoirf, §§ 34, 62. " Rooth V. Wilson, 1 B. & Aid. 61. If a man places a horse, of which he has consented gratuitously to take charge, in a pasture surrounded by rotten and very defective fences, and the horse, by reason thereof, strays away and is lost, — this is a breach of trust, for which he shall be answerable ; but if the horse was a wild and ungovernable animal, and got away through his own recklessness and impa- tience of restraint, as much as by reason of the defective fences, the bailee will not be responsible. Domat, Depot, s. 3, 6. * Carpenter v. Branch, 13 Vt. 161. ' Story on Bailm. § 67. " Mytton V. Cock, 2 Stra. 1099. CHAP. II.] CARRIERS WITHOUT HIRE. 25 § 26. A gratuitous bailee ouglit undoubtedly, therefore, to pro- portion his care to the injury or loss which is likely to be sustained by any want of proper care on his part.^ This is so obvious, that it scarcely requires to be insisted on that the degree of care which a mandatary may be required to exert must be materially affect- ed by the value of the property, and its consequent liability to be stolen. The care which would be proper as to goods of small value, and of a nature not to hold out strong temptation to theft, would not be . proper for goods of great value, which do hold out such temptation.^ Lord Stowell, in the case of The Rends- berg,^ has put a case in point. " If," said he, " I send a servant with money to a banker, and he carries it with proper care, he would not be answerable for the loss, though his pocket were picked on the way. _ But if, instead of carrying it in a proper manner, and with ordinary caution, he should carry it openly in his hand, thereby exposing valuable property, so as to invite the snatch of any person he might meet in the crowded population of the town, he would be liable ; because he would be guilty of the negligentia malitiosa, in doing that from which the law must infer that he intended the event which has actually taken place." § 27. What is, and what is not, gross negligence, or negligence in a gratuitous bailee, amounting to a breach of faith, is, as has already been stated, often a mixed question of law and fact,* but it is more generally a pure question of fact, to be determined by a jury.^ It must be judged of, in endeavoring to apply the spirit of the law, by the actual state of society, the general usages of life, and the dangers peculiar to the times, as well as by the apparent nature and value of the subject-matter of the bailment, and the degree of care it seems to demand.^ In Beauchamp v. Powley,'^ ' See Story on Bailm. §§ 15, 186. " Nelson v. Mackintosh, 1 Stark. 237. ' 6 Eob. Adra. 142, 155 ; and see ante, § 8. ' Ante, § 22 ; Doorman v. Jenkins, 2 A. & E. 261, per Taunton, J. ' Vaughn V. Menlove, 3 Bing. N. C. 468 ; Beardslee v. Richardson, 11 Wend. 25; Storert). Gowen, 18 Maine, 174. How much care, the Court in this case said, will in a given case relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending upon a great variety of circumstances, which could not exactly be de- fined. See, also. Nelson v. Mackintosh, 1 Stark. 237 ; Moore v. Moorgue, 1 Cowp. 479 ; Beatty v. Gilmore, 16 Penn. State, 463; Dawson v. Chauncey, 5 Q. B. 164. ' See ante, §§ 7, 8, 11, 16 ; Story on Bailm. § 11 ; Tompkins v. Saltmarsh, 14 S. & R. 275 ; Storer v. Gowen, u6. sup.; Tracy v. Wood, 3 Mason, 132. ' Beauchamp v. Powley, 1 Moody & K. 38. 26 LAW OF CAEBIEES. [CHAP. 0. where the defendant, a stage-coachman, received a parcel to carry gratis, and it was lost upon the road, Lord Tenterden directed the jury to consider whether there was great negligence on the part of the defendant, and the jury, thinking there was, found a verdict against him. The plaintiff, in Storer v. Gowen,i claimed to recover a sum of money, alleged to have been inclosed in a let- ter, and delivered by him to the defendant, to be carried to a cer- tain town, and left with a certain person for another person, but by the defendant converted to his own use. There was no evi- dence that the defendant received, or was to receive, pay for car- rying the letter, or the contrary. It was the province of the jury, the Court held, and not of the Court, to decide the question, whether gross negligence was, or was not, proved ; and the excep- tions which had been filed against the verdict, which was for the plaintiff, were sustained. In Tracy v. Woodj^ which was the case of a mandatary of money, the learned Judge said, if the jury were of opinion that the defendant omitted to take that reasonable care of the gold which bailees without reward in his situation usually take, or which he himself usually took of such property, under the circumstances, he had been guilty of gross negligence. § 28. As a general rule, as has been shown, a gratuitous bailee would be excused for a loss occasioned hj theft or robbery; {ol) but yet, if the circumstances attending a loss alleged to have been so occasioned are of a suspicious character, tending to throw a doubt upon the good faith of the mandatary, a jury will natu- rally disbelieve the theft or robbery, and treat the loss as unac- counted for and unexplained.® The captain of a vessel was in- trusted with a seaman's chest, to be carried gratuitously from Trinidad to England, and, during the voyage, the chest was opened to see if it contained any contraband articles, and was found to be filled with money and valuables, which were taken out by order of the captain, put into a canvas bag, and deposited in the captain's own chest in his cabin, where his own money and valuables were kept. On the arrival of the vessel at Gravesend, the captain and one of the mates went ashore, leaving the vessel in charge of the other mate, and the next morning the captain's ' Storer v. Gowen, 18 Maine, 174, ■ub. sup. ' Tracy v. Wood, 8 Mason, 132. ' Ante, § 11. (a) Fay v. Steamer New World, 1 Calif. 348. CHAP. II.] CAKRIEUS. WITHOUT HIRE. 27 chest was missing, and was never afterwards discovered. It fur- ther appeared that, the night preceding the loss, an excise officer and two young men belonging to tlie ship had been allowed to sleep in the captain's cabin ; and Lord Ellenborough left it to the jury to say whether the captain had been guilty of negligence, telling them that, as soon as he had discovered the valuable na- ture of the property, he was bound to watch it with great care and diligence ; and the jury, being of opinion that proper care had not been taken of the money, found a verdict for the plaintiff for the full value of the property.^ § 29. In cases, therefore, of losses alleged to have been com- mitted by theft or robbery, the circumst^inces, and the acts and declarations of the mandatary immediately preceding and di- rectly following the stealth, are of importance ; direct proof being difficult, and not to be expected. The circumstances and con- duct of the mandatary it is the duty of the jury to weigh with the utmost circumspection; and the presumption arising there- from is more or less strong, as they might appear to be natural and consistent, or otherwise.^ Evidence is constantly adapting it- self to the state of society and the concerns of the world, and therefore must accommodate itself to the altered mode of travel- ling, by stage-coaches, railroads, and steamboats,' instead of (as in more early times) on horseback or in private carriages. Car- riers are constantly more exposed to secret stealth in a crowded stage, railroad car, or a steamboat, crowded with passengers, where the traveller cannot keep his eye upon his own baggage, than by private conveyance. Public houses of entertainment in our large cities are generally filled with strangers, and without great circumspection the traveller cannot avoid exposure to great risks. Hence a traveller, acting as a gratuitous carrier of the property of another, should not, it has been held, be precluded from showing how he conducted himself, and the degree of care he took of the property in his custody.^ § 30. In Tompkins v. Saltmarsh,* S. delivered to T. at George- town, in the District of Columbia, five bank-bills, of five dollars each, to be conveyed to Athens, Bradford County, Pennsylvania, ' Nelson v. Mackintosh, 1 Stark. 237. ' Tracy v. Wood, 3 Mason, 132; Graves v. Ticknor, 6 N. H. 537. ' Tompkins v. Saltmarsh, 14 S. & E. 275. * Ub. sup. 28 LAW OF CARRIERS. [CHAP. II. there to be delivered to S. The Court held, in the first place, that T. was not bound to lay aside all other business to take the direct road from Georgetown to Athens ; and that it was compe- tent for him to show that, immediately on the receipt of the bills, he proceeded to Philadelphia, to New York, and to Athens, and to show how he conducted himself, and what care he took of the property, and that his care was the usual ordinary care. The Court was also of opinion that, in excuse for the loss of the money which had been stolen, it was proper that evidence should be received of the hue and cry raised immediately after the dis- covery of the loss, and the assiduous and indefatigable exertions of the carrier in searching for the money ; and though it was said that this would have been the course of a guilty man, yet it was one which an innocent man would naturally take, and which, if he did not take, all would condemn him. The next best evi- dence of the proof of a thing itself was the proof of those cir- cumstances which would naturally attend it ; and these were the production of the cut valise, the immediate promulgation of the theft, and pursuit of the property. § 31. In Tracy v. Wood,^ the case was : A undertook gratu- itously to carry two parcels of doubloons for B from New York to Boston, in a steamboat, by the way of Providence. A, in the evening (the boat being to sail early" in the morning), put both bags of doubloons, one being within the other, into his valise, with money of his own, and carried it on board the steamboat, and put it into a berth in an open cabin, although notice was given to him by the steward that they would be safer in the bar- room of the boat. A went away in the evening, and returned late, and slept in another cabin, leaving his valise where he had put it. The next morning, just as the boat was leaving the wharf, he discovered on opening his valise that one bag was gone, and he gave an immediate alarm, and ran up from the cabin, leaving the valise open there, with the remaining bag, his inten- tion being to stop the boat. He was absent for a minute or two only, and on his return the other bag also was missing. An ac- tion being brought against him by the bailor for the loss of both bags, the question was left to the jury whether there was not gross negligence, although the bailee's own money was in the same valise. The jury was directed to consider whether the party ' Tracy V. Wood, 3 Mason, 132. CHAP. II.] CAEEIERS WITHOUT HIRE. 29 iisod such diligence as a gratuitous bailee ought to use under such circumstances. They found a verdict for the plaintiff for the first bag lost, and for the bailee for the second. § 32. Althovigh, primd facie, in cases of the gratuitous carriage of goods for another, the bailee, when he keeps them with the same care as he keeps his own of the same description, would re- pel the imputation of negligence, yet by the above case of Tracy V. Wood it appears that the presumption may be overcome by proofs of actual negligence, or of conduct which, though applied to his own goods as well as to those bailed, would be deemed negligence in bailees, without hire, of ordinary prudence.^ ^ Story on Bailm. §§ 183, 185. Sir William Jones has put a case illustrating the former position in the text : " If Stephen desire Philip to carry a diamond rino- from Bristol to a person in London, and he put it with bank-notes of his own into a letter-case, out of which it is stolen at an inn, or seized by a robber on the road, Philip shall not be answerable for it, although a very careful or perhaps a commonly prudent man would have kept it in his purse at the inn, and have con- cealed it somewhere in the carriage. But if he were to secrete his own notes with peculiar vigilance, and either leave the diamond in an open room,- or wear it on his fintfer in the chaise, he would be bound, in case of a loss by stealth or rob- bery, to restore the value of it to Stephen." Jones on Bailm. 62. The other position may be illustrated by the case of Tracy v. Wood, Story on Bailm. § 185. And see 1 Browne, Civil Law, 383, note. In Story on Bailm. § 67, it is said that the true way of putting questions of this nature is, to consider whether the party has omitted that care which bailees without^ reward are usually understood to take of property of the like nature ; and he refers to Tracy v. Wood,u6. sup., and to the opinion of Lord Stowell, in the case of The William, 6 Rob. Adm. 316, which was a case of justifiable capture, where the captors are held responsible for due (that is, for reasonable) diligence. In that case Lord Stowell thus expressed himself: " On questions of this nature there is one position sometimes advanced which does not meet with my entire assent, namely, that captors are answerable only for such care as they would take of their own property. This, I think, is not a just criterion in such case ; for a man may, with respect to his own property, encounter risks, from views of particular advantage, or from a natural disposition to rashness, which would be entirely unjustifiable in respect to the custody of the goods of another person which have come to his hands by an act of force. Where property is confided to the care of a particular person, by one who is or may be supposed to be acquainted with his character, the care which he would take of his own property might, indeed, be considered as a reasonable criterion." " Cer- tainly it might," says Story, " if such character was known, and the party, under the circumstances, might be presumed to rely, not on the rule of law, but on the care which the party was accustomed to take of his own property in making the deposit. But, unless he knew the habits of the bailee, or could be fairly presumed to trust to such care as the bailee might use about his own property of a like nature, there is no ground to say that he has waived his right to demand reason- 30 LAW OF GAERIEES. [CHAP. 11. §■33. It is undoubtedly true, as has been expressly held in North Carolina, that a bailee who undertakes gratuitously to carry money is bound to use care and caution ; and that if he loses the money intrusted to him, but does not lose his own, it is very strong evidence that he did not use becoming caution.^ But it is quite clear that gross negligence may be committed by a depositary or a mandatary, although he may have kept the prop- erty intrusted to him with as much care as his own ; and this doc- trine has been sanctioned by cases other than that of Tracy v. Wood. The very point was presented in Doorman v. Jenkins.^ This was an action of assumpsit, in which it was proved that the defendant, — a coffee-house keeper, — having custody of money without reward, lost it, and made the following statement : That he had unfortunately put it, with a larger sum of money of his own, into his cash-box, which was kept in his tap-room ; that the tap-room had a bar in it, and was open on a Sunday, but the rest of his house, which Was inhabited, was not open on Sunday ; and that the cash-box, with his own and the plaintifiF's money, had been stolen on that day. The Judge left it to the jury whether the defendant was guilty of gross negligence, and told them that the loss of the defendant's own money did not necessarily prove reasonable care. The jury having found for the plaintiff, it was held, first, that the question of gross negligence was properly left to the jury ; and, secondly, that there was evidence upon which they might find for the plaintiff. § 34. Again, where a gratuitous bailee put a horse of his brother into a pasture with his own cattle, in the night-time, and by reason of a defect of fences the horse fell into a neighboring field and was killed, it was thought that he was responsible to the owner, because it was gross negligence to put the horse into a dangerous pasture to which he was unused.* § 35. It has, nevertheless, been deduced as a corollary from the able diligence." But in Monteith v. Bissell, Wright, 411, the Judge said that a bailee of money, without reward, was not liable, if he kept the money where he kept his own. ' Bland v. Womaek, 2 Murph. 873. See, also, Stanton v. Bell, 2 Hawks, 145. In Anderson v. Foresman, Wright, 598, the Judge told the jury that one carry-, ing money without reward is bound to take the same care of it that he does of his own. And see Foster v. Essex Bank, 17 Mass. 479. ' Doorman v. Jenkins, 2 A. & E. 256. = Rooth V. Wilson, 1 B. & Aid. 59. CHAP. II.J CARRIERS WITHOUT HIRE. 31 rule often laid down in the books, that a gratuitous bailee is bound to take the same care of the thing bailed as he takes of his own ; that, if he commits a gross neglect in regard to his own goods as well as in regard to those bailed, by which both are lost, he is not liable.^ But, notwithstanding, says Story, the weight of the authorities referred to, they do not seem to express the gen- eral rule in its true meaning. The Common Law, upon the sub- ject of gross negligence, differs from that which is supposed to be the doctrine of the Ciril Law ; for gross negligence, although it may be sometimes presumptive of fraud and undistinguishable from it, yet may consist of perfect innocence of intention.^ Hence it is no defence to a depositary that he has acted with good faith, if in truth he has been guilty of gross negligence ; ^ as appears by Tracy v. Wood, and the other cases above cited. In McLean v. Rutherford, in Missouri,* it was affirmed by one of the Judges that the bailee's property, sharing the fate of the bailor's, while it repels the presumption of fraud, will not, in all cases, excuse the bailee.^ A man might, in respect of his own property, be willing to en- counter extraordinary risks, or adventure upon mere gambling speculations, with a view to a particular advantage, or from a nat- ural disposition to rashness, which would be entirely unjustifiable in respect to the goods of another put in his custody.^ ' Sir William Jones seems, in some places, so to understand the doctrine. Jones on Baiim. 31, 32, 46, 47. Bracton, also, so lays it down on the authority of the Civil Law. Bracton, Lib. 3, cap. 2, § 1 ; Just. Inst. Lib. 3, tit. 15, § 3 ; Dig. Lib. 16, tit. 3, 1. 20, 32. Lord Holt has also given the authority of his great name, Coggs v. Bernard; and he has been followed by Kent, 2 Kent, Com. 562, 563, and note (a); Foster v. Essex Bank, 17 Mass. 479. See Story on Bailm. § 53. " Story on Bailm. § 64. ' See ante, § 10, note. * Story on Bailm. § 66. ^ Per Napton, J., in McLean v. Rutherford, 8 Misso. 109. ' Cases may, indeed, be put in which the circumstances of extreme rashness on the part of the depositor are so strong as justly to create an exception to the gen- eral rule of law, or, rather, a dispensation from it; as, if the depositor should knowingly intrust his diamonds or other valuables to a man notoriously weak and infirm in judgment, or to a minor without any experience or discretion, or to a man grossly negligent and prddigal in his own affairs, or subject to an absence of mind bordering on derangement, or to a person given to habitual intoxication, and, from these known infirmities, the thing bailed should be innocently lost ; in such case there might be strong ground to presume that the depositor was con- tent to trust the party with all his faults and infirmities, and to take upon himself & 82 LAW OF CAERIEES. [CHAP. II. § 36. A mandatary who undertakes an office of skill is bound to exercise such an amount of skill as he possesses, or such an amount of skill as, by his conduct and actions and ordinary course of employment, he holds himself out to the world to possess. An illustration of this principle is given by Mr. J. Heath : " If," says he, " a man applies to a surgeon to attend him in a disorder, for a reward, and the surgeon treats him improperly, there is gross negligence, and the sugeon is liable to an action. The sur- geon would also be liable for such negligence, if he undertook gratis to attend a sick person, because his situation implies skill in surgery. But if the patient applies to a man of different em- ployment or occupation for his gratuitous assistance, who either does not exert all his skill, or administers improper remedies to the best of his ability, such person is not liable." ^ So, a person who rides a horse gratuitously, at the owner's request, for the pur- pose of showing him for sale, is bound, in doing so, to use such skill as he actually possesses ; and if proved to be a person con- versant with and skilled in horses, he is equally liable with a bor- rower from an injury done to the horse while ridden by him.^ § 37. How far a bailee without hire may add to his responsi- bility by inserting special termg in his promise to his bailor is as- serted to be a point not by any means clearly settled by the Com- mon Law.^ The rule of the Civil Law, as applied to a depositary, and which is considered a rule of universal justice,* is that the law depends on the contract : Si convenit, ut in d^osilo et culpa prcEstetur, rata est conventio ; contractus enim legem ex conven- tione accipiunt.^ Or, as it is otherwise expressed : Si quid nomi- natim convenit, vel plus, vel minus, in singulis contractibus, hoc the responsibility for all losses not arising from actual fraud. At least, it might fairly be put to a jury to presume a special contract, in such a case, that the de- positary should take the same care as he did of his own property, and no more, and he should not be responsible except for fraud. But these cases do not im- pugn the general rule. Story on Bailm. § 66 ; The William, ub. sup. ; McLean V. Rutherford, vb. sup. ' Shiells V. Blackburne, 1 H. Bl. 162. ' Wilson V. Brett, 11 M. & W. 113. ° By Mr. Smith in his note to Coggs v. Bernard, 1 Smith's Lead. Cas. 222, Am. ed. 1847. But he refers to Kettle v. Bromsalf, Willes, 118; to the observa- tions of Sir William Jones, in Southcote's case (4 Co. R. 83 b) ; and to the ob- servations of Powell, J., in Coggs v. Bernard. * See Story on Bailm. § 81. » Dig. Lib. 16, tit. 3, 1, § G; Pothier, Traite de Depot, n. 30. CHAP, n.] CARRIERS WITHOUT HIRE. 33 servabitur, quod inilio convenit. Legem enim contractus debits So, by the Civil Law, the general responsibility of a mandatary may be varied by the special contract of the parties, either enlarg- ing or qualifying, or limiting it (except for the protection of him- self against fraud) ; ^ and the particular contract will furnish the rule of the case : 'Placuit, posse rem hdc conditione deponi, marv- datumque suscipi vt res periculo ejus sit, qui depositum vel man- datum suscepit.^ Story considers that there is no principle of the Common Law which would prevent a depositary from contracting not to be liable for any degree of negligence, in which fraud is really absent ; and that the maxim of our jurisprudence, modus est conventio vincunt legem, applies to all contracts not offensive to sound morals, or to positive prohibitions by the legislature. If a depositary, says this learned writer, should specially contract to keep the deposit safely, he might be liable for ordinary negli- gence, although the law would otherwise hold him liable only for gross negligence. Upon this ground proceeds the learned writer to say, Southcote's case may, perhaps, be maintained to be good law, and not to be liable to the objection made against it in Coggs V. Bernard.* If, indeed, it proceeded . upon the ground men- tioned by Lord Coke, that a bailment upon a contract to keep, and to keep safely is the same thing, it certainly is not law, and was overruled in Coggs v. Bernard.^ But from the report it would seem that the bailment was there to keep safe ; and if so, then upon that special contract the party might have been held re- sponsible, although he would not otherwise have been liable by the general law. This was the doctrine maintained by all the Judges in Coggs V. Bernard, which case proceeded mainly upon this ground.^ In a later case, the same distinction was adopted by the Court,'^ in which it was held, that if a depositary should ac- cept to keep safely, he would be responsible for losses by theft or robbery, although he would not otherwise be responsible upon the • Dig. Lib. 50, tit. 17, 1, 23; Jones on Bailm. 47, 48. " See Story on Bailm. § 32. By the Civil Law, illud nulla pactione effici potest, ne dolus prcestetur. Pothier, Contrat de Mandat, n. 50. ' Dig. Lib. 17, tit. 1; Pothier, Contrat de Mandat, n. 50; and see Story on Bailm. § 182 a. * Southcote's case, 4 Co. R. 83 6. " See ante, § 20. ' See Jones on Bailm. 42 - 45. ' Kettle V. Bromsall, Willes, 118. 3 34 LAW OF CAEEIEES. [CHAP. H. general principles of law.^ In a case in Missouri, it has been held that where the special ■ promise was to drive the horses of another to a distant market, and sell them as he would his own, and the bailee is taken ill by the , way, and so unable to take charge and dispose of them in person, he may employ an agent for such purpose, without incurring any other liability than that for gross negligence ; and that under such contract he is not bound to dispose of the horses as a prudent man would dispose of his own.^ § 38. As to the party upon- whom the burden of proof lies, in an action by tlie bailor against a gratuitous bailee for gross negli- gence, a regard must be had to the form of the action. Where a primd facie case of trover is made out at the trial, the rule is dif- ferent from what it would be in an action of assumpsit or an action on the case founded on negligence. In the latter actions the plaintiff must make out his case, primd facie as he charges it ; in the former, he may rely on an apparent conversion, or on a de- mand and refusal of the property, and thus put the other side on the defence. But the general principle of the Common Law is, that every man is presumed to do his duty, until the contrary is established ; and on this account, in an action of assumpsit, or in an action on the case founded upon negligence, the burden of proof is on the plaintiff.^ In Graves v. Ticknor,* it was held, that 1 Story on Bailm. § 32, 33. " McLean w. Rutherford, 8 Misso. 109. ' Story on Bailm. § 213 ; Williams v. East India Co., 3 East, 192 ; Mr. Wallace, in his very learned note to Coggs v. Bernard (1 Smith, Lead. Cas. 243, Am, ed. 1847), says, it may not be improper to note, that where money is the subject of bailment, assumpsit is the proper remedy ; assumpsit in the form of money had and received usually being, in case of money, a substitute alike for trespass, trover, and case ; though as a substitute for trover, there need be no previous demand. In trover, proof of demand and refusal throws upon the defendant the burden of proving that the property was lost or stolen. In case, the burden of proving neg- ligence is on the plaintiff. Where the goods have not been returned or delivered, by the defendant, the most convenient way for the plaintiflF to proceed appears to be, first, to make a demand, and then to bring trover and case ; the demand and refusal will cause a recovery on the former count, unless the r injury which might happen, if the vessel was not carried thi^gh in safety, the defendants were bound to reasonable dili- gence.\ I h4^- But even an express promise by a private carrier to carry .-goods safely is but the undertaking implied by law to carry them free from ordinary negligence, and does not insure against losses by robbers or any taking by force.^ Blackstone lays down the rule, that " if the bailee undertakes specially to keep the goods safely and securely, he is bound to the same care as a prudent man would take of his own " ;^ that is, he is bound to ordinary diligence. Indeed, the words safely and securely are always to be construed with reference to the promise implied by law from the peculiar relation of the parties, and not in their more literal sense. In assumpsit against a cab proprietor, the declaration stated that the plaintiff hired the vehicle, and that in consideration of the premises, and that the plaintiff with his luggage would be- come a passenger, and of a certain reward, the defendant promised the plaintiff to carry and convey him and his luggage " safely and securely " from, &c. to &c., and alleged a loss of part of the lug- gage by the negligence of his servant. It was held that the dec- laration was sufficient to charge the defendant for a breach of his implied duty to use an ordinary degree of care, the words safely and securely not necessarily importing a more extended liabil- ity.* In this case, Tindal, C. J., said that it could only be ar- gued and inferred from the cases, that " we are to construe these words salvo et secure with reference to the duty or the- promise implied by law from the particular position and relation of the parties, and not in the stricter sense conteuded for on the part of the defendant. In the present case the plaintiff hired a cab to convey himself and his luggage to a certain place. The undertaking charged in the declaration, ' safely and securely ' to convey the plaintiff with his luggage to his destination, means ' Penn. Steam Nav. Co. v. Dandridge, 8 Gill & J. 248. ' Story on Bailm. §§ 83, 457, and ante, §§ 20, 37. ' 2 BI. Com. 452. The learned judge .who delivered the opinion of the court in Foster v. Essex Bank, 16 Mass. 479, seemed to think that there is much to ■warrant the suggestion that, in a case where the bailment is to keep safely, the depositary would not be liable for a loss by theft, unless it should arise from his own negligence and want of due diligence and care ; and see Whitney ». Lee, 8 Met. 91. * Ross V. Hill, 2 C. B. 877, 3 Dowl. & L. 788. CHAP. III.] PRIVATE CAERIERS FOR HIRE. 63 no more than safely and securely with reference to the degree of care which, under the circumstances, the law required of the de- fendant ; that is, that he shall use such a reasonable degree' of care, that the plaintiff shall incur no damage or loss througlf bis, the defendant's, negligence or default. If it had appeared that the defendant was a common carrier, his duty would have been to carry and deliver safely, at all events, without excuse, unless pre- vented by the act of God or the Queen's enemies. If, on the other hand, he had been a mere gratuitous bailee, then a less de- gree of care and caution would have been required of him than is required from a bailee for reward. The words safely and se- curely, therefore, receive different interpretations with reference to the character in which the defendant is charged. I cannot help thinking that this is expressly decided in Coggs v. Bernard." ^ § 61. According to the opinion of Lord Abinger, in Brind v. Dale,^ in cases of the carriage of goods for hire, by persons who are not common carriers, the onus probandi is on the plaintiff to show that the loss has been by the negligence of the carrier or his servants. But in fact there are discrepancies in respect to depositaries for hire in general, whether the onus probandi for negligence lies on the plaintiff, or of exculpation on the defendant in an action for the loss.® In some cases in England, it has ap- peared that the latter rule is maintained;* yet in cases other than in the one of Brind v. Dale, the onus of proving negligence lies on the plaintiff.^ In this country it is considered that the weight of authority coincides with the opinion that the burden of ' Coggs V. Bernard, 2 Ld. Baym. 909. ' Brind v. Dale, 8 Car. & P. 207. ' See Story on Bailm. § 454. * Ante, §§ 48-50. ' It has been ruled in England, in case against a depositary for hire, that proof merely of the loss, where the goods were stolen by his servants, is not sufficient to put the bailee on his defence ; and that the burden of proof of negligence is on the bailor. Finacune v. Small, 1 Esp. 314. In another case, in an action against a pawnee for a negligent loss of the pawn, it is held, that it is incumbent on the plaintiff to support the allegations of his declaration by competent proofs, and the burden of proof, in respect to negligence, is thrown on him. Cooper v. Barton, 3 Camp. 5. In Harris v. Packwood, 3 Taunt. 264, which was the case of a special acceptance by a. common carrier, but who yet was held liable for actual negli- gence, Lawrence, J., charged the jury, that the onus of proving care lay with the defendant ; but the court held otherwise, on a motion for a new trial ; and that express negligence must be shown by the plaintiff. This case is understood as going that length by Abbott, C. J., in Marsh v. Home, 5 B. & C. 322. A similar case is reported in 1 H. Bl. 298, Clay v. Willan. 54 , 1 " LAW OF CARRIERS. [CHAP. IH. proof .is on the plaintiff, although an inclination of opinion has sometimes been expressed the other way.^ With regard to the breaking down and overturning of a stage-coach, it seems that • either of those events \s primd facie evidence of negligence on the part of the proprietor and his servants.'^ (6) ' Story on Bailm. § 454. That negligence must be shown by the plaintiff is maintained in Newton v. Pope, 1 Cow. 109. In Piatt v. Hibbard, 7 Cow. 497, Walworth, the Ch., told the jury that, in all cases of bailment of property to one who carries on the business of receiving it into his custody for reward, it is neces- sary that a strict rule should be enforced against the bailee to prevent fraud. Hence, when property intrusted to a warehouseman, wharfinger, or storing and forwarding merchant, in the ordinary course of business, is lost, injured, or de- stroyed, the weight of proof is with the bailee, to show a want of fault or negli- gence on his part;' or, in other words, to show the injury did not happen in con- sequence of his neglect to use all that care and diligence on his part that a pru- dent or careful man would exercise in relation to his own property. In Clarke v. Spence, 10 Watts, 335, Rogers, in delivering the opinion of the court, said: "It is to be regretted that this is not the rule, but it seems to be contrary to the cur- rent of authority, as has been clearly shown by the cases cited at the bar. The rule is, when a loss has been proved, or when goods are injured, the law will not intend negligence. The bailee is presumed to have acted according to his trust, until the contrary is shown. But to throw the proofs of negligence on the bailors, it is necessary to show, by clear and satisfactory proof, that the goods were lost, and the manner they were lost. All the bailor has to do in the first instance is to prove the contract and the delivery of the goods, and this throws the burden of proof that they were lost, and the manner they were lost, on the bailee, of which we have a right to require very plain proofs." (a) See also, to the same effect, Beekman v. Shouse, 5 Bawle, 179. In Schmidt v. Blood, 9 Wend. 268, the court held, that a warehouseman, not chargeable with negligence, is not responsible for goods intrusted to him if stolen or embezzled by his storekeeper or servant, and the onus of showing negligence lies on the owner. The Supreme Court of Tennessee hold that, " in a bailment for hire, the onus probandi of negligence is upon the bailor ; and that, after the bailor has proved the contract and delivery of the goods, the burden of proof is upon the bailee to show their loss and the manner they were lost, and this throws the proof of negligence upon the bailor." Bunyan v. Caldwell, 7 Humph. 134. The above case of Piatt v. Hibbard, 7 Cow. 497, was commented on and disapproved by the court in Foote v. Storrs, 2 Barb. 326, in which it was held, that in all cases where a defendant is bound only to ordinary care, and is liable only for ordinary neglect, the plaintiff cannot reason ■upon the mere proof of the loss of the articles intrusted to the bailee ; and that the onus is on the plaintiff to give some evidence of a want of care in the bailee or his servant. As to the onus probandi, in cases of carriers without hire, see ante, §38. " Christie v. Griggs, 2 Camp. 79 ; Stokes v. Saltonstall, 13 Pet. 181. (a) Verner w. Sweitzer, 32 Penn. State, 208. (b) See post, § 569. CHAP, ni.] PKIVATE CAEEIEBS FOE HIRE. 55 § 62. By the Civil Law, as has already been shown,^ the set- tled doctrine is, that in all cases of theft, the burden of proof is thrown upon the bailee to repel the presumption of negligence. And by the French Law, where a loss or injury happens to a thing deposited for hire, the burden of proof is in like manner thrown upon the hirer to repel the presumption.^ By the Scottish Law, if any specific injury has occurred not manifestly accidental, the onus probandi lies on the bailee to justify himself by proving the accident.^ § 63. The Common Law does not probably differ from the Civil Law as to the onus probandi, after a due demand of the property and refusal. The demand and refusal would be evidence, as has been seen, of a tortious conversion, so that it would then be in- cumbent on the bailee to give evidence of a loss by casualty or superior force, and independent of his own statement.* It has been said, in respect to depositaries not for hire, that the distinc- tion would seem to be, that when there is a total default to deliver the goods bailed, on demand, the onus for accounting for the de- fault lies with the bailee ; otherwise he shall be deemed to have converted the gOods to his own use, and trover will lie.^ It may, therefore, be different where aprimd facie case of trover is made out, from what it would be in an action of assumpsit, or an action on the case founded on negligence.^ In many complicatad cases of evidence, the burden of proof may alternately shift from one party to the other, in different stages of the trial.' ' Ante, § 48. " Both. Contrat de Louage, u. 194, 199, 200; Code Civil of France, art. 1732 et seq., cited in Story on Bailm. § 454 ; and as to Civil-Law authorities, see Story on Bailment, § 278, 339, 411. • 1 Bell, Com. 454 (5th edit.). • Ante, § 38 ; Story on Bailm. § 339. A demand and refusal is ordinarily evi- dence of a conversion, unless the circumstances constitute a just excuse. Phill- pot V. Kelley, 3 A. & E. 106 ; Cranch v. White, 1 Bing. N. C. 414. ' See note to the case of Piatt v. Hibbard, 7 Cow. 500. Proof of the loss of goods by a carrier will not be sufficient to maintain a count in trover. But a demand and non-delivery are evidence of a conversion, and are sufficient, unless the carrier can give some legal excuse. Koss v. Johnson, 5 Burr. 2825, 2 Salk. 655. A judgment in an action of assumpsit, against a bailee, for a breach of his contract to transport and deliver the property bailed, in which the owner has re- covered damages for the value of the property, without satisfaction, is no bar to an action of trover against a third person, who has purchased the property of the bailee. Hyde v. Noble, 13 N. H. 494. • Ante, § 38. ' Story on Bailm. § 278. 56 LAW OF CARRIERS. [CHAP. III. § 64. In an action against a bailee for negligence, it appears that his conduct and his statements contemporaneous with the loss are admissible evidence in his favor to establish the nature of the loss, or how it occurred ; but the jury are to decide in refer- ence to all the circumstances, and are at liberty either to believe or disbelieve the bailee's statement, or own account.^ § 65. In a suit against a carrier for goods lost, the promise of the carrier, after the commencement of the suit, to pay for the goods if the plaintiff would swear to a list of them, was held an admission of the carrier's liability ; and an affidavit of the plain- tiff, made in pursuance of such promise, is admissible in evidence to the amount of his demand.^ § 66. Upon general principles it would seem that warehouse- men, wharfingers, and private carriers for hire ought to have a specific lien on the thing for their labor and services, like artisans; but it is a matter upon which, it is said, the authorities present no rules for a guide.^ (a) Warehousemen and wharfingers have sometimes in England a lien by custom ; * and it has been held • Doorman v. Jenkins, 2 A. & E. 256 ; Tompkins v. Saltmarsh, 14 S. & R. 275 ; and see ante, § 40. ' Hurd V. Pendrigh, 2 Hill, 502; and see Brooks v. Ball, 18 Johns. 337. ' Story on Bailm. § 453 a (edit, of 1846). In respect to a specific lien, it has been laid down as a general rule, that where a bailee spends labor and skill in the improoement of the chattel bailed, he has a lien on it. Bevan v. Waters, 1 Moody & M. 235. But it has been added, that his Ken is confined to cases where additional value has been conferred by him on the chattel, either directly, by the exercise of personal labor or skill, or indirectly, by the intervention of any instru- ment over which he has control. Scarfe v. Morgan, 4 M. & W. 270; Jackson v. Cummings, 5 lb. 342. Upon this latter ground it has been held in England, that an agister of cattle has no lien on the cattle for the pasturage consumed. This doctrine (Story on Bailm. ub. sup.) has as yet not been recognized in this country ; and certainly it is not without its difficulties. In its application to livery-stable keepers, it may be admitted, because there would seem to be an implied contract to deliver the animal at the mere pleasure of the owner. ' Rex V. Humphrey, 1 M'Clel. & Y. 194; Lockhart v. Cooper, 1 Scott, 481. Where no lien exists at Common Law, it can only arise by contract with the par- ticular party, either express or implied ; it may be implied either from previous dealings between the same parties upon the footing of such a lien, or from a well and long established usage of trade, so general as that the jury must reasonably presume that the parties knew of and adopted it in their dealing. Kushforth v. Hadfield, 7 East, 224. There is a well-known distinction between a commer- cial lien, which is the creature of usage, and a Common-Law lien, which is the (a) See Dresser v. Bosanquet, 4 Best & S. 460. CHAP. III.] PRIVATE CARRIERS FOR HIRE. 57 in Pennsylvania that warehousemen have a specific Hen, although it cannot be said that by care and skill they have, like artisans, improved the thing bailed.^ Chip f Justice Gibson, who delivered the opinion of the court in this case, held, that on the ground of principle it was not easy to discover why the warehouseman sliould not have the same lien for the price of future delivery as that of a carrier (^common carrier) has. The one delivers at a different time, the other at a different place ; the one after custody in a warehouse, the other in a vehicle ; and that was all the difference. It was true that the measure of a common carrier's responsibility was greater ; but that, though a consideration to influence the quantum of his compensation was not a consideration to increase the number of his securities for it. The learned judge, in short, understood the law to be, that a warehouseman (and a private carrier stands on the same footing) stands on a footing with a common carrier, whom in this country he closely resembles. Now, common carriers, in virtue of the obligation they are under, by the " custom of the realm " to carry for a reasonable reward, have a lien for the carriage price of the particular goods ; for, as the law imposes that burden, it gives them the power of retaining for their indemnity .^ But it is held, in Pennsylvania, that the Common-Law rule, that common carriers are obliged to receive goods for carriage, at the current price, cannot properly be ap- plied.2 creature of policy. The first gives a right to retain for a balance of accounts ; the second, for services performed in relation to the particular property. Com- mercial or general liens, which have not been fastened upon the law merchant by inveterate usage, are discountenanced by the courts as encroachments on the Common Law. Per Gibson, C. J., in delivering the opinion of the court iu Steinman v. Wilkins, 7 Watts & S. 466. And see, as to the general principles of the law of lien, Chase v. Westmore, 5 Maule & S. 180 ; Jacobs v. Latour, 5 Bing. 132; Kirkham v. Shawcross, 6 T. R. 17 ; Bevan v. Waters, Moody & M. 235 ; Jackson v. Cummings, 5 M. & W. 342. See post, Chap. IX. • Steinman v. Wilkins, 7 Watts & S. 466. ' As will be shown in a subsequent chapter. Ch. IX. Sage v. Gittner, 11 Barb. 120; Cox v. O'Riley, 4 Ind. 368. » Gordon v. Hutchinson, 1 Watts & 8. 285 ; and Steinman v. Wilkins, vb. sup. For a more full consideration of the doctrine of lien as applied to carriers, see posl. 68 LAW OF CAKKIERS. [CHAP. IV. CHAPTER IV. WHO ARE COMMON CARKIEES. § 67. Common carriers are the second description of persons who have been mentioned^ as carrying /or Aire, and whose con- tract, in that capacity, belongs to the class of bailments denomi- nated Locatio operis, and is styled Locatio operis mercium vehen- darum? The trust created by this contract, being both for the benefit of the bailor and the bailee, the latter, if only a private carrier, is bound only to ordinary diligence, as appears by the pre- ceding chapter. But a common carrier differs from a private car- rier in two important respects : 1. In respect of duty, he being ■ obliged by law to undertake the charge of transportation, which no other person, without a special agreement, is. It is not even necessary, to charge him as carrier, that a specific sum should be agreed upon for carriage, although he is entitled to reasonable compensation. 2. In respect of risk. A common carrier is re- garded by the law as an insurer of the property intrusted to him ; or, in other words, he is legally responsible for acts against which he could not provide, from whatever cause arising, the acts of God and the public enemy only excepted. The loss of, or damage done to, property in his possession to be carried, is of itself sufficient proof of negligence ; the maxims being that everything is negli- gence which the law does not excuse ; so that in all cases, but those just mentioned as excepted, his faultlessness is no dis- charge.^ (a) This peculiar duty and this extraordinary responsi- bility imposed by the force of the general law upon a common carrier are to be extensively considered in subsequent chapters ; but it is important to inquire beforehand when persons become common carriers, inasmuch as it would be unjust to impose upon an individual the duty and the responsibility just mentioned, until • Ante, § 1. ' See the different divisions and subdivisions of bailments, ante., §§ 13-15. ' See Coggs v. Bernard, 2 Ld. Raym. 909. (a) Tlie liability of the carrier is not affected by the fact that the property lost is insured. Burnside t). Union Steamboat Co., 10 Rich. 113. CHAP. IV.] WHO ARE COMMON CARRIERS. 69 he has so conducted himself and so held himself out, as to have fairly assumed them.^ Therefore it is proposed in the present chapter to consider, first, who are common carriers ; (a) and secondly, whether the duties and obligations which persons have incurred by voluntarily becoming such extend alike to every de- scription of thing. § 68. Rest : The general law of bailments, as has before been mentioned,^ was so unsettled, from the reign of Elizabeth to the reign of Anne, as to have been in that interval the subject of sur- prising diversity of opinion and inconsistency of argument. But the rule of the above-mentioned extraordinary responsibility of a common carrier seems to have been first established in the com- mercial reign of the former, upon the principles of policy and con- venience, or to favor and encourage commerce by guarding against the carrier's collusion and combination with thieves and robbers.* Lord Chief Justice Holt, in the case of Coggs v. Bernard,* which was decided in the second year of the reign of Anne, in enume- rating and expounding the different sorts of bailments, mentions the one of the carriage of goods for hire as " a delivery to carry for a reward to be paid to the bailee," which, he says, " is either a delivery to one that exercises a public employment, or a delivery to a private person." Therefore, according to Lord Holt, to bring a person within the description of a common carrier, he must ex- ercise the business of carrying as a " public employment," or, as it has been said, " he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in -. the transportation of goods for hire, as a business, and not as a casual occupation pro hac vice." ^ (b) ' As is said by the court in Boyce v. Anderson, 2 Pet. 150. ' Ante, § 3. ' Jones on Bailm. 103 ; Story on Bailm. §§ 489, 490. * Coggs V. Bernard, 2 Ld. Kaym. 909. ' Story on Bailm. § 495 ; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, C. C. 32. In North Carolina, to render a person liable as a common carrier, he must make the carriage of goods his constant employment, and one employed pro hac vice, though for hire, it not liable as a common carrier. Anonymous v. Jackson, 1 Hayw. 14 ; Mershon v. Hobensack, 3 Zab. 580; and see 2 lb. 372; York R. V. Crisp, 14 C. B. 627, 25 Eng. L. & Eq. 396. (a) The owner of a toll-bridge is not a common carrier. Grigsby v. Chappell, 5 Rich. 443. (J) A person who holds himself out to the public to carry for hire is a common carrier as much in his first trip as in any subsequent one. Fuller v. Bradley, 25 60 LAW OF CARRIERS. [CHAP. IV. § 69. It was determined in the eighth year of the reign of Anne, that any person undertaking for hire to carry the goods of all per- sons indifferently is, as to the liability imposed, to be considered a common carrier. The case was trover for goods which had been put with the carrier's wagon into a barn and taken as a distress. The person to whom the goods had been intrusted carried cheese to London, and usually loaded back with goods for a reasonable price for all persons indifferently ; and the court held, that " such an undertaking to carry for hire, as this privilege, was to be con- sidered that of a common carrier, and the goods so delivered for that time under legal protection, and privileged from distress; and so wherever they are delivered to a person exercising any public trade or employment." ^ So of innkeepers. A person who ' Gisbourn v. Hurst, 1 Salk. 249. Evidence that the defendant kept a book- ing-office for a considerable number of coaches and wagons is not of itself suffi- cient to prove him a common carrier. Thus, where it •was proved that at the door of a booking-office there was a board on which was painted, " conveyances to all parts of the world," and list of names of places, was held not sufficient proof that the owner of the office was a common carrier, so as to charge him for the loss of a box which was booked there. Upston v. Slark, 2 Car. & P. 598 ; Gilbert v. Dale, 1 Nev. & P. 22. A promise by a bookkeeper to make compensation for the loss of a parcel is not binding upon the master, unless he be proved to be a general agent of the master for such purposes. Olive v. Eames, 2 Stark. 181. As will be more fully illustrated (^posl, § 75), the difference between a common carrier and warehouseman, in respect to liability, is the same as between a com- mon carrier and a private carrier. Sometimes a person is both a common carrier and a warehouseman, and when the goods are safely deposited in his warehouse •his liability as common carrier ceases, and he is only liable for ordinary neg- ligence, as a private bailee for hire. In a late case, it appeared that four rolls of leather, the property of the plaintiff, were delivered to the defendants (Boston and Providence Railroad Corporation) at Providence, to be transported to Bos- ton, one of which rolls of leather, on their being inquired for by the teamster of the plaintiff at the depot in Boston, was missing. It was the usage and practice of the defendants to deposit the goods they transported, until the owner should have a reasonable time to remove them, and therefore the court held that the defend- ants were not liable as common carriers for the loss of the roll of leather from the warehouse; but liable only as depositaries, or for want of ordinary care. Thomas V. Boston R., 10 Met. 472. Penn. State, 120. A railroad which occasionally carries goods on freight in pas- senger trains is not a common carrier of goods in such trains. Elkins v. Boston & M. B., 3 Foster, 275. And the same rule applies to a railroad which occasion- ally carries passengers in its freight trains. Murch v. Concord R., 9 Foster, 9. See, generally, Lawrenoeburgh R. ». Montgomery, 7 Ind. 474 ; Pennewill v. Cul- Jen, 5 Harring. Del. 238. CHAP. IV.] WHO AEE COMMON CARRIERS. 61 only occasionally entertains travellers for pay is not an imnkeeper within the meaning of the law, and if property is intrusted to his care by his guests, and it is lost, he is not responsible as a common innkeeper. Most of the farmers in the new States and Territories in the West occasionally entertain travellers, without supposing themselves liable as common innkeepers for the horses or other property of their guests which may be stolen without any fault of their own. And it is held, in the new parts of the United States, that to be subject to the same responsibility attaching to innkeep- ers, a person must make tavern-keeping, to some extent, a regular business, and so hold himself out to the world,} § 70. In Dwight v. Brewster, in Massachusetts,^ Parker, C. J., in delivering the opinion of the court, defined a common carrier to be " one who undertakes for hire to transport the goods of such as choose to employ him, from place to place" ; and this, he added, " might be carried on at the same time with other business." But in this country there is a discrepancy in the authorities as to the undertaking necessary to impose upon persons the responsibility of common carriers. Indeed, in this country it is considered reason- able, and to be well settled, that a person who undertakes, though it be only^ro hac vice, to act as a common carrier, that is, to carry for hire without a special contract, thereby incurs the responsibility of a common carrier .^ Botli in Pennsylvania* and in Indiana,^ (a) ' Lyon V. Smith, 1 Morris, Iowa, 184. Thtf common law of England, as to the liability of innkeepers, is in force in Kentucky. Kiston v. Hildebrand, 9 B. Mon. 73. In Dawson v. Chamney, 5 Q. B. 164, it was held, that when chattels have been deposited with an innkeeper, the. prima facie presumption, when they are there lost or destroyed, is that the negligence of the innkeeper or his servants wsis the cause of the loss or damage. But this presumption may be rebutted ; and if the jury find in favor of the innkeeper, as to negligence, he is entitled to succeed on a plea of " not guilty." Lord Denman, C. J., in delivering the judgment of the court in this case, observed : " Mr. Justice Story's comment and excellent treatise on Bailments was quoted as laying down a different rule ; this does not appear to us to be so, if the whole passage is examined." The decision in this case was recognized by the Supreme Court of Vermont, Merritt v. Claghorn, 23 Vt. 177. And see Overseers v. Warner, 3 Hill, 150. And see post, 133. And see Sunbolf V. Alford, 3 M. &. W. 248. ' Dwight «. Brewster, 1 Pick. 50. ' See Mr. Wallace's learned note to the case of Coggs v. Bernard, 1 Smith, Lead. Cas. (Am. ed. 1847), p. 220; Moses v. Norris, 4 N. H. 304. * Gordon v. Hutchinson, 1 Watts & S. 285. ' Powers V. Davenport, 7 Blackf. 497. (a) So in Texas. Chevallier u. Straham, 2 Texas, 115. 62 LAW OF CARRIERS. [CHAP. IV. it has been held that a wagoner who, upon his request, carries goods for hire, is a common carrier, whether the transportation be his principal and direct business, or an occasional and incidental employment ; and the principal business of the carrier in both of the cases referred to was that of a farmer. In the case in Penn- sylvania, C. J. Gibson, in giving the opinion of the court, said : " The defendant is a farmer, but has occasionally done jobs as a carrier. That, however, is immaterial. He applied for the trans- portation of these goods as a matter of business, and consequent- ly on the usual conditions. His agency was not sought in conse- quence of a special confidence reposed in him. There was noth- ing special in the case ; on the contrary, the employment was sought by himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evidence of negligence before the jury ; but independent of that, we are of opinion that he is liable as an insurer" The above case of Gis- bourn v. Hurst is thus commented on by the learned judge: " The best definition of a common carrier, in Us application to the business of this country, is that given by Jeremy,^ which he has taken from Gisbourn v. Hurst, which was the case of one who was thought to be a common carrier only because he had for some small time before brought cheese to London, and took such goods as he could carry back into the country at a reasonable price. Mr. J. Story has cited this case to prove that a common carrier is one who holds himself out as ready to engage in the transporta- tion of goods for hire as a business, and not as a casual occupa- tion, ^ro hac vice? The conclusion of C. J. Gibson was very dif- ferent. He took it that a wagoner, who carries goods for hire, is a common carrier, whether transportation be his principal and direct business or an occasional and incidental employment. It was true that the court (in Gisbourn v. Hurst) went no further than to say, that a wagoner was a common carrier, as to the privi- lege of exemption from distress ; but his contract was held not to be a private undertaking, as the court was at first inclined to consider it, but a public engagement, by reason of his readiness to carry for any one who would employ him, withovit regard to his other avocations, and he would consequently not only be entitled to the privileges, but be subject to the responsibilities, of a common car- ' Jeremy on Carr. 4. > ' Story on Bailm. § 495 ; and see the case stated, ante, § 69. CHAP. IV.] WHO ARE COMMON CAEEIEES. 63 rier ; indeed they are correlative, and there is no reason why he should not enjoy the one without being burdened with the other." In Pennsylvania, said C. J. Gibson, the wagoner was not always such by profession. No inconsiderable part of the transportation was done by the farmers in the interior, who took their produce to Philadelphia, and procured return loads for the retail merchants of the neighboring towns ; and many of them passed by their homes with loads to Pittsburg or Wheeling, the principal towns of embarkation on the Ohio. But no one supposed they were not responsible as common carriers.^ § 71. The rule approved and laid down in Tennessee is, that one who undertakes for reward to convey produce from one place upon the river to another becomes thereby liable as a common carrier.2 The same seems to be the doctrine in South Carolina.^ Where a person in that State employed a boat ^to take his own cotton, and occasionally carried that of his neighbors, it was held, that he was bound as a common carrier by the consent of his captain to take freight, though application for that purpose was usually made to himself. But if the defendant had previously employed liis boat for his own purposes exclusively, it could not be fairly inferred that the agent could do what his employer never had done ; but his employer had in some measure used the boat for the community in which he lived, and from his course of deal- ing with it had held himself out as a common carrier.* .In a very late case in Georgia,® there is an elaborate opinion of the Supreme Court of Georgia, in which the court directly declare, that the rule as laid down in Gordon v. Hutchinson, in Pennsylvania, is opposed to the principles of the Common Law, and that it is wholly inex- pedient. The decision in this case was, that a person who re- ceived and contracted to deliver certain packages of goods in good order and condition, unavoidable accidents only excepted, was not a common carrier, because it did not appear that carrying was his habitual business.^ § 72. But although a person may incur the liability of a com- mon carrier by receiving goods on his own application to carry ' Gordcin v. Hutchinson, uh. sup. * Turney v. Wilson, 7 Yerg. 340 ; Craig v. Childress, Peck, 270. ' M'Clure V. Hammond, 1 Bay, 99 ; Elkins v. Boston B,., 3 Foster, 275. ' M'Clure V. Richardson, 1 Kice, 215. ' Fish V. Chapman, 2 Kelly, 349. » Ibid. 64 LAW OF CAEKIERS. [CHAP. IV. tliem for hire from one place to another, as an occasional business, yet if a person is induced so to undertake by the particular request of his employer, he incurs only the liability of a private carrier ; and this, even when the person has once been a public carrier, and since abandoned the occupation. In Satterlee v. Groat,^ the defendant had been a public common carrier between Schenectady and Albany, previous to 1819, and in that year sold out all his teams but one, which he kept for agricultural purposes on his farm. Although it appeared in evidence that he employed his team in the carrying and forwarding business until 1822 or 1823, yet it did not so appear that subsequently he carried and forward- ed a single load until April, 1824, when, upon an urgent applica- tion of one J. D., he despatched a driver with his team to bring some loads from Albany to Schenectady, with instructions to the driver to bring nothing for any other person ; and if the goods of J. D. were not ready, to come back empty. He brought two loads, and returned for a third under the same instructions ; but the third not being ready, instead of returning empty he applied to the plaintiff for a load, which was delivered to him to be carried to Frankfort, in Herkimer County. Arriving at Schenectady late at night, it was discovered the next morning that one of the boxes had been broken open and a part of the goods stolen. The de- fendant had disavowed all responsibility before it was discovered that any of the goods had been taken, and had declared that the driver had violated his express instructions in receiving them for carriage. The driver was subsequently convicted of stealing them and sent to the State prison therefor. The defendant gave imme- diate notice to the plaintiff of all the facts, and disavowed his re- sponsibility for the loss. The court held, that the defendant stood upon the same footing as though he had never been engaged in the forwarding business, and that he was not responsible for the act of his servant done in the violation of his instructions, and not in the ordinary course of the business in which he was employed. The court put the case of a farmer's sending a servant with a load of wheat to market, and he, without any instructions from his master, applies to a merchant for a return load, and absconds with it, and then asks if the master could be responsible ? Most clearly, they say, he would not be ; for the reason, that it was be- yond the scope of the general authority of the servant, quoad hoc. ' Satterlee v. Groat, 1 Wend. 272. CHAP. IV.] WHO ARE COMMON CAEEIERS. 65 He acted for himself and on his own responsibility, and not for his employer, (a) § 73. The case of Jenkins v. Pickett, in Tennessee,^ was not unlike the above. In this case a common carrier sent his wagon to N. with a load of cotton, the driver of which was a yoiing ne- gro, who had never been allowed to make contracts for hauling, and who had never been trusted before alone with the wagon and team, and who at this time was particularly instructed to bring home a load of salt, and not to. receive goods for carriage ; not- withstanding which he did receive goods for carriage, and the goods were damaged ; it was held, that the carrier was not liable. § 74. There is not an entire coincidence in opinion, it has been said,2 as to whether carmen, truckmen, and other porters, who undertake to carry goods for hire from one part of a town or city to another, as a common employment, are common carriers. (6) It seems to have been held in England, at Nisi Prius, by Lord Abinger, in Brind v. Dale, that a town carman, whose carts ply for hire near the wharves, and who also lets the same out by the hour or day or job, is not a common carrier.^ Story, in refer- ring to this case, seems to be at a loss to perceive what substan- tial difference there is in the case of parties who ply for hire, for the carriage of goods of all parties indifferently, whether the goods are carried from one town to another or from one place to another within the same town ; and that there is any substantial differ- ence whether the parties have fixed termini of their business or not, if they hold themselves out as ready and willing to carry goods for any persons whatsoever, to or from' any places in the same town, or in different towns.* Both this learned author and Kent lay it down, upon the strength of the general authorities, that truckmen, teamsters, and cartmen, who undertake to carry goods as a common employment, from one part of a town or city to another, are subject to the liabilities and duties as common 1 Jenkins v. Pickett, 9 Yerg. 480. = Story on Bailm. note to § 496 (edit. 1846). I » Brind v. Dale, 8 Car. & P. 207. * Story on Bailm. ub. sup. (a) See Haynie v. Baylor, 18 Texas, 498. (6) A city express company engaged in carrying travellers' trunks from the passenger depots of the several railroads is a common carrier. Eichards v. West- cott, 2 Bosw. 589 ; Verner v. Sweitzer, 32 Penn. State, 208. 5 66 LAW OF CAREIERS. [CHAP. IV. carriers.! In Brind v. Dale, it appears that the goods were put into the cart under a modified contract, that the plaintiff should go with them, and take care of them ; and Lord Abinger, in sum- ming up, told the jurj, that if they thought that the goods were delivered under such modified contract, their verdict on that issue should be for the defendant ; and the jury so found. In the case of Robertson v. Kennedy, in the Court of Appeals of Kentucky, ■ in 1834,2 it ^as decided expressly, that the defendant was liable as a common carrier for the loss of a hogshead of sugar which he had undertaken to convey from the bank of the river in the town to the store of the plaintiff in the same town, and, in giving their opinion, the court said, that " draymen, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition ; so also does the driver of a slide (sled) with an ox team ; the mode of transportation is immaterial. In a case where common carriers, from Gainesborough to Manchester, charged and received for the cartage of goods to the consignee's house at Manchester, from a warehouse there, where they usually unloaded, Lord Ken- yon said : " In this case there is one peculiar circumstance, which makes it unnecessary to decide the general question, and that is the charge made by the defendants in one of their bills for the cartage at Manchester ; for that charge the defendants undertook to deliver the goods " ; and the defendants were held liable as common carriers from the warehouse in Manchester to the house of the consignee there .^ § 75. There is a class of persons well known in this countiy, who are called " forwarding merchants," and who usually com- bine in their business the double character of warehousemen and agents for a compensation, to forward goods to their destination. This class of persons is especially employed upon our canals and' railroads,, and in our coasting navigation by steam vessels and other packets.* (a) The law is, that persons so employed, if they ' Story on Bailm. § 496 ; 2 Kent, Com. 598, 599. ' Kobertson v. Kennedy, 2 Dana, 430. ' Hyde v. Trent Nav. Co., 5 T. R. 389. * 2 Kent, Com. 591, 592 ; Story on Bailm. § 444. See post, § 134. (a) If it is the general custom of a carrier to forward by sailing vessels all goods destined beyond the end of his line, he is not liable for not forwarding a particular article by a steam vessel, unless the direction to do so be clear and un- ambiguous. Simkins v. Norwich Steamboat, 11 Cush. 102. CHAP. IV.] WHO ARE COMMON CAKKIEES. 67 have no concern in the vehicle by wliich the goods are sent, and have no interest in the freight, are not liable as common carriers, but are of course liable, like warehousemen and common agents, that is, for ordinary diligence, and for that only.^ (a) They are responsible only for want of good faith and reasonable and ordi- nary diligence ; but one of their first duties, as consignees for transmission, undoubtedly is, to obey the instructions of the con- signor, either express or fairly implied ; and when they undertake to vary from the instructions, from whatever motive, and a loss is thereby occasioned, they are clearly liable to the owners of the goods.2 (V) Sometimes a person is both a common carrier and a forwarding merchant, and receives goods into his warehouse to be forwarded in obedience to the future orders of the owner ; and if, in such case, the goods are lost by fire before such orders are re- ceived, or the goods sent forward, he is not chargeable as common carrier, but only as warehouseman, (c) His duty as carrier ends also when the goods have arrived at the place of their fixed desti- nation, and are deposited in the carrier's warehouse, when his duty as warehouseman again commences.^ But if the deposit in the warehouse of the carrier be at some intermediate place in the course of his route ; or if, after the arrival at the place of destina- ' .Piatt V. Hibbai-d, 7 Cow. 497; Streeter v. Horlock, 1 Bing. 34 ; Brown v. Denison, 2 Wend. 593 ; Hyde v. Trent Nav. Co., 5 T. R. 389 ; Story on Bailm. § 444 ; Ackley v. Kellogg, 8 Cow. 223 ; Sage v. Gittner, 11 Barb. 120 ; Cowles v. Pointer, 26 Missis. 253. Wharfingers and warehousemen are not liable for casual fire. Sidaways v. Todd, 2 Stark. 400. And see, iov distinction between the lia- bility of a carrier without reward and one for reward, Fay v. Steamer New World, 1 Calif. 348 ; Teall v. Sears, 9- Barb. 317 ; Goold v. Chapin; 10 Barb. 612 ; Cox V. O'Kiley, 4 Port. Ind. 368 ; Moses v. Boston E., 4 Foster, 71. * Forsythe u. Walker, 9 Barr, 148. ' Story on Bailm. § 449 ; Piatt v. Hibbard, vb. sup. ; Koskell v. Waterhouse, , 2 Stark. 461 ; Roberts v. Turner, 12 Johns. 232 ; Webb, in re, 8 Taunt. 443. (a) Maybin v. S. Car. R., 8 Rich. 240 ; Denny ;;. New York R., 13 Gray, 487. The term " forward " may be used to include the carriage of goods ; and although the contract uses the word " forward " the contractor may be held as a carrier. Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 115; Read v. Spaulding, 5 Bosw. 395 ; American Exp. Co. v. Pinckney, 29 111. 392; Simmons v. Law, 8 Bosw. 213. (V) Where goods were directed to be sent by a particular line of boats, and this line refused to take them, and the forwarder thereupon in good faith sent the goods by another line and they were lost, held that the forwarder was liable. Johnson v. New York Central R., 33 N. Y. 610, overruling S. C. 31 Barb. 196. (c) See post, § 134. 68 LAW OF CAREIEES. [CHAP. IV. tion, he is still under obligation to deliver the goods to the owner ; and before such delivery he has put them into his own warehouse, where they are consumed by fire, he will be liable for the loss, his duty as carrier not being ended.' (a) § 76. That wagoners and teamsters, who, as a public and com- mon employment for hire, transport goods and merchandise from one town to another, are responsible as common carriers, has never been questioned.^ This mode of transportation has for a long pe- riod been extensively followed in Pennsylvania, and in that State it has ever been considered that the persons thus engaged in trans- portation are common carriers.^ It is, however, clear, that if peo- ple be unwary enough to send parcels by the driver of a wagon for a hire paid to him, which is never to find its way into the pocket of the owner of the wagon, the owner is not liable in case the par- cel is lost.* If money should be intrusted to a common wagoner, not authorized to receive it, by the ordinary business of his em- ployers and owners, at their risk, they cannot be considered as liable for the loss thereof as common carriers, any more, it has been affirmed, than they would be for an injury done by his neg- ligence to a passenger whom he had casually taken up on the road.* § 77. Next, as to coach-masters, or proprietors of stage-coaches, as common carriers. Persons who come within this description are liable as common carriers for the carriage of goods, provided they usually carry them for hire, and so hold themselves out to carry for all persons indifierently.® In Dwight v. Brewster, it was ' Forward v. Pittard, 1 T. R. 27 ; Hyde «. Trent. Nav. Co., 5 T. R. 389 ; and see Thomas v. Boston R., 10 Met. 472, and ante, § 69, n. 2. ' 2 Kent, Com. 598, 599 ; Story on Bailm. § 496 ; Gisbourn v. Hurst, anle, § 70 ; Hyde v. Trent. Nav. Co., lib. sup. ; Campbell v. Morse, Harper, 468 ; Mc- Henry v. Railroad Co., 4 Barring. Del. 448 ; Powers v. Davenport, ante, § 70. ' Lecky v. M'Dermott, 8 S. & R. 500 ; Gordon v. Hutchinson, ante, § 70. * Per Garrow, J., in summing up to the jury, in Butler «. Basing, 2 Car. & P. 613. ' Per Story, J., in Citizens' Bank v. Nantucket Steamboat Co., 2 Story7 C. C. 32. ° Jeremy on Carr. 11; Middleton vt Fowler, 1 Salk. 282; Story on Bailm. § 500; 2 Bac. Abr. Carriers; Allen v. Sewall, 2 Wend. 327, and 6 lb. 335; Bean t). Sturtevant, 8 N. H. 146 ; Jones v. Voorhees, 10 Ohio, 145 ; Merwin v. Butler, ' 17 Conn. 138. (a) See post, § 134, note. CHAP. IV.] WHO ABE COMMON CAEEIERS. 69 expressly held, that an established practice of conveying for hire in a stage-coach parcels not belonging to passengers renders the proprietors liable as common carriers ; (a) for, although the prin- cipal business is to carry passengers, there is no reason why the proprietors should not be common carriers of merchandise.^ But the proprietors are not of course responsible as common carriers ; they are so only when they have been in the practice of receiving and carrying for hire parcels or packages for persons not passen- gers in their coaches.^ The authorities generally leave no doubt, that where a proprietor of a coach holds himself out to the public as only engaging for the personal conveyance of passengers ; and refuses to allow his coach to be a conveyance for goods in general, the courts would consider him not a common carrier. If it has been the practice of a driver of one of their coaches to carry arti- cles for hire for his own particular advantage, that fact alone will not render them liable.^ But if, on the other hand, the driver is to be paid a certain sum of money per month, and the compensa- tion which shall be paid for carrying small packages, that will render the proprietors liable in case of loss ; unless the owner of the packages knows the arrangement, and contracts with the driver solely on his own responsibility.* The driver himself of a stage- coach generally employed by the proprietors, and who has been in the habit of carrying parcels of money for a small compensation, which was uniform, whatever might be the amount, contained in any one package, is not subject, it has been held, to the responsi- bility of a common carrier, but only to that of ordinary negligence, or, in other words, to the responsibility only of a private carrier.^ § 78. On the same principle that wagoners and the proprietors of stage-coaches are liable as common carriers, when they are ac- customed to carry goods for all persons indifferently, the proprie- tors of railroad cars, which run between different places, and which are used for the purpose of so carrying, are liable in like ' Dwight V. Brewster, 1 Pick. 50 ; McHenry v. Railroad Co., 4 Barring. Del. 448. ' Beckman v. Shouse, 5 Kawle, 179. » Bean v. Sturtevant, 8 N. H. 146 ; Butler w. Basing, 2 Car. & P. 614 ; Blanch- ard V. Isaacs, 3 Barb. 388 ; and ante, § 76. * Bean, &e., ub. sup. ' Shelden v. Kobinson, 7 N. H. 157; and see ante, Chap. III. (a) Powell V. Mills, 30 Missis. 231. 70 LAW OF CARRIERS. [CHAP. IV. manner, and the like reasoning applies.^ (a) In the case of Thomas v. Boston and Providence Railroad Corporation, Hubbard, J., in delivering the opinion of the court, observed in relation to the importance of railroad companies as common carriers as fol- lows : " The introduction of railroads into the State has been fol- lowed by their construction over the great lines of travel of pas- sengers and transportation of merchandise; and the proprietors of these novel and important modes of travel and transportation, which have received so much public favor, have become the car- riers of great amounts of merchandise. They advertise for freight ; they make known the terms of the carriage ; they pro- vide suitable vehicles, and select convenient places for receiving and delivering goods ; and, as a legal consequence of such acts, they have become common carriers of merchandise, and are sub- ject to the provisions of the Common Law which are applicable to carriers." ^ (6) A railroad company that transports cattle and ' Parker v. Great Western R., 7 Man. & G. 253 ; Muscbamp v. Lancaster R., 8 M. & W. 421 ; Palmer v. Grand Junction R., 4 M. & W. 749 ; Pickford v. Grand Junction R., 12 M. & W. 766 ; Eagle v. White, 6 Whart. 505 ; Weed v. Saratoga R., 19 Wend. 534; Camden R. v. Burke, 13 lb. 611 ; Story on Bailm. § 500; Nashville R. v. Messines, 1 Sneed, 220; Dill v. S. Carolina R., 7 Rich. 158. See post, § 540. " Thomas v. Boston R., 10 Met. 472. (a) Chicago R. v. Thompson, 19 111. 578. See Oxlade v. Northeastern R., 9 C. B. N. 8 . 896. Receivers running a railroad under an appointment of a Court of Chancery are liable as common carriers. Blumenthal v. Brainerd, 38 Vt. 402. Trustees of mortgage bonds of a railroad, who have the possession and control, and actually operate the road, are liable as common carriers. Sprague v. Smith, 29 Vt. 421. If one railroad transports a car for another railroad for hire, it is liable as a common carrier, although the car is on its own trucks. New Jer- sey R. V. Pennsylvania R., 3 Dutch. 100. See, also, Mallory v. Tioga R., 39 Barb. 488. The owner of a car on a railroad belonging to the State is liable as a cai^ rier for an injury sustained by a passenger, although the motive power of the road is furnished by the State, and though the accident happened through the negligence of the agents of the State. Peters v. Ryland, 20 Penn. State, 497. (It) A railroad which is incorporated by the laws of one State cannot ex- empt itself from liability for the loss of goods delivered to it to be carried over part of its road to the State line, by previously leasing that part of its road to a corporation established by the laws of another State and connecting with it at the State line. Langley v. Boston R., 10 Gray, 103. The corporation to whom the road is leased may also be sued in such a case, although it is incorporated by the laws of another State, and it cannot dispute its liability on the ground that the lease is void. McCluer v. Manchester R., 13 Gray, 124. CHAP. IV.] CARRIERS BY WATER. . 71 live stock for hire, for such persons as choose to employ them, thereby assume and take upon themselves the relation of common carriers, and with the relation the duties and obligations which grow out of it ; and they are none the less common carriers from the fact, that the transportation of cattle is not their principal business or employment.^ (a) § 79. Though no substantial difference, says Sir William Jones, in speaking of common carriers, is assignable between carriage by land and carriage by water, or, in other words, between a viagon and a barge, yet it soon became necessary for the courts to de- clare, as they did in the reign of James I., that a common hoyman is responsible for goods committed to his custody, even if he be robbed of them ; and that, therefore, the law which had been ad- vanced concerning a land carrier may be applied to a barge-mas- ter or boatman? A later English writer on the law of carriers says that hoymen, by the custom of the realm, are bound to keep and deliver goods safely, for their hire is due by custom,^ and that an action lies equally against a common bargeman, without any special agreement, as against a carrier upon land.* In the case of the proprietors of the Trent Navigation Company v. Wood, it was declared by Lord Mansfield and the other judges of the King's Bench, that there is no distinction between a land and a water carrier.^ § 80. The rule, as thus laid down in England, in respect to carriers by water, has been recognized and settled in this coun- ' Kimball v. Rutland K, 26 Vt. 247. See post, §§ 214, 394. "■Jones on Bailm. 107. He cites Rich v. Kneeland, Cro. Jac. 330, Hob. 30; " The first case of this kind," said Lord Holt, " to be found in the books," 12 Mod. 410. It was a case against a common bargeman, for loss of property. Error was brought and assigned, that the action lay not against a common bargeman, with- out special promise ; but all the justices and barons held, that case as well lies, as against a common carrier by land. ' Jeremy on Carr. 7; 1 Roll. Abr. C. 2, 15. * Jeremy on Carr. 9. ^ Trent Nav. Co. v. Wood, 3 Esp. 127, and 4 Doug. 287, cited in Jeremy on Carr. 52 ; 2 Kent, Com. 600 ; Story on Bailm. § 489. (a) If a railroad company for one rate of freight offers to carry cattle as com- mon carriers, and for a lower rate offers to furnish cars and to let the owner of the cattle take charge of them, the company is not liable as a common carrier if the owner ships the cattle at the lower rate of freight. Kimball v. Rutland R., 26 Vt. 247. 72 LAW OF CAKEIEES. [CHAP. IV. try.i (a) In New York, says Kent, the English Common Law on the subject of the general responsibility of common carriers has been fully, explicitly, and repeatedly recognized in its full extent ; and equally in respect to carriers by land and carriers by water? It was understood and declared in Elliott v. Rossell, upon a full consideration of the subject, that a water carrier warranted the safe delivery of goods in all cases but the excepted cases of the act of God and public enemies.^ The case of Aymar v. Astor,* it is true, would seem to unsettle the Common-Law rule as to car- riers by water ; but, if there was not some mistake in the report of that case, it was completely overruled by the case of Allen v. Sewall.^ Although this last case was reversed by the Court of Errors, it was upon a different ground, and the general doctrine as to the liability of common carriers by water was not disturbed;^ and were it so, it would be against prior and subsequent decisions in the same State. In Pennsylvania, although the English law as to the liability of common carriers by land is admitted, yet in Gordon v. Little,^ the law was considered with respect to carriers by inland navigation to be unsettled so far as it regarded its appli- cation in that State. The carrier on inland waters, it was held in that case, would be clearly liable for ordinary negligence ; but ' Story on Bailm.§ 508. » 2 Kent, Com. 608. ' Elliott V. Kossell, 10 Johns. 1. So, also, held in Colt v. M'Mechen, 6 lb. 160; Schiefflin v. Harvey, lb. 170; Kemp v. Coughtry, 11 lb. 107; Allen v. Sewall, 2 "Wend. 327; M' Arthur v. Sears, 21 lb. 190. That the rule has been recog- nized in other States, see Williams v. Grant, 1 Conn. 487; Clark v. Richards, lb. 54; Kichards v. Gilbert, 5 Day, 415 ; Bell v. Beed, 4 Binn. 127; Hastings v. Pepper, 11 Pick. 41; Dwight v. Brewster, 1 lb. 50; M'Clure v. Hammond, 1 Bay, 99 ; Miles v. Johnson, 1 M'Cord, 157 ; Cohen v. Hume, lb. 439 ; Murphy u. Stanton, 3 Munf. 239 ; Moses v. Norris, 4 N. H. 304 ; Craig v. Childress, Peck, 270; Gordon v. Buchanan, 5 Yerg. 71 ; Turney v. Wilson, 7 lb. 340; Faulkner V. Wright, 1 Kice, 107; Williams v. Branson, 1 Murph. 417; Jones v. Pitcher, 3 Stew. & P. 135. * Aymar v. Astor, 6 Cow. 266. ' Allen V. Sewall, 2 Wend. 327. ■' " 6 Wend. 335. ' Gordon v. Little, 8 S. &. K. 533. (a) If persons build or procure a flatboat, and hold themselves as ready to carry cotton for all who wish to send it, they are common carriers, although they intend to break up the boat and sell it for lumber at the end of the voyage. Steele v. liJcTyler, 31 Ala. 667. CHAP. IV.] CAEBIERS BY WATER. 73 beyond that point it was competent for the common carrier to prove a usage different from the Common Law. (a) It was, how- ever, adjudged in Harrington v. M'Shane,^ that under the usage of trade on the Western waters (the river Ohio) the owners of steamboats, carrying goods on freight, were common carriers, and liable as such for all losses except those occasioned by the act of God, or the public enemy. Indeed, there is no doubt that the doctrine of the English Common Law, which declares, that per- sons carrying goods for hire, by water, are common carriers, and that they are liable for all losses happening otherwise than from the causes just mentioned, prevails generally in this country, as a part of the Common Law of the land.^ The reasons which origi- nated the responsibility of common carriers, the Supreme Court of Connecticut consider, apply with peculiar force-, as it respects carriers by water ; upon which element a spirit of dangerous ad- venture has grown up, which disregards the safety, not of proper- ty merely, but of human lives.^ No custom among the freighters and owners of boats on a navigable river, it has been held in North Carolina, will excuse them from the operation of the law govern- ing common carriers.* § 81. Therefore, canal boatmen, like other boatmen,^ carrying for the public for hire, are common carriers, and responsible as such.^ A captain of a canal-boat navigating Lake Champlain was held in Vermont to be liable as a common carrier.^ (6) It was ' Harrington v. M'Shane, 2 Watts, 443. ' So considered by Kent, 2 Kent, Com. 609 ; and by Story on Bailm. § 497. ' Crosby v. Fiteh, 12 Conn. 419. * Adam v. Hay, 3 Murph. 149 ; Spivy v. Farmer, 1 lb. 539. The owners of all river craft in Canada are responsible for losses occasioned by their own want of care or experience, and by that of their servants. Borne v. Perrault, Stuart, Lower Canada, 591, note. ' Harrington v. Lyles, 2 Nott & M'C. 88 ; Williams v. Branson, 1 Murph. 417 ; Smyrl v. Niolan, 2 Bailey, 421. ' Humphreys v. Reed, 6 Whart. 435 ; De Mott v. Larraway, 14 Wend. 225 ; Parsons v. Hardy, lb. 215 ; Bowman v. Teall, 23 Wend. 306. ' Spencer v. Daggett, 3 Vt. 92. (a) This case is virtually overruled so far as it allows evidence of usage to con- tradict a rule of law. Coxe v. Heisley, 19 Penn. State, 243. Evidence of cus- tom was held competent in Steele v. McTyler, 31 Ala. 667. (J) See Beckwith v. Frisbie, 32 Vt. 559, where the owners of a canal-boat were under the circumstances of the case held to be private carriers. A com- pany maintaining a canal for the use of the public on payment of tolls are bound to take only reasonable care that the canal may be navigated without danger. 74 LAW OF CARRIERS. [CHAP. IV. held, that a boatman on the New York canals employed in the transportation of property, inasmuch as he was a common carrier, had no right to sell any article sent by him to market, without express authority from the owner ; and that, if an article so sent by the boatman be purchased from him, the owner may recover it from the purchaser.^ § 82. So also are ferrymen, if they hold themselTCS out to the world as common carriers, which they usually do;^ (a) although whether the owners of a ferry are bound either by express con- tract, or by a contract implied from usage, to receive carriages with their contents on board, and land them at the end of the transit across the river, is a question for the jury to determine.^ The owners of a private ferry may so use it (although on a road not opened by public authority or repaired by public l^bor) as to subject themselves to the liability of common carriers ; and they do so, if they notoriously, undertake for hire to convey across ' Arnold v. Halenbrake, 5 Wend. 33. " Story on Bailm. § 496 ; 2 Kent, Com. 599 ; Smith v. Seward, 3 Barr, 342 ; Pomeroy v. Donaldson, 5 Misso. 30 ; Cohen v. Hume, 1 M'Cord, 444 ; Gourdine «. Cook, 1 Nott & M'C. 19; Gardner w. Greene, 8 Ala. 96 ; Rutherford ». M'Gowen, 1 Nott & M'C. 17 ; Trent v. Cartersville Bridge, 11 Leigh, 521 ; Spivy V. Farmer, 1 Murph. 339 ; Fisher v. Clisbee, 12 111. 344. And see Law Rep. for May, 1851, p. 32, tit. " Action " ; White v. Winnissimmet Co., 7 Cush. 155 ; Willoughby v. Horridge, 12 C. B. 742, 16 Eng. L. & Eq. 437. See post, 165. ' Walker ». Jackson, 10 M. & W. 161. It was held in this cjise, that to rebut evidence of usage to take on board and land the carriages of passengers, a notice stuck up at the door of entrance of foot passengers, but not visible to those who came with carriages, nor shown to have been known to the plaintiff, — that the defendant did not undertake to load or discharge horses or carriages, and would not be responsible for loss or damage done thereto, — was not admissible. They are not common carriers. Exchange Ins. Co. v. Delaware Canal Co., 10 Bosw. 180. (a) Albright v. Penn, 14 Texas, 290 ; Powell i>. Mills, 37 Missis. 691 ; Sanders V. Young, 1 Head, 219; Hall v. Renfro, 3 Met. Ky. 51 ; Whitmore v. Bowman, 4 Greene, Iowa, 148. If a ferryman permits a person to drive his own carriage aboard or off the boat, he constitutes him quoad hoc his agent. May v. Hanson, 5 Calif. 360. If a ferryman leases his boat to another ferry, he is not liable for an accident occurring while the boat is so used ; nor is he liable for such an accident, in an action on the case for not maintaining a ferry. Claypool i>. McAllister, 20 111. 504. A ferryman has the absolute right to direct what position each person shall take on the boat, without reference, to priority of arrival. Claypool v. McAllister, 20 111. 504. CHAP. IV.] STEAMBOATS. 75 the river all persons indifferently, with their carriages and goods.^ They are bound to prepare proper means for the embarkation and landing for the animals they carry, and although a horse be under the control and management of the owner, they are liable for injury to the animal in consequence of their culpable negli- gence in allowing an improper slip to be used.^ For articles not usually carried across the ferry, and to carry which is not within the ordinary employment of the owners of the' ferry, the owners would nqj be liable for the loss of them ; and more especially if the owners had no knowledge thereof, and the compensation was only for the personal emolument of the boatman.^ But it by no means follows, that because the State, tor the security of travel- lers, and as the price of the monopoly granted, exacts from the ferryman a bond with surety, and stipulates for the rates of fer- riage, that the Common-Law liability, which attaches to the car- riage of goods for hire, does not arise ; and the bond and surety are an additional security afforded by the State, because of the public nature of the ferryman's employment, (a) Nor does the fact that the State regulates the rate of toll at all affect the ques- tion.* In England, a number of statutes have been passed, regu- lating the prices of the carriage of goods by common carriers,^ and it has never been supposed that the passage of these acts varied their liability as common carriers, which arises from the peculiar nature of their employment. § 83. The most common and the most important description of carriers by water at the present day, in this country, are the own- ers and masters of steamboats, which boats are, in almost all cases, engaged in the transportation of goods, as well as of persons, for hire, and are hence answerable for all goods generally shipped on board, unless for losses happening by the act of God or the public ■ Littlejohn v. Jones, 2 M'MuUan, 365. ' Willoughby V. Horridge, 12 C. B. 742, 16 Eng. L. & Eq. 437. ' See opinion of Story, J., in Citizens' Bank v. Nantucket Steamboat Co., 2 Story, C. C. 33 ; and ante, §§ 76, 77 ; and see post, § 84. ' Babcook v. Beene, 3 Ala. 392. ' As may be seen enumerated in 1 Bac.. Abr. 557. In Texas, a ferryman, who has not given a bond in conformity to the statute, is a common carrier. Johnson v. Erskine, 9 Texas, 1. (a) Miller v. Pendleton, 8 Gray, 547. This case also decides that a ferryman cannot give in evidence a custom on his and other similar ferries to put up a chain at the end of the boat, only when so requested. 76 LAW OF CARRIERS. [CHAP. IV. enemy.i So it has been considered in England,^ and so expressly held in this country in the States of New York,^ Pennsylvania,* Connecticut,^ South Carolina,® Alabama,'^ Ohio,^ Illinois,^ and Tennessee.^" § 84. But a steamboat may be employed solely in the transpor- tation of passengers ; then the liability is incurred only to the extent of the common rights, duties, and obligations of carrier vessels of passengers ; or it may be solely employed in the trans- portation of goods and merchandise, and then, like otho;- carriers of the like character, the owners are bound to the common duties, obligations, and liabilities of common carriers. Or, the employ- ment may be limited to the mere carriage of particular kinds of property and goods ; and when this is so, and the fact is known ' Story on Bailm. § 496 ; 2 Kent, Com. 699 ; Jencks v. Coleman, 2 Snmn. 221 ; Patton v. M'Grath, Dudley, S. C. 159, a strong case of the responsibility of the owners of steamboats, as common carriers. It was held, by the Supreme Court of Florida, that where the declaration alleges that the defendant followed the occupation of master or owner of a steamboat plying on a navigable river, this is a sufficient averment to fix the character which the Common Law attaches to masters and owners of ships, steamboats, &c., so as to charge j^he defendant with a breach of the duty which alone results from that character, without an ex- press averment, that defendant was a " conunon carrier." Bennett v. Filyaw, 1 Fla. 403. ' Siordet v. Hall, 4 Bing. 607 ; Gatliffe v. Bourne, 5 Scott, 667, 4 Bing. N. C. 314 ; Muddle v. Stride, 9 Car. & P. 380. ' Allen V. Sewall, 2 Wend. 327 ; Bank of Orange v. Brown, 3 lb. 158 ; and that the owners of steamboats, railroads, &c., are held to be conmion carriers in New York, HoUister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, lb. 251, and the cases therein referred to by Justices Bronson and Cowen ; Powell v. Myers, 26 Wend. 591; M'Arthur w. Sears, 21 lb. 190. " Harrington v. M'Shane, 2 Watts, 443 ; Warden v. Greer, 6 lb. 424. ' Hale V. New Jersey Steam Nav. Co., 15 Conn. 539. " Steamboat Co. o. Bason, Harper, 262. The owners of a steamboat employed in carrying goods for hire between Charleston and Columbia -were held to be common carriers. Swindler v. HilUard, 2 Rich. 286 ; Faulkner v. Wright, 1 Kice, 107. ' Jones V. Pitcher, 3 Stew. & P. 136 ; Sprowl v. Kellar, 4 lb. 382. In the former case, the Supreme Court of Alabama held, that a charge in a declaration against joint owners of a steamboat, " that the defendants before and at the time of shipment were the owners and proprietors of the boat, and copartners in freighting ; and which boat had been usually employed in conveying and trans- porting cotton, and other merchandise for hire," &c., was a sufficient averment of the character pf the joint owners as common carriers, to authorize a recovery. ' Bowman u. Hilton, 11 Ohio, 303. ° Dunseth v. Wade, 2 Scam. 289. " Porterfield v. Humphrey, 8 Humph. 497. CHAP. IV.] STEAMBOATS. 77 and avowed, the owners will not be liable as common carriers for any other goods or property intrusted to their agents without their consent.^ § 85. The master of a steamboat, like a wagoner, or the driver of a stage-coach, carrying parcels for hire on his own account^ cannot of course bind the owners as common carriers.^ § 86. Whenever steamboats are employed out of the course of their particular employment, as, for ^instance, in towing a freight vessel, they are bound to no more than ordinary care and skill in management ; they are not then quo ad hoc common carriers, and the law of common carriers is not applicable to them.* Where a steamboat company, whose regular employment was to transport passengers and merchandise, contracted for hire to ta,ke a vessel through the ice out of the harbor of Baltimore, and there was no express agreement that it should be responsible for 9,11 losses or injuries which might arise should the vessel not be carried through in safety, it was held, that the company was only bound to use reasonable efforts, care, and diligence, and was not bound to the extent of common carriers.^ So far, indeed, from being common carriers, it is questionable whether they are carriers or bailees of any description, for the property towed is not delivered to them, nor placed within their exclusive control ; but remains in the possession, and for most purposes in the exclusive care, of the owners or their servants.^ It was held, in Alexander v. Greene, that the owners of a steamboat undertaking for hire to tow a canal- boat and her cargo on the Hudson River, while the master and hands of the canal-boat remain on board, and in possession and charge of the property, are not common carriers, but ordinary bailees for hire ; and as it was stipulated that the canal-boat was to be towed at the risk of her master, the owners of the steamboat were not responsible even for the want of ordinary care and skill.'' (a) ' Citizens' Bank v. Nantucket Steamboat Co., 2 Story C. C. 16. ' See ante, §§ 76, 77, 82. " Citizens' Bank v. Nantucket Steamboat Co., 2 Story C. C. 49 ; Allen v. Sew- all, 2 Wend. 327. * Caton V. Eumuey, 13 Wend. 387. " Penn. Nav. Co. v. Dandridge, 8 Gill & J. 109. " Per Bronson, J., in Wells v. Steam Navigation Co., 2 Comst. 204. ' Alexander v. Greene, 3 Hill, 1. Though common carriers cannot, in New (a) See White v. Steamtug Mary Ann, 6 Calif. 462; Walston v. Myers, 5 Jones, 174; Ashmore v. Penn. Steam Towing Co., 4 Dutch. 180; Merrick v. Brainard, 38 Barb. 574 ; Hays v. Paul, 51 Penn. State, 134. 78 LAW OF CARRIERS. [CHAP. IV. § 87. The " subtlety of the human mind," observes Sir William Jones, " in finding distinctions, has no bounds ; and it was imag- ined," he says, " by some, that whatever might be the obligation of a &arg-e-master, there was no reason to be equally rigorous in regard to the master of a ship ; who, if he carry goods for a profit, must indubitably answer for ordinary neglect of himself or his mariners, who ought not, they said, to be chargeable for the vio- lence of robbers." ^ It was, however, otherwise decided, he in- forms us, in the great case of Morse v. Slue.^ In this case, which was decided upon great consideration, it was held by the Court of King's Bench, in the reign of Charles II., that the master of a ves- sel employed to carry goods beyond sea, in consideration of the freight, was answerable as a common carrier. The circumstances of the case were, that eleven persons came on board of the ship in the river, under pretence of impressing seamen, and forcibly took the chests which the defendant had engaged to carry ; and though the master was entirely blameless, yet Sir Matthew Hale and his brethren, having heard both civilians and common lawyers, and among them Mr. Holt for the plaintifi", determined on the princi- ples which have been advanced in respect to the responsibility of common carriers, that the bailor ought to recover. This case, says Sir William Jones, was frequently afterwards mentioned by Lord Holt, who said, that the declaration was drawn by one of the greatest pleaders in England.^ It was subsequently declared by Lord Hardwicke, that the action lay equally against masters and York, contract for a restricted responsibility (see on this subject, post, Chap. VII.), yet other bailees for hire may so contract, and leave the whole risk, in cases free from gross negligence, on the owner of the property. The owners of the steam- boat, in this case, in the particular business in which they undertook to engage, were only ordinary bailees for hire, and therefore might contract for the restricted responsibility for which they did contract. In the case of Wells v. Tucker, in the New York Court of Appeals, it was held, that the owners of a steamboat em- ployed in the business of towing boats for hire were not common carriers. Wells V. Steam Navigation Co., 2 Comst. 204. By Bronson, J., in delivering the judg- ment of the court in this case : " It is true that the judgment, in Alexander v. Greene, was reversed by the Court of Errors (7 Hill, 533). But what particular point or principle of law was dedded by the court, or what a majority of the members thought upon any particular question of law, no one can tell. It ap- pears by the reporter's head-note that he could not tell." See ante, § 59. ' Jones onBailm. 109. » Morse v. Slue, 1 Vent. 190, 2S8j T. Raym. 220. ' Jones ub. sup. who refers to Coggs v. Bernard, 2 Ld. Raym. 920. CHAP. IV.] VESSELS ON FOREIGN VOYAGE. 79 owners of vessels ; ^ and in Goff w. Clinkard,^ the doctrine in the above cases was recognized. In the case of the Proprietors of the Trent Navigation Company v. Wood,^ the action was bronglit to recover damages of the defendants for goods undertaken by the plaintiffs to be carried from Hull to Gainsborough, the vessel being sunk by striking against an anchor in the river, to which no buoy had been iixed to give notice of the danger ; and it was held, "that there being no case which made any distinction be- tween a land and a water carrier, and this injury arising from the negligence of a private man, if this sort of negligence were to ex- cuse the carrier, wherever he finds an accident has happened to goods, from the misconduct" of a third person, he would give him- self no further trouble about the recovery of them ;_ and although this might be a sea voyage, and it was usual to insure, the merchant is not bound to insure, nor does that vary the obligation." * § 88. The doctrine of the English Common Law, which renders persons transporting goods for hire by water, for all persons indif- ferently, liable as common carriers, applies as well to external as to internal navigation, is the established doctrine in this country.^ In Massachusetts it has been expressly declared, that a carrier by water by inland navigation is not only a common carrier, but -one also who transports goods from port to port coastwise, or to or from foreign countries.^ In Crosby v. Pitch, in Connecticut,'^ the court says, " that the defendants, as owners of this vessel (a sloop running between New York and Norwich, in Connecticut), were common carriers, and, as such, liable for all the responsibili- ties resulting from that employment, is well settled in the Ameri- can courts ; and in England it was never disputed as a principle of Mercantile Law." The doctrine has been extensively consid- ered in New York, and it is in that State clearly understood to be, that masters and owners of vessels, who undertake to carry goods for hire, are liable as common carriers, whether the trans- ' Boucher v. Lawson, Gas. temp. H^rdw. 183. ^ Goff V. Clinkard, cited in 1 Wils. 282. ' Trent Nav. Co. v. Wood, 3 Esp. 127. . * See also Dale v. Hall, 1 Wils. 282. • 2 Kent, Com. 599, 600, 606, 608 ; Story on Bailm. §§ 497, 501. And see ante, authorities referred to in §§ 79, 80 ; Barber v. Brace, 3 Conn. 9 ; Williams v. Grant, 1 lb. 487 ; Crosby v. Fitch, 12 lb. 410. ° Per Shaw, C. J., in Hastings v. Pepper, 11 Pick. 41. ' Crosby v. Fitch, vb. supi 80 LAW OF CAEEIERS. [CHAP. IV. portation be from port to port within the State, or beyond sea, at home or abroad, and they are answerable as well by the Marine Law as the Common Law, for all loss not arising from inevitable accident, or such as could not be foreseen or prevented ; except so far as the exception is extended to perils of the sea by the spe- cial terms of the contract, contained in the charter-party or bill of lading.i There is, indeed, no doubt that such is the prevailing doctrine in the United States, as part of the Common Law of the land ; the slightest neglect, levissima culpa, renders the master of a vessel liable.^ § 89. But it is necessary that a ship, like a ferry-boat,^ or steam- boat,* should have and retain her character and employment as a common carrier ; and when it is said that the owners and masters of ships are treated as common carriers, it is to be understood of such ships as are employed for the transportation of merchandise for all persons indifferently.^ (a) Should the owner of a ship em- ploy it on his own account, and, for tlie special accommodation of a particular individual, take goods on board for freight (not re- ceiving them for all persons indifferently), he does not come with- in the definition of a common carrier, he not holding himself out as engaged in a public employment.^ (6) If the whole ship is chartered by the owner to a single person, for a particular voyage out and home, for a specified freight, under a charter-party, the charter-party will be held to regulate the rights, duties, and re- sponsibilities of the partieSj and supersede those of the ship-owner, as a common carrier.'^ ' Elliott V. Kossell, 10 Johns. 1 ; Kemp v. Coughtry, 11 lb. 107 ; M' Arthur ». Sears, 21 Wend. 190. " 2 Kent, Com. 609. With respect to the owners, although they do not in truth enter into the undertaking, they are yet liable, as well in respect of the freight received, as also for the appointing of the master, whom they may elect and con- trol ; but when charged in point of contract, as employers, they must all be joined. Boson v. Sandford, 2 Salk. 439, 3 Lev. 258, Garth. 62. ' See anle, § 82. , • See ante, §§ 84, 85. ' Story on Bailm. § 501 ; Abbott on Shipp. Pt. 3, ch. 2. But see ante, modern definition of common carriers, § 70. • Story on Bailm. § 501. ' 2 Kent, Com. 600 ; Story on Agency, §§ 452 - 461 ; Ellis v. Turner, 1 T. B. 531, cited in Jeremy on Carr. 48; Cavenagh u. Such, 1 Price, 328 ; Williams v. Cranston, 2 Stark. 82 ; Hyde v. Trent Nav. Co., 5 T. R.'397, cited in Jeremy on Carr. 64 ; Boyce v. Chapman, 2 Bing. N. C. 222. (a) Gage u. Tirrell, 9 Alien, 299. (h) Lamb v. Parkman, 1 Sprague, 343. CHAP. IV.] VESSELS ON FOREIGN VOYAGE. 81 § 90. Carriers by water being liable at Common Law to the same extent as carriers by land, and as their responsibility was more extensive and their risk greater, from the facilities for the commission of acts of fraud and violence upon the water, it was deemed in England a proper case for legislative interference to a limited extent. The statutes of 7 Geo. II. ch. 15, and 26 Geo. III. ch. 159, exempted owners of vessels from responsibility as common carriers for losses by fire ; and provided, further, that the owner should not be liable for the loss of gold, silvei-j dia- monds, watches, jewels, or precious stones, by robbery or embez- zlement, unless the shipper inserted in the bill of lading, or other- wise declared in writing to the master or owner of the vessel the nature, quality, and value of the articles ; nor should he be liable for embezzlement, or loss or damage to the goods arising from any act or neglect, without his fault or privity, beyond- the value of the ship and freight ; nor should part owners, in those cases, be liable beyond their respective shares in the ship and freight.^ The statute 63 Geo. III. further limited the responsibility of ship-own- ers for damage done, without their fault, to other vessels or their cargoes, to the value of the ship doing the damage at the time of the accident.^ In Massachusetts, the responsibility of owners was, by a statute passed in 1818, and re-enacted in the Revised Stat- utes of 1835,^ limited to the value of tlieir interest in the ship and freiglit, in cases where they were liable for loss or damage occa- sioned by the acts of the master or mariners, (a) By tlie statute ■ Wilson V. Dickson, 2 B. & Aid. 2. ' See 2 Kent, Com. 606. ' Part l,tit. 12, ch. 32, §§ 1,2. (a) The acts limiting the liability of ship-owners in this country are : Massa- chusetts, act of 1818, c. 122; Kev. Stats, c. 32; Gen. Stats, c. 52, §§ 18-21. Maine, act of 1821, c. 14; Rev. Stats. 1840, c. 47; Rev. Stats. 1850, c. 35. United States, act of 1851, c. 44, 9 U. S. Stats, at Large, 635. Under the act of Congress the following decisions have been made : Section 1. Goddard v. Bark Tangier, 21 Law Rep. 12; Salmon Falls Co. v. Bark Tangier, lb. 6; The Ship Middlesex, lb. 14 ; Walker v. Transportation Co., 3 Wall. 150. Section 2. Wattson V. Marks, 2 Am. Law Reg. 161 ; Pender v. Robbins, 6 Jones, 207 ; and see Gibbs v- Porter, 10 M. & W. 70 ; Williams v. African Steamship Co., 1 H. & N. 300, 37 Eng. L. & Eq. 462. Sections 3 and 4. Watson v. Marks, 2 Am. Law Reg. 161 ; Walker v. Boston Ins. Co., 14 Gray, 307 ; Spring v. Haskell, lb. 309; In re Sinclair, 8 Am. Law Reg. 206; Allen v. Mackay, Sprague, 219. Section 6. Wilson v. Dickson, 2 B. & Aid. 2, under corresponding section of 53 Geo. 3, c. 159. Section 7. Moore v. Am. Transp. Co., 24 How. 1. This statute is discussed at length in 1 Am. Law Review, 597. 6 82 LAW OF CAKRIERS. [CHAP. IV. of New York, of April 13, 1820, ch. 202, the conduct of canal- boats are under specific regulations, and freight boats are bound to aiford facilities to the passage of packet or passenger boats through the locks and on the canals, and the masters and owners are held responsible in damages for injuries resulting from any undue non-compliance with their duty.^ § 91. In i:espect to the acts of agents, and persons in the em- ployment of a carrier, the maxim respondeat superior applies, and he is equally liable for their acts and fo;* his own. In North Caro- lina, it has been held, that if a man's slave acts for him as a ferry- man, the master is considered a common carrier.^ Any arrange- ment made between a carrier and his agent or servant, whereby the latter are to be paid for the carriage of particular parcels, will not exempt the carrier from responsibility for the loss of such parcels unless such an arrangement is known to the owner there- of, so that he contracts exclusively with the servant or agent.^ It has been already shown, that the mere fact that the driver of a stage-coach, or the master of a steamboat, is accustomed to carry packages of a particular description, especially for his own per- sonal emolument, will not make the proprietors responsible there- for as common carriers.* If the act upon which common carriers are sought to be charged be the act of an agent, his authority must be made out, and there arises a question of fact for the jury.* § 92. As an action lies against a principal for an injury done to another through the negligence or unskilfulness of his servants while acting in his employment, so partners are responsible in the same way for the conduct of one of them as their servant in, for instance, driving against carriages, or running down ships. In 1 Farnsworth u. Groot, 6 Cow. 698 ; and see 2 Kent, Com. 606, note 6. ' Spivy V. Farmer, 1 Murph. 339. • Allen V. Sewall, 2 Wend. 327 ; Story on Bailm. 506 ; Citizens' Bank v. Nan- tucket Steamboat Co., 2 Story, 16 ; Bostwick ». Champion, 11 Wend. 571. Every person employed by one who is a common carrier, whether by the name of sub- contractor, servant, or otherwise, to perform any part of the work which the car- rier has undertaken to perform ; and every person employed by such person for that purpose, it has been held, is a " servant in the employ of the carrier," with the 11 Geo. 4, & Will. 4, which renders common carriers liable for the felonious acts of servants in their employ. Machu v. London R., 2 Exch. 415. * Bean v. Sturtevant, 8 N. H. 146, cited ante, § 77 ; and see ante, 85. For the doctrine of the liability of master for the acts and negligence of his agents and servants, see &\iopost, §§ 672-582. ' Thurman v. Welb, 18 Barb. 500. And see post, § 572, et seq. and § 638. CHAP. IV.] CARKIEES IN COPARTNERSHIP. 83 these eases, if the carriage or the ship by which the damage is done is the joint property of the partners, it is unimportant wheth- er it was under the guidance of one of the partners, or under the care and management of their servants, for qui facit per alium facit per se} (a) § 93. It is not unusual for several persons to be engaged as partners in carrying goods by land, and by contract inter se, one of them is to find horses and drivers for a certain distance on the route, and the other for the remaining distance ; and when such an arrangement is made, they are jointly responsible as partners throughout the entire route. And although all the partners may not have an interest in the vehicle, yet all will be held responsi- ble as such, upon any contract made by their agent, for the car- riage of any package sent by either of the vehicles, and conse- quently for the loss of it.^ In a case where A, the keeper of a iCoach-ofifice, and part owner in several coaches, made a contract with B, for the carriage of parcels which he was in the habit of sending from that office to various places ; it was held, that this bound the owners of all the coaches, in which A was a part owner, and as well those who became partners after the making of the contract, as those who were so before.^ Thus also where A, B, and C run a line of stage-coaches from Utica to Rochester, and the route was divided between into sections, the occupant of each section furnishing his own carriages and horses, hiring drivers, and paying the expenses of his own section ; and the money re- ' Bostwick V. Champion, 11 Wend. 571, and the authorities there cited by- Nelson, J. ^ Story on Bailm. § 606 ; and see Bostwick v. Champion, vb. sup. Where the ' defendant and one Dyson were carriers from London to Gosport, and by an ar- rangement between them, Dyson liorsed the wagon from London to Farnham, and the defendant then conducted to Gosport, and at the time the mischief com- plained of happened the wagon was drawn by Dyson's horses, and driven by a servant of his, who had been hired by and received wages from Dyson, and with whose employment the defendant had no concern whatever, but the wagon itself was the property of the defendant; it was held that the defendant and Dyson were both jointly interested in the profits, and that, notwithstanding this private agree- ment, were jointly responsible to third persons for the negligence of their drivers throughout the whole distance. Waland v. Elkins, 1 Stark. 272. Since it was no objection, said the court, that Dyson was not joined, the case was the same as if the defendant received all the profits. = Helsby v. Hears, 5 B. & C. 504. (a) Mayall v. Boston R., 19 N. H. 122. 84 LAW OF CARRIERS. [CHAI^. IV. ceived as the fare of passengers, deducting therefrom only the tolls paid at the turnpike gates, was divided among the parties in pro- portion to the number of miles run by each ; and an injury was done to a third person through the negligence of the driver of the coach of A ; it was held, that a joint action on the case at the suit of the party injured lay against B and C, as well as A.^ § 94. So likewise with shippers. Where an association was formed between shippers on hike Ontario and the owners of canal- boats on the Erie Canal, for the transportation of goods and mer- chandise between the city of New York and the ports and places on Lake Ontario and the river St. Lawrence, and a contract was entered into by the agent of such association for the transporta- tion of goods from the city of New York to Ogdeusburg, on the river St. Lawrence, and the goods were lost on Lake Ontario ; it was held, that all the defendants were liable for the loss, al- though some of them had no interest in the vessel navigating the lake.2 § 95. In the absence of any partnership connection between one route and another one united with it, persons receiving goods, as common c&rriers, continue to be responsible in that character un- til the goods are delivered at the place to which they are directed, even if the place to which they are directed is beyond the limits of the place to which they are accustomed to carry and deliver. A parcel was delivered at Lancaster, to the Lancaster and Pres- ton Railway Company, directed to a person at a place in Derby- shire. The person who brought it to the station ofiFered to pay the carriage, but the bookkeeper said it had better be paid by the person to whom it was directed, on the receipt of it. The com- pany were known to be the proprietors of the line only as far as Preston, where the railway unites with another line called the North Union line, and that afterwards with a third line, and so on into Derbyshire. The parcel having been lost, after it had been forwarded from Preston, it was held, that the company were liable ' Bostwick V. Champion, uh. sup.; and see Weed v. Schenectady K., 19 Wend. 534. . = Fairohild v. Slocum, 19 Wend. 329. This is not like the case of Roberts v. Turner, 12 Johns. 232. There the defendant was a^mere warehouse keeper and forwarder of goods ; and the course of business was for him to receive merchan- dise or produce at his store, and forward it by boatmen on the Mohawk Kiver. He was not, therefore, a carrier, but an intermediate agent between the owner and the carrier. CHAP. IV.] TERMINUS OF LIABILITY. 85 for the loss.^ That a railroad company undertaking to carry pas- sengers and their baggage beyond the limits of their own road are beyond doubt liable for losses which occur on any part of the route in respect to which the contract is made, was held, in the case of The Schenectady and Saratoga Railroad Company ; who, having undertaken to carry from the Springs at Saratoga to Alba- ny, they could not be allowed to say that they were carriers no farther than Schenectady, the' termination of their own road.^ (a) Common carriers employed in the transportation of goods on the Hudson River, between New York and Albany, if they receive a package directed to a place beyond Albany, and give an accept- ance of it, without specially limiting their responsibility no farther than Albany, are held liable for the loss of the goods happening after their delivery at Albany. The box in question was directed to " J. Petrie, Little Falls, Herkimer Co.," and was delivered on board for the express purpose of transshipment to him, and was there received by the agent, who gave his receipt therefor. This, in effect, the court considered, was the agent's saying to the plain- tiff that he would take and deliver it at the place of destination.* The ground is that one company are the agents of the other,* and ' Muschamp v. Lancaster R., 8 M. & W. 421. ° Weed u. Schenectady R., 19 Wend. 534. The same doctrine is recognized by the Supreme Court of Florida. Bennett v. Filyaw, 1 Fla. 403. ' St. John V. Van Santvoord, 25 Wend. 660. But this decision was overruled by the Court of Errors on the ground that the evidence was such that the car- riers ceased to be such on the arrival of the goods at Albany, and that they became then mere forwarders of the goods. Van Santvoord v. St. John, 6 Hill, 157. As to the distinction between carriers and forwarders, see ante, § 75 ; and see also post, § 281. * Watson V. Ambergate R., Q. B. 1851, 3 Eng. L. & Eq. 497; Scothoru v. South Staffordshire R., 8 Exch. 341, 18 Eng. L. & Eq. 553 ; Crouch v. Lon- don R., 14 C. B. 255, 25 Eng. L. & Eq. 287; Goold v. Chapin, 10 Barb. 612; Fowles V. Great Western R., 7 Exch. 699, 16 Eng. L. & Eq. 531 ; Richards v. London R., 7 C. B. 839; Johnson j-. Midland R., 4 Exch. 367; Wilcox v. Par- melee, 3 Sandf. 610; Farmers' Banit v. Champlain Tran. Co., 23 Vt. 209; Teall (a) See also Mytton v. Midland R., 4 H. & N. 615; Read v. Spaulding, 5 Bosw. 395 ; Coxon v. Great Western R., 5 H. & N. 274 ; Bristol R. v. Cummings, 5 H. & N. 969 ; Collins v. Bristol R., 11 Exch. 790, 36 Eng. L. & Eq. 482; re- versed in Exch. Ch. 1 H. & N. 517; Noyes v. Rutland R., 27 Vt. 110; Hart v. Rensselaer R., 4 Seld. 37; Schroeder v. Hudson River R., 5 Duer, 55 ; Foy u. Troy R., 24 Barb. 382 ; Krender v. Woolcott, 1 Hilton, 223 ; Rome R. v. Sullivan, 25 Ga. 228 ; Williams v. Vanderbilt, 29 Barb. 491 5 Gary v. Cleveland R., 29 Barb. 35 ; Perkins v. Portland R., 47 Maine, 573 ; Burtis v. Buffalo R., 24 N. Y. 269. 86 LAW OF CAREIEES. [CHAP. IV. ■without any special contract between the parties, there is primd facie evidence of a contract to carry the goods to the place of des- tination according to the marks and directions on them.^ § 96. The preceding cases are different from that of Garside v. Trent and Mersey Navigation Company, wliere the defendants im- dertook to carry goods from Stourport to Manchester, and to for- ward them from thence to Stockport ; they were not held liable after the goods had been safel-y lodged at Manchester, because it appeared that they were only common carriers as far as Manches- ter, and their obligation ceased as soon as they had deposited them V. Sears, 9 Barb. 317; Parker v. Flagg, 27 Maine, 181; Sage v. Guttner, 11 Barb. 120; Hood v. New York K., 22 Conn. K. 1. . And see American Law Register for April, 1856, p. 383. ' See the authorities just cited. But in Connecticut it has been held, that in an action against a railroad corporation to recover for the loss of goods directed to a place situated beyond the line of their road, the corporation was bound only for their delivery at the end of their own road. Waite, C. J., dissenting. Elmore V. Naugatuck R., 23 Conn. 457. (a) (a) See also Naugatuck R. v. Waterbury Button Co., 24 Conn. 468. And in Massachusetts, the case of Muschamp v. Lancaster R. has not been followed. Nutting V. Connecticut River R., 1 Gray, 502 ; Lowell Wire Fence Co. u. Sargent, 8 Allen, 189. And where an arrangement is made between several connecting railroad companies, by which goods to be carried over the whole route are to be delivered by each to the next succeeding company, and each company is to pay to the preceding company the amount already due for the carriage, and the last one is to collect the whole from the consignee, a reception of goods by the last company, and a payment by it of the charges of its predecessors, will not render it liable for an injury done to the goods before it received them. Darling v. Bos- ton R., 11 Allen, 295. See South Carolina R. v. Bradford, 10 Rich. 807 ; Brad- ford V. South Carolina R., 10 Rich. 221 ; Kyle v. Laurens R., lb. 382; Dillon v. New York R., 1 Hilton, 231 ; Brintnall v. Saratoga R, 32 Vt 665 ; Angle v. Mis- sissippi R., 9 Iowa, 487. And if the last carrier sues to recover the entire freight of goods over a continuous line of transportation, of which his route forms a part, the defendant cannot set off damage done.to the goods on any part of the route. Carson v. Harris, 4 Greene, Iowa, 516. Unless the last carrier is the agent of the others, as in Fitchburg R. v. Hanna, 6 Gray, 539. The language of this last case seems to justify the theory that the mere act of suing for the entire freight makes him such an agent ; but as the later Massachusetts cases hold that the carrier in paying the preceding carriers acts as the agent of the owner of the goods, it is difficult to see how the act of suing for his own compensation and for money paid for the use of the owner can make him the agent of the preceding carriers. And it is held that the fact of demanding the entire freight does not render the last carrier liable for damage done by a preceding carrier. Wilson v. Harry, 32 Penn. State, 270; Hunt v. New York R., 1 Hilton, 228. CHAP. IV.] TERMINUS OF LIABILITY. 87 there in safety. They then took charge of the goods merely as warehousemen, for the convenience of tlie plaintiff, to keep them till the Stockport carrier called for them.^ § 97. If common carriers then intend in any case to limit their responsibility in that character short of the place to which the goods are directed, they are bound in some way to indicate such intent? (a) Otherwise, if such place was no more than one mile beyond the terminus of the carrier's established route, and the goods are lost on the other side of it, the owner of the goods is to find out somebody or other who is to be liable in respect of the carriage for that one mile. It was said in the English Court of Exchequer, by Lord Abinger, C. B., in the case above cited : " Particular circumstances might, no doubt, be adduced to rebut the inference which, primd facie, must be made of the defendants having undertaken to carry the goods the whole way. The taking charge of the parcel is not put as conclusive evidence of the con- tract sued on by the plaintiff ; it is only primd facie evidence of it ; and it is useful and reasonable for the benefit of the public that it should be so considered. ■ It is better that those who undertake the carriage of parcels for their mutual benefit should arrange matters of this kind inter se, and should be taken each to have made the others their agents to carry forward." ^ § 98. Carriers who contract with the agent of the owner of goods for their transportation are of course none the less liable, as common carriers, to the owner. Thus, if a person who has established what is called an express line, for the conveyance of goods, money, &c., for all who will employ him, has a contract in his own name with a steamboat company for their conveyance, and delivers goods or money on board to be transported, and the goods or money are lost by negligence, the owner may sustain an action against the company ; and it makes no difference whether the name of the owner is disclosed by the agent to the company or not.* § 99. Secondly : Since it appears that neither the element on • Gai-side v. Trent Nav. Co., 4 T. K. 581. And see Boehm v. Coombe, 2 Maule & S. 172 ;. Thomas v. Boston E., 10 Met. 472 ; and see ante, § 75. ' St. John V. Van Santvoord, uh. sup. ' Muschamp v. Lancaster R., 8 M. & W. 421. * New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. (a) See Butler v. Steamer Arrow, 6 McLean, 470. 88 LAW OF CAREIEES. [CHAP. lY. which goods are carried, nor the nature, magnitude, and form of the carriage make any difference, the question is, whether there is a diversity between one kind of goods and another. Persons undoubtedly may be common carriers of goods, although they are not precisely of the same kind and description that have before been carried by them for hire ; unless, indeed, they be such that the person delivering them has good reason to suppose that they are not within the scope of the agent's authority to receive and transport. Thus, in our commercial cities, it is every day's prac- tice for ship-masters and other agents to receive and. transport new kinds of goods which were before unknown, and yet it was never, and never could reasonably be, questioned, that the ship- owner was equally liable, as if he had been personally present and had agreed to transport the new article. But the owner ofapas- sage boat carrying light freight might not be answerable for a cargo of coal or of marble, taken on board by the master, although he had been in the habit of carrying small pieces or specimens of either for hire. In the last case, the party who contracted with the agent would have good reason for presuming that the agent was acting contrary to the wishes of his principal ; and if such were really the fact, the latter would probably not be held liable.^ Where there is a meditated concealment of the nature and value of the goods delivered to the carrier (as by their being locked up in a chest), and they are of extraordinary value, and that fact is not communicated to the carrier, and, in consequence, the same care is not taken of the goods by the carrier as would otherwise have been, and they are lost, whether the carrier will be then ex- onerated will be considered in another place. § 100. The expression generally used is " a common carrier of goods" but a carrier of money may be as much bound as a com- mon carrier of goods, if to carry it is the common usage of the business in which he is engaged, and if it be his well-known prac- tice to take charge of it for conveyance.^ Thus, in the case of ' See the opinion of Walworth, Chancellor, in Sewall v. Allen, 6 Wend. 346 ; and see King v. Lenox, 19 Johns. 235. To charge a person as common carrier, it must be shown that the usage of his business includes the goods forwarded, or that there was a special contract to carry them. Tunnel v. Pettijohn, 2 Harring. Del. 48. " Story on Bailm. § 495 ; Kemp i>. Coughtry, 11 Johns. 109 ; Sheldon v. Rob- inson, 7 N. H. 157; Emory ». Hersey, 4 Greenl. 407; and see Harrington v. M'Shane, 2 Watts, 443; Merwin v. Butler, 17 Conn. 138; New Jersey Steam Kav. Co. V. Merchants' Bank, 6 How. 344. See ante, § 84. CHAP. IV.] EXPRESS LINE. — NATURE OF THE PROPERTY. 89 Dwight V. Brewster, in Massachusetts,^ it is affirmed, that the pro- prietors of a stage-coach are liable where they act as common car- riers, and the profit made by the carriage of bank-bills is within the scope of their business and for their account. § 101. In Allen v. Sewall, in New York,^ it was held that, on the principle of the responsibility of common carriers, owners of a steamboat carrying light freight and parcels for hire, as well as passengers, were answerable for the loss of a package of bank-bills delivered to the captain for carriage ; and also that instructions to the captain of a vessel, employed in the carrying business, not to carry money, does .not excuse the owners, unless notice of such instructions is brought home to the shipper. But this case was reversed on the ground that bills were not " goods, wares, and merchandise" within the meaning of the charter incorporating the steamboat company, whose agent the defendant was ; and also on the ground that the carriage of such bills was not a part of their ordinary business, and was forbidden by instructions to the master.^ (a) § 102. In the case of the Citizens' Bank v. The Nantucket Steamboat Company (a suit in admiralty), the suit was in sub- stance brought to recover from that company a sum of money in bank-bills and accounts belonging to that bank, which was intrust- ed by the cashier of the bank to the master of the steamboat, to be carried from the island of Nantucket to the port of New Bed- ford, which money had been lost, and never duly delivered by the master. The charter incorporating the company granted a right to run a steamboat " for tlie transportation of merchandise." It was held that the term merchandise does not apply to merely evidences of value, such ' as notes, bills, checks, policies of insur- ance, and bills of lading, but. only to articles having an intrinsic value in bulk, weight, or measure, and which are bought and sold ; ' Dwight V. Brewster, 1 Pick. 50. * = Allen V. Sewall, 2 "Wend. 327. ' 6 Wend. 335. "If I were compelled," says Mr. J. Story, "to choose between the relative authority of these decisions, upon the ground of the reasoning con- tained therein, I should certainly have deemed that of the Court of Errors the best founded in the principles of law." Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 49. Kent seems to entertain a like opinion. 2 Kent, Com. 698, note. (a) Chicago K. v. Thompson, 19 111. 578; Cincinnati Mail Co. v. Boal, 15 Ind. 345 90 LAW OF CAEKIERS. [CHAP. IV. and that in order to render the company liable it must be clearly proved that they had held themselves out to the public as common barriers of bank-bills for hire, and that they had authorized the master to contract on their account, and not on his own, for the carriage thereof. That the onus probandi was on the libellants to make out a.primdfacie case in the afiirmative ; and then the onus probandi of disproving this inference was shifted upon the respond- ents. That the knowledge of the owners that the master carried the money for hire would not affect them unless the hire was on their account, or unless the master held himself out as their agent in that business, within the scope of the usual employment and service of the steamboat.^ (a) § 103. The general principles of law upon this subject cannot be too well understood, and they are well illustrated by Mr. J. Story, in the case just above cited, as follows : " The transporta- tion of passengers or of merchandise, or of both, does not necessa- rily imply that the owners hold themselves out as common car- riers of money or bank-bills. It has never been imagined, I pre- ' Citizens' Bank v. Nantucket Steamboat Co., 2 Story 16. In the case of Sewall V. Allen, in the Court of Errors of New York, it was held, it has been shown, that a steamboat charter, authorizing the company to transport " goods, wares, and merchandises," did not necessarily include the carriage of bank-bills ; so that, unless the company actually made that as a part of their ordinary business of common carriers, they were not liable for any loss thereof. The judgment of Mr. J. Story strongly inclined to the same conclusion. In the charter of the Citizens' Bank it appeared, in their suit against the Steamboat Company, the word goods is not found. If it were, said the learned judge, there might be more difficulty encountered in construing it; as it was, he had been unable to persuade himself that either the corporation or the legislature, under the word merchandise, meant to include bank-bills, as an object of regular transportation for hire. It was incumbent, he said, upon those who assert that the charter includes such an expanded meaning, to show, by some clear and determinate proofs, that the com- pany have positively adopted and acted upon that meaning. The decree of the District Court, dismissing the libel with costs, was affirmed. The ground of de- fence of the company was, that, in point of fact, although the transportation of money and bank-bills by the master was well known by them, yet it constituted no part of their oion business or employment ; that they never, in fact, were com- mon carriers of money and bank-bills ; that they never held themselves out to the public as sucJi, and never received any compensation therefor ; that the master, in receiving and transporting money and bank-bills, acted as the mere private agent of the particular parties, and not as the agent of the company or by their author- ity. Farmers' Bank v. Champlain Trans. Co., 23 Vt. 186. (a) Hosea v. McCrory, 12 Ala. 349 j Garey v. Meagher, 33 Ala. 630. CHAP. IV.] COMMON CARRIERS OP MONEY. 91 sume, that the owners of a ferry-boat, whose ordinary employment is merely to carry passengers and their luggage, would be liable for the loss of money intrusted for carriage to the boatmen or other servants of the owners, where the latter had no knowledge thereof, and received no compensation therefor. In like manner the owners of stage-Coaches, whose ordinary employment is limit- ed to the transportation of passengers and their luggage, would not be liable for parcels of goods or merchandise intrusted to the coachmen employed by them to be carried from one place to an- other on their route, where the owners receive no compensation therefor, and did not hold themselves out as common carriers of such parcels. A fortiori, they would not be liable for the carriage of parcels of money or bank-bills, under the like circumstances. So, if money should be intrusted to a common wagoner not au- thorized to receive it by the ordinary business of his employers and owners at their risk, I apprehend that they would not be liable for the loss thereof as common carriers, any more than they' would be for an injury done by his negligence to a passenger whom he had casually taken up on the road. In all these cases the nature and extent of the employment or business which is authorized by the owners on their own account and at their own risk, and which either expressly or impliedly they hold themselves out as under- taking, furnishes the true limits of their rights, obligations, duties, and liabilities. The question, therefore, in all cases of this sort is. What are the true nature and extent of the employment and business in which the owners hold themselves out to the public as engaged ? They may undertake to be common carriers of passen- gers, and of goods and merchandise, and of money ; or they may limit their employment and business to the carriage of any one or more of these particular matters. Our steamboats are ordinarily employed, I believe, in the carriage, not merely of passengers, but of goods and merchandise, including specie, on freight ; and in such cases the owners will incur the liabilities of common carriers as to all such matters within the scope of their employment and business. But in respect to the carriage of bank-billsj perhaps very different usages do, or at least may, prevail in different routes and different ports. But, at all events, I do not see how the court can judicially say that steamboat owners are either necessarily or ordinarily to be deemed in all cases common carriers, not only of passengers, but of goods and merchandise and money on the usual 92 LAW OF CARRIERS. [CHAP. IV, voyages and routes of their steamboats ; but the nature and ex- tent of the employment and business thereof must be established as a matter of fact by suitable proofs in each particular case. Such proofs have, therefore, been very properly resorted to upon the present occasion.^ (a) § 104. If by the usage of trade the carrier of the goods is to act as the agent for the sale of them at the port of destination, and to return the net proceeds to the shipper, it seems that when he re- ceives the money arising from the sale, his liability as a common carrier reattaches, and he is answerable as a common carrier for the loss of the money ; and on this subject the principles advanced in the prece'ding section may be applicable. In Kemp v. Cough- try,^ the master of a coasting vessel was employed to carry goods from Albany to New York, and the usual course of trade was for the master to sell the goods at New York, without charging any- thing more than the ordinary freight, and to account to the owner of the goods for the proceeds, and not to the owner of the vessel. The master, after receiving the goods, carried them to New York, and sold them there, and brought the money, the proceeds of the sale, on board, and put it in his trunk. The cabin, though locked in the absence of the master and crew, was broken open, and the money stolen. The court held, upon this state of facts, that the owners were responsible for the loss, and treated the case as one arising against them in the character of common carriers. The view taken by the court was, that the money, when on board, was ' Kirkland v. Montgomery, 1 Swan, 452 ; Chouteau «. Steamboat St. Anthony, 11 Misso. 226 ; Russell v. Livingston, 19 Barb. 346 ; Farmers' Bank v. Cham- plain Trans. Co., 23 Vt. 186. ' Kemp V. Cough try, 11 Johns. 107. (a) Whitmore v. Steamboat Caroline, 20 Misso. 513 ; Chouteau v. Steamboat St. Anthony, lb. 519 ; Enox v. Rives, 14 Ala. 249. In Louisiana a steamboat is liable for money deposited by travellers, when the deposit is a necessary one. Dunn V. Branner, 13 La. Ann. 452. In Haynie v. Waring, 29 Ala. 263, it was argued that, inasmuch as an act of Congress made it the duty of the master or manager of a steamboat to deliver to the postmaster of a place all letters deliv- ered to the steamboat and addressed to such place, and entitled the carrier to receive two cents for each letter from the postmaster (act 1825, c. 64, § 6, 4 U. S. Stats, at Large, 104), this made the steamboat a common carrier of a letter, containing money, and carried gratuitously ; but the court held that the act of Congress had no effect on the contract between the carrier and a third person. CHAP. IV.] BAGGAGE OF PASSENGERS. 93 to be considered the same as a return cargo purchased with the proceeds of the goods.^ § 105. In Emery v. Hersey, in Maine, it appeared that the de- fendant's sloop was employed in carrying wood and lumber on freight from the river Saco ; and that the plaintiff shipped on board of the sloop, on freight, a certain quantity of lumber to be sold by the master, and the net proceeds to be paid over to the plaintiff. It appeared, also, by the testimony, that the usage at Saco was, when lumber is shipped on freight, for the master to sell it, and bring home the money and pay it over to the shipper. It was held that where, in the usual course of business, goods shipped on freight are consigned to tlie master for sales and re- turns, the owner of the vessel is liable as well for the payment of the proceeds to the shipper as for the safe transportation of the goods ; and the court referred to the decision in the case of Kemp V. Coughtry as an authority directly in point.^ This case, with the preceding one, was considered in the case of Harrington v. M'Shane, in the Supreme Court of Pennsylvania ; and it was held in this case that, where the owners of a steamboat took produce for a certain freight, to be carried from Pittsburg to Louisville, ' Upon the decision in this case, Story, in his work on Bailments, has thus com- mented : " Upon the actual posture of the facts in this case, the very question was, whether the very specific money on board was to be treated as cargo, or was to be carried back for hire ; and whether the master was bound to carry back the specific money received by him, or was only bound to pay over and account to the shipper for the amount and value of the proceeds in any money whatsoever. Now, it is certainly no part of the duty of a common carrier to sell goods and to account for the proceeds. If he sells, il is not as a carrier, but as a factor. The owners of the vessel may be liable for his acts as factors, if the course of trade makes him their agent in the business of selling. But, when there is a right de- livery of the gogds at the place of destination, the duty of the carrier, as such, wo.uld seem to cease, and the duty of factor to commence. If the specific money received, or any other goods bought with it, are to be returned in the same vessel to the original port, and the freight paid contemplates that course of trade, as soon as the goods or money are put on board for the purpose of the return car- riage, the liability of the carrier certainly reattaches. But the evidence in the case went to show, not that there was to be any such return of the particular money or goods in the vessel, but merely, that there was a liability of the master to ac- count for the proceeds to the owners of the goods, and nqt to the owner of the vessel. Perhaps the application of the law to the facts, rather than the law itself, as laid down in the case, would deserve further consideration." See Allen v. Sewall, 2 Wend. 227, 6 Wend. 363. * Emery v. Hersey, 4 Greenl. 407. 94 LAW OF CAEBIERS. [CHAP. rv. and to be sold by them, and were bringing back in the same ves- sel the money which they obtained on the sale of the produce, when the vessel and money were accidentally consumed by fire, the owners, under the usage of trade on the Western waters, were acting as common carriers in going as factors in selling the prod- uce, and as common carriers in bringing back the money ; and that they were liable for the loss of the money, notwithstanding the accident.^ § 106. But the usage in such cases, like all commercial usages, must be clearly proved. The captain of a steamboat, who was part owner, took flour on freight, and undertook to sell it ; and after selling it, failed to account for the proceeds to the freighter ; and the owners, it was held, were not bound by his contract, in the absence of proof, that he had express authority from them, or implied authority from the usage of trade, to act as factor, and the court refer to the decision in the case of Kemp v. Coughtry, in New York, as being founded on the usage of trade between New York and Albany.^ If a common carrier, by whom goods are sent to A, sells them to B, such sale vests no title ; and, to take a case out of the operation of this principle, on the ground, of the usage of trade, the usage must be well established, certain, uniform, and reasonable. But if the owner of a horse send it to a repository of sale, it must be intended as an implied authority to sell it ; or, if one sends goods to an auction-room, it cannot be supposed that he sent them there merely for safe custody. So the principle is not denied, that if a person sends by a carrier merchandise or produce to a place where it clearly appears to be the ordinary business of the carrier to sell, it must be intended that the commodity was sent thither for the purpose of sale. § 107. It has been a matter of considerable discussion, whether the usual baggage taken with them by persons in travelling .in stage-coaches, rail-cars, steamboats, &c., are to be regarded as in the custody of the proprietors of those conveyances in the charac- ter of common carriers, (a) It has ever been agreed on all hands that the proprietors do not warrant, in that character, the safety • Harrington v. M'Shane, 2 "Watts, 448. ^ Taylor v. Wells, a Watts, 65. (a) As to what will amount to a delivery of baggage to a carrier, see post, §§ 131, 146 a. CHAP. IV.] BAGGAGE OF PASSENGERS. 95 of the persons of the passengers, though, as will be shown in a separate chapter, they are responsible for due care in respect to that. Tliat the proprietors were not responsible as common car- riers for the baggage of the passengers, unless a distinct price was paid for it, was twice held by Lord Holt ; and he considered it not usual to charge for baggage, unless it exceeded a certain amount in weight or quantity .^ But, inasmuch as the custody of the baggage is an accessary to the principal contract,^ it is consid- ered that coach proprietors, &c., should be placed in respect to baggage upon the ordinary footing of common carriers, (a) § 108. So the law is now considered to be in England.^ (6) Thus, in a modern case, in an action against a coach proprietor, to recover damages for the loss of a trunk, the plaintiff, it ap- peared, being about to travel from Bath to Truro, took a place at the defendant's coach-office. At Taunton, when the^ coach was changed for the convenience of the proprietor, the plaintiff was as- sured by the coachman that the trunk had been safely stowed on the top of the coach, the second vehicle being deficient in the ac- commodation of a boot, which the first afforded. On arrival at the place of destination the plaintiff missed his trunk, which con- tained apparel and jewels ; and it was held, that the defendant was liable to make compensation to the owner, though no disclos- ' Middleton v. Fowler, 1 Salk. 282 ; TJpshare v. Aidee, 1 Comyns, 25 ; and see Jeremy on Carr. 11, 13. ' It is said, in the Civil Law, that, by a delivery of the principal thing, that which is accessorial does not pass ; as if a slave, with his clothing on, is deposited ; or a horse with his halter ; neither the clothes nor the halter are deposited. But this doctrine, if true at all in our law, must be received with many qualifications. It must always depend upon the intent of the parlies. Story on Bailm. § 54. According to this rule, the contract to carry the baggage of a passenger by usu- ally receiving baggage, subjects the proprietor to the responsibility of a common carrier of goods in general ; as it is at least as much intended by the passenger, that his trunk containing his necessary baggage should be safely transported, as it is intended by the shipper of a barrel of flour that that should be. » 1 Bell, Com. 467, 468; Great Western R. v. Goodman, 12 C. B. 313, 11 Eng. L. & Eq. 546. (a) As to the liability of street railways, see Levi v. Lynn E., 11 Allen, 300. Where there are connecting lines of railroads, and baggage is lost, it must be shown that the one sought to be charged has either received the baggage or has contracted in some way to transport it. Michigan R. v. Meyres, 21 111. 627. See also Penn. R. v. Schwarzenberger, 45 Penn. State, 208. (6) See Munster v. Southeastern R., 4 C. B. n. fl. 676. 96 LAW OF CARRIERS. [CHAP. IV. ure was made of the value of the contents of the trunk, and though there was a notice in the defendant's office limiting his responsi- bility to five pounds, in the absence of such disclosure ; which notice the owner of the trunk, having been in the office, had an opportunity of seeing.^ § 109. In Peixotti v. M'Laughlin, in the Court of Appeals of South Carolina, in 1847,^. in which it was held, that a stage con- tractor is a common carrier, and liable as such for all loss of bag'- gage, Richardson, J., who delivered the opinion of the court, ob- served : " The strict liability of common carriers by the Common Law has been fully recognized in this State in many cases, and the general doctrine is established. The liability of ferrymen as common carriers, so often adjudged, is very analogous to the pres- ent case. The ferryman takes over a man, say for ten cents; but if the man carries a pack, there can be no doubt the ferryman would be liable for the loss of the pack, although he takes no toU separately for the pack. So, if the contents of a wagon or of the load upon a horse be lost ; because all must be necessarily placed in the custody of the ferrymen. Tlie stage contractor, the ferry- man, the boatman, railroad companies, and wagoners are alilce carriers over the public highway, and stand all in the same parity of reasoning, i. e. they come within the same necessary and strict legal policy of guarding against robberies or cheats by those who, having the custody, are enabled to do wrong secretly." § 110. It was formerly held, say the Supreme Court of New York, that the owner of the vehicle or boat was not answerable as a carrier for the luggage of the passenger unless a distinct price was paid for it ; but it is jiow held, that the carrying of the bag- gage is included in the principal contract in relation to the pas- senger ; and the carrier is answerable for the loss of the property, altliough there was no separate agreement concerning it. A con- tract to carry the ordinary baggage of the passenger is implied from the usual course of the business ; and the price paid for fare is considered as including a compensation for carrying the freight.^ ' Brooke v. Pickwick, 4 Bing. 218. As to the effect of notices in limiting cai^ riers' responsibility, it will be fully, considered, post, Chapter Vil. See Cairns v. Bobins, 8 M. & W. 258. ' Peixotti V. M'Laughlin, 1 Strob. 468. And see_Dill v. South Carolina R., 7 Rich. 158. " Hawkins v. Hoffman, 6 Hill, 586 ; Bennett v. Button, 10 N. H. 481 ; Logan V. Ponchartrain B., 11 Bob. La. 24. CHAP. IV.] BAGGAGE OF PASSENGERS. 97 The practice of requiring freight for baggage if over a certain weight, well illustrates that baggage under that weight is fully paid for by the personal passage-money of the traveller.^ It was affirmed by Chancellor Walworth, in Powell v. Myers, in the Court of Errors of New York,^ that the salutary rule of holding the own- ers of steamboats, railroads, canal-boats, stage-coaches, &c., liable for losses other than those arising from public enemies or inevita- ■ ble accidents, and which is so essential to the preservation of the baggage of the otherwise unprotected traveller against the negli- gence of the carriers, or the frauds of their servants, should not be impaired by any decision of that court ; and the opinion of the Court of Errors was, that such owners were liable as common car- riers for the safety of baggage until its delivery to the owner. The doctrine as laid down with great rigor in Ohio, in which State it has been held, that the proprietors of stage-coaches are common carriers, and that their liabilities cannot be limited even by actual notice to a traveller that his baggage is at his own risk.^ lu Pennsylvania, in a suit against stage owners for loss of baggage, it was held, that payment of the fare need not be expressly proved; for it may be inferred without violent implication, inasmuch a,s the payment of fare is seldom or ever neglected. But even if the fare is not paid, the passenger is liable to pay it ; and this obliges the owners of a stage-coach to the exercise of diligence.* § 111. The fact that stage contractors, &c., do not enter the baggage upon the way-bill does not alter their liability as common carriers for the loss of such baggage, as the way-bill is altogether ex parte, and is not, like a bill of lading, a contract.^ (a) § 112. Although hackney-coachmen are not deemed common carriers of goods or merchandise, their employment being more ' Peixotti V. McLaughlin, 1 Strob. 468. = Powell V. Myers, 26 Wend. 591. S^ee also HoUister v. Nowlen, 19 lb. 234 ; Cole V. Goodwin, lb. 251, and the cases therein referred to by Justices Bronson and Cowen ; Orange County Bank v. Brown, 21 lb. 254 ; Camden K. v. Burke, 13 lb. 611. ' Jones V. Voorhees, 6 Ohio, 358. * McGill V. Rowland, 3 Barr, 451 ; and see also Bingham v. Bogers, 6 "Watts & S. 495 ; Whitesell v. Crane, 8 lb. 369. ' Peixotti V. McLaughlin, 1 Strob. 468. (a) The owners of a ship may contract with a passenger not to be liable un- less a bill of lading is given for the baggage. Wilton v. Atlantic Nav. Co., 10 C. B. N. 8. 453. 7 98 LAW OF CARRIERS. [CHAP, lY. for the conveyance of passengers than for the carriage of goods,' yet, as to the baggage of the passengers they carry, and hold them- selves out to carry with their baggage, there is as much reason that they should be responsible in the character of common car- riers, in respect to such baggage, as the owners of stage-cpaches, &c. It is ordinarily the case, that hackney-coachmen are accus- tomed to carry the baggage of passengers, although they receive no specific compensation therefor, but simply receive the fare for the transportation of the traveller ; yet, like common carriers, they are responsible for the safety of such baggage ; since it con- stitutes a part of the service for which the fare is paid, and the passengers are thereby induced to travel in the coach, and the custody of the baggage may be deemed, as in the case of an inn- keeper, an accessary to the principal contract.^ Still it is a ques- tion of fact, whether a hackney-coachman or a cabman professes to carry both passengers and baggage ; and if it so appear, he is clothed with the obligations and responsibilities of a common car- rier of goods for hire.^ (a) § 113. Coach proprietors, &c., are held liable as common car- riers for the baggage of passengers, even if the owner of the bag- gage is present, or sends his servant to look after the baggage ; unless there be fraud on the part of the owner. In Robinson v. Dunmore, Chambre, J. said : " It has been determined, that if a man travel in a stage-coach, and take his portmanteau with him, though he has an eye on the portmanteau, yet the carrier is not absolved from his responsibility.* But the law is equally rigid, that the baggage should be fairly in the custody of the carrier ; for where an action was brought against a railroad company for the loss of an overcoat belonging to a passenger, and it appeared that the coat was not delivered to the defendants, but that the pas- senger, having placed it on the seat of the car in which he sat, • Jeremy on Carr. 13, 14 ; Upshare v. Aidee, 1 Comyns, 25 ; Acton v. Heaven, 2 Esp. 533. ' Story on Bailm. § 498. » Eoss V. Hill, 2 C. B. 877, 3 Dowl. & L. 788 ; Dickinson v. Winchester, 4 Cush. 114; and see Commonwealth v. Fahey, 5 Cush. 408. * Robinson v. Dunmore, 2 Bos. & P. 416 ; and see Cole v. Goodwin, 19 Wend. 251. (a) An omnibus proprietor is liable as a common carrier for the baggage of a passenger. Dibble v. Brown, 12 Ga. 217 ; Parmelee v. McNulty, 19 JUl. 556. CHAP. IV.] BAGGAGE OF PASSENGERS. 99 forgot to take it with him when he left, and that it was afterwards stolen, the defendants were not held liable.^ (a) A ferryman seems not to be in the situation of a common carrier at all events, where he takes the passenger along with the goods.^ § 114. The arrival with the baggage in safety at the place of destination will not discharge the carrier until its delivery to the owner ; although, unless demanded in a reasonable time, the lia- bility of the carrier, in his strict character of a common carrier, will not continue.^ (6) No passenger is required, however, to expose his person in a crowd, or endanger his safety in the attempt to designate and claim his baggage ; but if the delivery is made in conformity to a usage, so well established and notorious that it is ' Tower v. Utica K., 7 Hill, 47. And see post, § 140. And see Richards e- London K., 7 C. B. 839. ' Payne v. Partridge, 1 Show. 257 ; Walker v. Jackson, 10 M. & W. 161. See post, 142. " Powell V. Myers, 26 Wend. 591 ; HoUister v. Nowlen, 19 Wend. 234. Inter- ference by the owner, by giving directions as to the care of the property, the transportation of which is interrupted by the closing of a river, is not of itself an acceptance of the property by the owner, but merely evidence of it tp be sub- mitted to the jury, with the other circumstances of the case. Bowman v. Teall, 23 Wend. 306. (a) But see LeConteur v. London R., Law Rep. 1, Q. B. 54. If a passenger in a vessel retains the exclusive possession of his baggage, the owners of the vessel are not responsible if the baggage is stolen. Cohen v. Frost, 2 Duer, 335. This was the case of a steerage passenger in an emigrant ship. In Van Horn v. Eer- mit, 4 E. D. Smith, 453, the owner of a ship on a foreign voyage was held liable for a trunk stolen from the state-room of the passenger. (J) Where a trunk was stolen from a ship two days after she arrived in port, it was held that although the owners of the vessel were not liable as common car- riers, still the burden was on them to show that they wer& not guilty of negli- gence. Van Horn v. Kermit, 4 E. D. Smith, 453. In Fisher v. Geddes, 15 La. Ann. 14, it appeared that the hands on a steamboat were, on arrival at New Orleans, in the habit of taking the passengers' trunks from the boat to a railroad station and getting the baggage checked. Held, that the owners of the boat were liable for a non-delivery at the railroad. Where a train of cars ar- rived at night, it was held that a passenger was obliged to demand her trunk that night, and that the carrier was not liable if it was destroyed by a fire in the night. Roth V. Buffalo R., 34 N. Y. 548. See Ouimit v. Henshaw, 35 Vt. 605. A different rule was laid down in Carey v. Cleveland R., 29 Barb. 35, where a woman was travelling alone. As to the liability of a carrier with whom a passen- ger deposits baggage at the end of his journey, see Van Toll v. Southeastern R., 12 C. B. N. s. 75. 100 LAW OF CARRIERS. [CHAP. IV. to be presumed that the owner had knowledge of it, the carrier will be discharged.^ (a) § 115. The implied undertaking of the proprietors of stage- coaches, railroads, and steamboats, to carry in safety the baggage of passengers is not unlimited, and cannot be extended beyond ordinary baggage, or such baggage as a traveller usually carries with him for his personal convenience.^ (ft) It is never admitted to include merchandise ; and it has been expressly held, that al- ' Cole V. Goodwin, 19 Wend. 251. " Hawkins v. Hoffman, 6 Hill, 586 ; Smith v. Railway Co., 7 C. B. 782 ; Jor- dan V. Fall River R., 5 Cash. 69 ; Smith v. Brighton R., 7 C. B. 782; Great Northern R. v. Shepherd, 8 Exch. 30, 14 Eng L. & Eq. 367 ; and see post, § 259. (a) In Nevins v. Bay State Steamboat Co., 4 Bosw. 225, the plaintiff, on ar- rival of the boat, went to look for his baggage, found a great crowd and confu- sion, went to a hotel near by and sent a porter for his baggage. Held, that he had a right to do so, and that the carrier was bound to take care of the trunks for a reasonable time after arrival. (6) Van Horn v. Kermit, 4 E. D. Smith, 453 ; Dibble v. Brown, 12 Ga. 217; Great Northern R. v. Shepherd, 8 Exch. 30, 14 Eng. L. & Eq. 367; Nordemeyer V. Loescher, 1 Hilton, 499 ; Wilton v. Atlantic Nav. Co., 10 C. B. n. s. 453; Smith V. Boston R., 44 N. H. 325. Linen cut into shirt patterns is wearing ap- parel. Duffy i>. Thompson, 4 E. D. Smith, 178. Where a person sent hya passenger train a quantity of merchandise, expecting to go himself in the same train, but did not, and the goods were lost w;ithout any gross negligence in the carrier, or any conversion by him, it was held that the carrier yras not liable for the loss. Collins v. Boston & M. R. 10 Cush. 506. In this case, Dewey, J., said: " To avoid all misapprehension as to other cases, it may be, however, proper to remark, that in this opinion we have no reference to the cases where boxes of igoods, bales of merchandise, or the like are, for a compensation to be paid there- for, received by carriers of persons for transportation by passenger trains, being known and understood not to be baggage. Such ceu'riers may contract for car- rying merchandise in these trains, and whenever they do so, they do it with the ordinary liability of carriers of merchandise.'' For cases of this kind see Butler V. Hudson River R., 3 E. D. Smith, 571 ; Glasco v. New York R, 36 Barb. 557. See also Smith v. Boston R., 44 N. H. 325; Cahill v. London R., 10 C. B. n. s. 154, 13 C. B. N. 8. 818. If a passenger, with the intent to avoid paying freight, takes merchandise into a passenger car on a railroad, he cannot hold the railroad company liable as a common carrier, although on the journey the merchandise, at the request of a servant of the company, is placed in the baggage car, and is lost. Belfast R. V. Keys, 9 H. L. Cas. 656. In Cahill v. London R., 10 C. B. n. s. 154, affirmed in Exch. Ch. 13 C. B. n. s. 818, a passenger by railway brought with him as luggage a box containing only merchandise. On the box in large letters was written the word " Glass." No information was given to the company's servants as to the contents of the box, nor was any inquiry made by them. Held, that the company was not liable for the -loss of the box. See also post, § 266, note. CHAP. IV.] BAGGAGE OF PASSENGERS. 10J> though the owners of steamboats are liable, as commoiiVet^riers, for the baggage of the passengers, that is, for such articles^iUe- cessity and personal convenience as are usually carried by passen-"" gers, they were not liable for the loss of a trunk containing val- uable merchandise and nothing else ; which trunk was lost after being taken on board the steamboat, and deposited with the ordi- nary baggage.^ Neither does the implied undertaking include a large sum of money. In a case very fully argued, it has been ex- pressly decided, that where the baggage consists of an ordinary travelling-trunk, in which there was a large sum of money (111,250), such money is not considered as included in the term baggage, so as to render the carrier responsible for it.^(a) It was suggested in this case, that money in a trunk to pay travel- ling expenses might be included ; but that was doubted, as men usually carry money to pay travelling expenses about their per- sons, and not in their trunks or boxes ; and no contract can be implied beyond such things as are usually carried as baggage. An agreement to carry ordinary baggage may well be implied from the usual course of business ; but .the implication cannot be at all extended beyond such things as the traveller usually has with him as a part of his baggage. All articles which it is usual for persons travelling to carry with them, whether from necessity, or for con- venience, or amusement (|such as a gun, or fishing tackle^, fall within the term baggage.^ (6) So likewise does money, not ex- ' Pardee v. Drew, 25 Wend. 459. ^ Orange County Bank u. Brown, 9 Wend. 85 ; and see Gibbon v. Paynter, 4 Burr. 2298 ; Batson u. Donavan, 4 B. & Aid. 340. ° Orange County Bank «. Brown, «J. sup. (a) Whitmore v. Steamboat Caroline, 20 Misso. 513 ; Doyle u. Kiser, 6 Ind. 242 ; Hutchings v. Western R., 25 Ga. 61 ; Davis v. Michigan E., 22 111. 278. A carrier is not liable for jewelry carried as mercbandise in a traveller's trunk. Kichards v. Westcott, 2 Bosw. 589. Nor for jewelry intended as presents for friends, nor for masonic regalia used by the passenger in his travels, nor for en- gravings. Nevins a. Bay State Steamboat Co., 4 Bosw. 225. Nor for silver-ware. Bell V. Newton, 4 E. D. Smith, 59. (J) Pannelee v. Fischer, 22 111. 212. In considering the amount of baggage a traveller may reasonably have, the jury may take into view his residence, busi- ness, station in life, the place from which he came, and that to which he is going. Nevins v. Bay State Steamboat Co., 4 Bosw. 225. Pistols are included in the term baggage. Woods v. Devin, 13 HI. 746. So is a revolver. Davis v. Michi- gan K., 22 111. 278. Whether a bed, pillows, &c., are baggage, has been held a question for the jury. Ouimit v. Henshaw, 35 yt. 604. 102 LAW OF CAKmERS. [CHAP. IV. ceeding a reasonable amount ; ^ (a) and a watch has been held to be a part of a traveller's baggage, and his trunk a proper place in which to carry it.^ (6) § 116. The Supreme Court of Pennsylvania have considered that it is not obvious in what manner the court can restrict the quantity or value of the articles that may be deemed proper or useful for the ordinary purposes of travelling ; because in the na- ture of things it is susceptible of no precise or definite rule ; and when there is an attempt to abuse the privilege, a court must rely upon the intelligence and integrity of the jury to apply the proper corrective. The defendants in this case requested the court to charge the jury that they (the defendants) having had no notice that the trunks in question conizmeA jewelry, or other articles of greater value than ordinary wearing apparel, they were not liable for such articles of jewelry ; but the court refused, and the jury found for the plaintiff; and judgment was afiBrmed in error.* § 117. The Common Law knew no distinction in respect to the liability of a common carrier, between a letter and any other thing ; and a private postmaster was precisely in the situation of any oth- er carrier.* But the statute of 12 Charles II. having established a general post-office, and taken away the liberty of forwarding let- ters by private post,^ it was thought that an alteration had been made in the obligation of the postmaster-general ; and, in the case of Lane v. Cotton,^ three judges determined, against the well-sup- ported opinion of Chief Justice Holt, that the postmaster was not answerable for the loss of a letter with exchequer bills in it ; and that the postmasters enter into no contract with individuals, and receive no hire, like common carriers, in proportion to the risk and value of the letters under their charge, but only a general ' Weed V. Schenectady K., 19 Wend. 534 ; Cole u. Goodwin, lib. sup. ' Jones V. Voorhees, 6 Ohio, 358. See Pudor v. Boston R., 26 Maine, 458 ; and post, § 475, et seq. ' McGill V. Rowland, 3 Barr, 451. * Jones on Bailm. 109, 110. ' Garth. 487 ; 12 Mod. 482. • Lane v. Cotton, 1 Ld. Raym. 546. (a) Illinois Central R., v. Copeland, 24 111. 332. A traveller on a sea voyage may carry a reasonable sum of money in his trunk. Duffy v. Thompson, 4 E. D. Smith, 1 78 ; Merrill v. Grinnell, 30 N. Y. 594. (6) McCormick v. Hudson River R. 4 E. D. Smith, 181. The same rule ap- plies to such articles of jewelry as are ordinarily worn on the person. lb. CHAP. IV.] POSTMASTERS AND MAIL CONTEACTOES. 103 compensation from government. The same question was at a later period discussed in a case brought against the postmaster- general, to recover the amount of a bank-note stolen by one of the sorters of letters, when the court adhered to the doctrine of the three judges in the above-named case, against the opinion of Lord Holt.i Lord Mansfield in this case held that there was no analo- gy between the postmaster and a common carrier ; because the postmaster has no hire, enters into no contract, and carries on no merchandise or commerce ; the post-ofiice is a brancli of revenue, and a branch of police, created by act of Parliament ; as a branch of revenue, there are great receipts, but there is likewise a great surplus of benefit and advantage to the public, arising from the fund ; as a branch of police, it puts the whole correspondence of the country (for the exceptions are very trifling) under government, and intrusts the management and direction of it to the crown. § 118. In the United States, it is also held that the postmas- ters are merely public officers appointed by, and responsible to, the government ; that the contracts made by them ofiicially are public contracts binding on the government, but not on themselves personally.^ § 119. But a postmaster is considered to be liable in a private action for damages arising from misfeasance, or for negligence, or want of ordinary diligence in his office, in not safely transmitting a letter, although not liable like a common carrier for the safe conveyance of a letter from his post-office to another. His liabil- ity, it was considered, is more like that of a warehouseman ; tliat is, he is liable for no other losses or injuries than those arising from ordinary neglect on his part. Therefore, where a letter, which contained bank-notes, and which was mailed at a town in Ohio, and directed to the plaintiff at New Berlin, in Pennsylvania; from which, by regular course of mail, it was to be sent to the distributing office in Chambersburg ; and the evidence went to show that the letter had been purloined by an assistant in the post-office at Pittsburg ; it was held that the postmaster at Pitts- burg was not liable for the loss.^ ' Whitfield V. De Spencer, Cowp. 754. ^ Dunlop V. Manroe, 7 Cranch, 242. A postmaster is not liable for money con- tained in a letter delivered at the post-office in his absence, and afterwards lost. Bolan V. Williamson, 2 Bay, 551. ' Schroyer v. Lynch, 8 Watts, 453. See CoUett v. London E., 16 Q. B. 984, 6 Eng. L. & £q. 305. 104 LAW OP CABKIERS. [CHAP. IV. § 120. A deputy postmaster, or clerk in the office, is answer- able in a private suit for misconduct or negligence ; as for wrong- fully detaining a letter an unreasonable time.^ But the assistants of deputy postmasters do not stand .in the situation of servants to them ; and, therefore, a deputy postmaster is not liable for the act of his assistant in purloining money, unless, perhaps, he re- tains him after having found him to be unfaithful.^ The deputy is not, therefore, liable for the consequences of any losses, delin- quencies, or embezzlements of his official assistants, if he exercises due care and reasonable superintendence over their official con- duct, and he has no reason to suspect them of any negligence or malconduct.8 § 121. It has been held in Ohio, that a mail contractor is not liable to the owner of a letter containing money transmitted by mail, and lost by the carelessness of the contractor's agents in car- rying the mail ; and the reasons assigned by the court were that a mail carrier has no contract with those who transmit articles by the piiblic mail, and he receives no fee or reward from them ; that his contract is with the government of the United States for the performance of acts in the execution of a public function ; he is remunerated by the government ; and the duty he takes upon himself by the contract he is sworn to perform. So far, then, as the transmission of the mail is concerned, a mail contractor is a public agent, and, as such, only responsible.* § 122. There is another kind of property for the carriage of which persons do not become liable as common carriers. In re- spect to the carriage of slaves, the question has more than once arisen, how far the carrier of them incurs the Common-Law respon- sibility. In Boyce v. Anderson, in the Supreme Court of the United States,^ it was held that the law regulating the responsi- bility of common carriers does not apply to the case of carrying intelligent beings, such as negroes. The carrier has not, and cannot have, the same absolute control over them that he has over inanimate matter ; and in the nature of things, and in their char- acter, such human beings are passengers. Therefore the respon- ' Rowning v. Goodchild, 3 Wils. 443 ; Stork v. Harris, 5 Burr. 2709. ' Schroyer v. Lynch, wft. sup. • Story on Bailm. § 463. • Conwell V. Voorliees, 13 Ohio, 523. ' Boyee v. Anderson, 2 Pet. 150 ; and see Stokes v. Saltonstall, 13 lb. 181. CHAP. IV.] CARRIAGE OF SLAVES. 105 sibility of the carrier should be measured by the law which is ap- plicable to passengers, rather than that which is applicable to the carriage of common goods. In South Carolina it has also been held, that there is a manifest distinction between the liability of the carrier with respect to the transportation of a slave and a bale of goods ; and that the strictness of the Common-Law rule of lia- bility is not, from the nature of the subject, applicable to the car- riage of the former.^ The Supreme Court of Alabama have held, on the authority of the above case of Boyce v. Anderson, that the strict rule of the Common Law in respect to the responsibility of common carriers does not apply to the conveyance of slaves as passengers by a carrier for hire ; and that for such passengers a carrier is liable only for ordinary neglect. But if slaves have paid mo hire for their passage, the carrier would only be responsible in the case of gross neglect ; in other words, a less degree of negli- gence makes a carrier liable to a passenger who has, or is bound to pay his hire, than is required to make him responsible to one from whom he is to receive no reward.^ 1 Clark V. McDonald, 4 M'Cord, 223. ' Williams v. Taylor, 4 Port. Ala. 234. The owners of a boat are not liable for the loss of a slave, employed as one of the boat hands, unless the loss was oc- casioned by the wilful misconduct or culpable negligence of the captain. McDan- iel V. Emanuel, 2 Kich-. 455. Where a slave was hired to work on a railroad, and the slave, with the knowledge of the conductor, went on the cars and was carried beyond the place at which his services were that day required, and in jumping from the cars while in motion was killed ; it was held that the company were liable to the owner of the slave for the loss. Duncan v. Railroad Company, 2 Bich. 613. It has been held in Tennessee that, wh6re a hired slave dies or runs away, the fact of such death or running being proved by the hirer, the owner must prove that negligence intervened to charge the hirer with the loss. Kun- yan v. Caldwell, 7 Humph. 134. So in Kentucky, Hawkins v. Phythian, 8 5. Mon. 515; Swigertw. Graham, 7 Ibid. 662. (a) (a) See Sill v. South Carolina R., 4 Rich. 154 : McClenaghan v. Brock, 5 Rich. 17. 106 LAW OF CAREIEKS. [CHAP. V, CHAPTER V. OF THE DUTY OF A COMMON CARRIER TO RECEIVE GOODS, AND OF THEIR DELIVERY TO HIM AS THE COMMENCEMENT OF HIS RESPONSIBILITY. § 123. As has been already stated, a common carrier is distin- guished from a private carrier both in respect to the duty which the law imposes upon him, in consequence of the public employ- ment he has voluntarily assumed, to receive goods which are of- fered for carriage, and in respect to his responsibility for their safety after they are in his custody.^ § 124. In respect to the first-mentioned distinction, the law has been lately laid down by the Supreme Court of the United States, that a common carrier " is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment ; and is liable to an action in case of refusal." ^ (a) But in order to render a carrier liable in an ac- tion for refusing to take charge of goods, there must be tendered him a reasonable compensation. (b^ Indeed, no person is acom- ' See ante, § 67. ' New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344 ; and see post, §§ 590, 612; Crouch v. Great Northern E., 11 Exch. 742, 34 Eng. L. & Eq. 673; Merriam v. Hartford K., 20 Conn. 354 ; Jordan v. Fall River R., 5 Cnsh. 69 ; Morton v. Tibbett, 15 A. & E. 428. That a common carrier may prescribe reasonable conditions on which he will receive the goods, see post, § 234, et seq. (a) And there is no distinction in this respect between the liability of a com- mon carrier, whose business is entirely within the country, and that of a carrier who transports goods to a place without the country. Crouch i>. London R., 14 C. B. 255, 25 Eng. L. & Bq. 287. Where a carrier refused to take goods consigned to A for sale, it was held that A had no cause of action against the carrier. Lafaye v. Harris, 13 La. Ann. 553. (6) Galena R. v. Roe, 18 111. 488. See Shipper v. Penn. R., 47 Penn. State, 338. In Lamar v. New York S. Nav. Co., 16 Ga. 658, the inquiry was whether the freight asked was the usual freight. And in Fitchburg R. v. Gage, 1 2 Gray, 393, it is held that a common carrier is not obliged to transport goods of the same kind for all persons at the same rates ; that each person may be charged what is reasonable in each case ; that " if for special reasons, in isolated cases, the carrier sees fit to stipulate for the carriage of goods and merchandise of any class for in- CHAP, v.] THEIE DUTY TO EKCEIVE GOODS. 107 mon carrier in the sense of the law who is not a carrier for hire ; and it is the reward which renders him liable ; as Lord Coke says, the carrier " hath his hire, and thereby implicitly undertaketh the safe delivery of the goods delivered to him." ^ Still, it is not re- quired that the reward to be tendered should be a fixed sum ; it being sufficient if it be in the nature of a quantum meruit to or for the benefit of the bailor ; ^ yet if the party ofiering the goods avers ' Co. Litt. 89 a. ' Kogers ». Head, Cro. Jac. 262. See post, Ch. IX. Assumpsit against a com- mon carrier; and upon motion in arrest of judgment, for that he was not charged as a common carrier ; and that the promise was not for any certain sum, but only, that he would, ratlonabiliter, content him ; non cdocatur, " for the consideration is sufficient, because a carrier may demand, and the other is bound to pay, as much as is reasonable. Bastard v. Bastard, 2 Show. 81. Action against a carrier for loss of a box ; upon motion in arrest of judgment, because no particular sum had been agreed upon for the carriage, but only that a reasonable reward was to be paid, held well enough ; for as in such case a carrier may maintain a quantum meruit, he is as much liable as if there is a particular agreement for a sum certain. S. P. admitted in Lovett v. Hobbs, lb. 129 ; Boulston v. Sanderford, Skin. 279 ; Jackson v. Kogers, 2 Shower, 328; Riley v. Home, 5 Bing. 217; Macklin v. Waterhouse, lb. 212; HoUister v. Nolen, 19 Wend. 234; Cole v. Goodwin, lb. 251 ; Bac. Abr. Carriers, B. ; 2 Kent, Com. 598 ; Story on Bailm. § 508. Carrier liable to be sued if he refuse to carry goods for the common reward. Harrill v. Owens, 1 Dev. & Bat. 273 ; Anon v. Jackson, 1 Hayw. 14. " It is exceedingly clear that no person is a common carrier, in the sense of the law, who is not a carrier for hire ; that is, who does not receive, or is not entitled to receive, any recompense for his services. The known definition of a common carrier, in all our books, fully establishes this result. If no hire or recompense is payable ex debito justitice, but if something is bestowed as a mere gratuity or voluntary gift, dividuals for a certain time or in certain quantities for less compensation than what is the usual, necessary, and reasonable rates, he may undoubtedly do so, without thereby entitling all other persons and parties to the same advantages and relief." In England railway companies are prohibited by statute from giving any un- due or unreasonable preference or advantage to or in favor of any particular per- son or any particular description of traffic. 17 & 18 Vict. c. 31. See In re Kan- some, 1 C. B. N. 8. 437, 38 Eng. L. & Eq. 231 ; In re Oxlade, 1 C. B. N. 8. 454, 40 Eng. L. & Eq. 234 ; In re Marriott, 1 C. B. N. s. 499, 40 Eng. L. & Eq. 260 ; Caterham R. v. London R., 1 C. B. N. s. 409, 40 Eng. L. & Eq. 259 ; Baxendale V. London R., Law Rep., 1 Ex. 137 ; Garton v. Bristol R., 4 H. & N. 33 ; Baxen- dale V. North Devon R., 3 C. B. N. 8. 324 ; In re Harris, lb. 693 ; In re Jones, lb. 718; Baxendale v. Eastern Counties R., 4 C. B. N. 8. 63; In re Ransome, lb. 135 ; In re Cooper, lb. 738 ; Piddington v. Southeastern R., 5 C. B. N. s. Ill ; In re Baxendale, lb. 309 ; Garton v. Great Western R., lb. 669 ; In re Nicholson, lb. 366 ; In re Garton, 6 C. B. sr. s. 639 : Bennett v. Manchester R., lb. 707. 108 LAW OF CAREIEES. [CHAP. V. and proves his readiness and willingness to pay the money for the carriage, it will, it seems, be considered as eqnivalent to a tender .1. Payment may also sometimes be inferred ; as, in a suit against stage owners for loss of baggage, payment of the fare need not be expressly proved, inasmuch as it may be inferred, without violent implication, it being seldom if ever neglected.^ § 125. Nevertheless, there may be reasonable grounds for a refusal by a carrier to take the goods, and such grounds as will, if supported, be a legal defence to an action for the non-carriage of the goods. If a carrier refuses to take charge of goods because his coach is full, it is a reasonable ground of refusal.* In the words of Mr. Justice Best, " he must take what is offered to him, to carry to the place to which he undertakes to convey goods, if he has room for it in his carriage." * So also if he has no convenient means of carrying the goods offered with security ; ^ or because the goods are of a nature which will at the time expose them to then, although the party may transport either persons or property, he is not in the sense of the law a common carrier ; but he is a mere mandatary or gratuitous bailee ; and of course his rights, duties, and liabilities are of a very different na- ture and character from those of a common carrier. It is not necessary that the compensation should be a fixed sum, or known as freight ; for it will be sufficient if a hire or recompense is to be paid for the service, in the nature of a quantum meruit, to or for the benefit of the company." Per Story, J., in Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 35. '■ Story on Bailm. § 508 ; Pickford v. Grand Junction R., 9 Dowl. 766. And see post, § 356, et seq., and post, § 418. ' M'Gill V. Rowland, 3 Barr, 451. ' Action against a coach-master, for refusal to carry goods ; but evidence being given that the. coach was full, wherefore the defendant denied to take charge of the goods, it was agreed to be a good answer ; " for if an hostler refuses a guest, his house being full, and yet the party says he will shift, &c. ; if he be robbed the hostler is discharged." Lovett v. Hobbs, 2 Show. 127. * Riley v. Home, 5 Bing. 217. It is agreed, says Cowen, J., in Cole v. Good- win, by all the books, that whHe the carrier enjoys the privileges of a common carrier, it is a duty he cannot escape in any form, to receive goods, if he has room to carry them, for a reasonable reward ; and the reasonable reward may be set down as the accustomed reward for like services. Cole v. Goodwin, 19 Wend. 261 ; White v. Toncray, 9 Leigh, 347 ; Robins ex parte, 7 Dowl. 566. ' ' Case against a defendant, a common carrier, for refusing to carry a pack, though offered his hire ; and held by the Lord Jeffries, " that the action is main- tainable as well as it is against an innkeeper for refusing a guest, being tendered satisfaction for the same. Note, it was alleged and proved, that he had conven- ience to carry the same, and the plaintiff had a verdict. Jackson v. Rogers, 3 Shower, 827. CHAP, v.] THEIR DUTY TO KECEIVE GOODS. 109 extraordinary danger or popular rage ; ^ (a) or because the goods are not of a sert which he is accustomed to carry ; ^ and if the owner of the goods will not tell the carrier what his goods are, and what they are worth, the carrier may refuse to take them, but if he does take charge of them, he waives the right to know their contents and value. ^ (b) So if the goods are brought at an un- reasonable time.* And a carrier, moreover, is not bound to re- ceive goods until he is ready to engage in their transit.^ § 126. And it has been considered in this country that the rule of the Common Law that a person who holds himself out as a com- mon carrier is obligated to take employment at the current price will not apply, unless the carrier has a particular route between certain fixed termini ; and that, although in England the duty of the carrier to carry at request upon a particular route is the cri- ' Case against a common carrier for so negligently carrying wheat that it was seized by a mob during riots. But as the defendant had been prevailed upon to send it by a private boat, and not in his usual course of carriage, at the express request of the plaintiff, the court held that it was a question of fact for the jury to find if the corn had been put on board according to the usual course of dealing with a common carrier ; and the jury having found that it was not a transaction in the common course of trade, it was to be considered as a charge received un- der such circumstances, that if the defendant had been apprised of them, it is clear he would not have contracted to receive them aa a common carrier ; and that there was a tacit stipulation that he should not be answerable for any dam- age which might arise from the mob ; without which no reasonable man would have undertaken for the carriage of the goods. Edwards v. Sherratt, 1 East, 604. ' See ante, § 99, et seq., axii post, § 209, et seq. ' Great Northern K. v. Shepherd, 8 Exch. 30, 14 Eng. L. 8e Eq. 367. And see post, § 356. ' Story on Bailm. § 508 ; Pickford v. Grand Junction R., 12 M. & W. 766 ; and see post, § 136. ' lb.; Lane u. Cotton, 1 Ld. Raym. 652, 1 Comyns, 105. In England it is considered that railway companies are not in general bound to provide means of carrying every possible description of goods, but that they have a discretionary power in this respect. The Liverpool & Manchester Co., however, constitutes an exception. See Stat. 7 Geo. 4, c. 29, § 138 (Local and Personal). Waif. Sum. Law of Railroads, 304. (a) See Pearson v. Duane, 4 Wall. 605, cited post, § 532, note. (6) The text that a carrier has a right to refuse to carry goods unless the owner of the goods will teU him what the goods are is supported by a dictum of Best, C. J., in Riley v. Home, 5 Bing. 217. But in Crouch v. London R., 14 C. B. 255, 25 Eng. L. & Eq. 287, a plea that the carrier asked what the packages contained, and the owner refused to tell, was held bad. 110 LAW OF CARKIEBS. [CHAP. V. terion of the profession, it should not be so in this country.. At least it has been so considered in so far as it relates to the State of Pennsylvania. C. J. Gibson, in delivering the opinion of the Supreme Court of that State, in Gordon v. Hutchinson,^ held that rules which have received their form from the business of a peo- ple whose occupations are definite, regular, and fixed, must be applied with much caution and no little qualification to the busi- ness of a people whose occupations are more vague, desultory, and irregular, than is the case in an old country, and one comparative- ly limited in point of territory, like England. In Pennsylvaniaj he said, there were no carriers exclusively between particular places before the establishment of public lines of transportation ; and, according to the English rule, there could have been no common carriers, for it was not pretended that a wagoner could be compelled to load for any part of the Continent ; and nothing, he said, was more common formerly than for wagoners to lie by, in Philadelphia, for a rise of wages. He admitted that the policy of holding the carrier liable as an insurer was more obviously dic- tated by the solitary and mountainous region through which his course for the most part lay, than it is by the frequented thorough- fares of England. § 127. In the above case reference is made to the extraordinary risk of transporting through a region " solitary and mountainous." Now the Common Law has considered it reasonable, that the car- rier should, in cases of extraordinary risk, have the power of con- tracting by special contract upon extraordinary terms.^ It is laid down, that if the rules of commercial law impose upon the carrier the responsibilities of an insurer, his reward ought in every case to correspond with the greater warranty undertaken, and additional precautions necessary to be provided by him.* " As the law makes the carrier an insurer," says Mr. J. Best, " and as the goods he carries may be injured or destroyed by many accidents, against which no care on the part of the carrier can protect them, he is as much entitled to be paid a premium for his insurance of their delivery at the place of their destination as for the labor and ex- ' Gordon v. Hutchinson, 1 Watts & S. 285 ; and see the decision in this case, and the views of Chief Justice Gibson, more fully stated, ante, § 70. See also Steinman v. Wilkina, 7 Watts & S. 466. ' Jeremy on Carr. 39, 42; Story on Bailm. § 549; post, Chap. VII. " Jeremy ub. sup.; Gibbon v. Faynton, 4 Burr. 2301. CHAP, v.] COMMON CAERIEES OF MONET. Ill pease of carrying them there." ^ If a person send to a carrier's office t<); know his rate of charges, the carrier is bound by the rep- resentation there made by his clerks ; and if the goods are sent Tipon the faith of such representation, the carrier cannot charge more than the sum named, although the clerk may have inadver- tently fallen into a mistake .^ § 128. The compensation of companies incorporated for the purpose of acting as common carriers is sometimes subject to rules imposed by the legislature ; and acts of the legislature con- ferring privileges upon such a company, and professing to give the public certain advantages in return, are to be construed strict- ly against the company and liberally in favor of the public. By the acts of Parliament, under which the Great Western Railway Company in England was incorporated, it was provided that the charges for the carriage of goods should be reasonable and equal to all persons, and that no reduction or advance should be made, either directly or indirectly, in favor of or against any particular ' Riley v. Home, 5 Bing. 217. Where a carrier was to carry a bag of gold across Uounslow Heath, it was thought that h'e was justly entitled to charge a rate of remuneration proportioned to the increased risk he run by so doing. Ty- ler V. Morrice, Garth. 486 ; and see Sheldon v. Robinson, 7 N. H. 157 ; Orange County Bank v. Brown, 9 Wend. 114 ; HoUister v. Nowlen, 19 lb. 234, 241. ' Winkfield v. Packington, 2 Car. & P. 600. In England, a railway company, under the provisions of the act of incorporation, have a right to fix their own charges for the carriage of goods, subject only to the conditions imposed by their act. It usually forms part of these conditions that the charges shall be reasonable and equal to all persons, or equal under the like circumstances ; and that no favor shall be shown thereby to one person or description of persons at the expense of another. The criterion for determining how far a charge is reasonable or not, is to consider the trouble, expense, and responsibility attending the receipt, car- riage, and delivery of the goods in question. Where these are equal, the charge should be the same ; where they vary, the charge may fairly be varied in the same proportion. For instance, for small parcels more may fairly be charged by the company than a proportionate part, according to weight, of the price of larger parcels of the same commodity, by reason of the greater trouble in receiving, de- spatching, and delivering them, and their exposure to a much greater risk of ab- straction and loss. But if a number of small parcels are united in one large pack- age, and in that state delivered to the company, consigned to one person, the trouble and responsibility are reduced to much the same degree as if all the arti- cles contained in the package were the property of the same owner and intended to be delivered to him, the only difierence being, that in the former case — sup- posing a misdelivery or other conversion of the goods by the agents or servants of the company — the company would be liable to several actions of trover instead of one. Waif. Sum. Law of Railways, p. 317. 112 LAW OF CARRIERS. [CHAP. V. person. The company acted themselves as carriers for the public; and issued certain scales of their charges for carriage of goods, including the collection, loading, unloading, and delivery of par- cels ; and they also carried goods /or other carriers, to whom they made certain allowances as an equivalent for the trouble of the collection, ) See cases cited ante, § 90. 136 LAW OF CAEEIEBS. [CHAP. VI. negligence or carelessness, was not within the exception of a loss caused by the " act of God." ^ § 168. It was, however, contended in the Supreme Court of Connecticut, in the case of Hale v. New Jersey Steam Navigation Company, that there was no case where the liability of the carrier is extended to fire on the high seas. But if the principle governs such cases, then the court thought, it is to be supposed, the rea- son such cases are not to be found, is, that they have not oc- curred, or were not contested ; and if the carrier is subjected for the loss. of goods burnt on land, where he was in no fault, the court saw no reason for exempting the carrier at sea, under like circumstances. In this case, the plaintiff claimed, that, on the 10th of January, 1840, the defendants, being owners of the steam- boat Lexington, which had for several years been one of the line of boats transporting goods for hire from New York to Stonington and Providence, for all persons who chose to employ them, under- took to transport two carriages belonging to the plaintifiF to Bos- ton, oV to Providence, on the way to Boston ; that on the night of the 10th of January, said boat, on her passage from New York, in Long Island Sound, near Huntingdon, was destroyed by fire, to- gether with said carriages ; and the plaintiff claimed to recover of the defendants, as common carriers, for the value of the car- riages, upon the ground that they were not destroyed by the act of God or the public enemy. He was sustained in this ground by the court, who held the defendants liable.^ § 159. In Patton v. Magrath, it was argued, that the naviga- tion of steamboats being caused by fire, made them so liable to ' Gilmore v. Carman, 1 Smedes & M. 279 ; and see Harrington v. M'Shane, 2 Watts, 443. The Supreme Court of Alabama have ruled, on two occasions, that acts of God, which constitute a legal excuse for the loss of or damage to goods, by the sinking or destruction of a steamboat, must appear to be the immediate, not remote, cause of the loss or damage ; and must be beyond the prevention or con- trol of human prudence. Jones v. Pitcher, 3 Stew. & P. 135; Sprowl v. Kellar, 4 lb. 382 ; McCall v. Brook, 5 Strob. 119. (a) ' Hale V. New Jersey Steam Nav. Co., 15 Conn. 539. See also New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. (a) A severe storm producing an unusually low tide, and causing a carrier's barge to strike against a timber projecting from the virharf, so low as in ordinary tides to be no cause of injury, will not excuse 4he carrier for the loss of goods oc- casioned by the timber piercing the vessel. New Brunswick Steamboat Co. i'. Tiers, 4 Zab. 697. CHAP. VI.] EESPONSIBILITY OF COMMON CAEEIEES. 137 destruction by that element, that this danger ought to be classed as the act of. God. But Richardson, J., in speaking for the court, said, in reply to this argument, that " the loss by fire, which, oc- curring in another boat, renders the owners liable, will, in like manner, make liable the owners of a steamboat propelled by fire." But he added, that the owners would not be liable if by a public notice they declared they would not be liable in such an event ; or if the bill of lading expressed, that they would not be liable for accidents by fire.^ Thus, in other words, saying, that the Owners might divest themselves of their responsibility in such an event, by special contract, a subject which will receive attention in a subsequent chapter. In a later case, in South Carolina, which was an action for the loss by fire of a number of bales of cotton on board the defendant's boat, the court, in giving their opinion, said, that if there is neither usage nor special contract to protect or exempt the defendants from the general liability of common carriers for such losses, then the plaintiff's case would be too plain for a difference of opinion. And the court added, that, upon the well-established principles of the law of common carriers, the defendants were liable for all such losses by fire.^ § 160. The freezing of our canals, rivers, and arms of the sea, on the other hand, is not an interposition of human agency, but is an interposition of the vis major, and such an one as excuses a loss arising from the delay of a common carrier by water. But the carrier is nevertheless bound to exercise ordinary forecast in anticipating the obstruction ; must use proper means to overcome it ; exercise due diligence to accomplish the transportation he has undertaken as soon as the obstruction ceases to operate ; and, in the mean time, must not be guilty of negligence in the care of the property ;^ (a) nor deviate from the course of the voyage pre- scribed, for the reason of the obstruction by ice.* The owners of a vessel lying in the river undertook to carry goods from Norwich to New London, and in the passage the river was obstructed by ' Patton V. Magrath, Dudley, S. C. 159, recognized and approved in Swindler V. Hilliard, 2 Ricli. 286. ' Singleton v. Hilliard, 1 Strob. 203. » Bowman v. Teall, 23 Wend. 306; Parsons v. Hardy, 14 lb. 215; Harris v. Kand, 4 N. H. 259 ; and see Wallace v. Vigus, 4 Blackf. 260. ' Hand v. Baynes, 4 Whart. 204; Crosby v. Fitch, 12 Conn. 410. (a) See West v. Steamboat Berlin, 3 Iowa, 532. 138 LAW OP CARRIERS. [CHAP. VI, ice, which was formed during the night next preceding the sailing of the vessel from Norwich, whereby the vessel was injured and became leaky, and the goods were spoiled. It was held that the owners of the vessel were liable as common carriers. But, in, this case, negligence and insufficiency of the vessel were charged upon the defendants, and the verdict of the jury was for the plaintiff, though they were instructed by the court, that the de- fendants were not liable as common carriers for injuries arising by the act of God.^ (a) § 161. In a case against a carrier for an injury done to a cargo by steam, it appeared that the steam escaped through a crack in the steam-boiler, occasioned by the frost (the vis major) ; and the court held, that at that season of the year, in which such injuries by frost are likely to occur, it is gross negligence in the carrier to fill up his boiler over-night, without keeking up a suitable fire to prevent such accidents,^ Here also was the " intervention oC man," viz., the misconduct and negligence of the carrier. (6) § 162. The defendant allowed his wagon, in which he was car- rying goods, to stick fast iii a fording creek, and the water sud- denly rising, damaged the goods ; and he was held liable for the damage.* The damage was from the act and negligence of man ; and if a common carrier " goes by ways that be dangerous, he shall stand charged for his misdemeanor " ; and so, " if he over- charge a horse, whereby he falleth into the water, or otherwise so that his stuff is hurt or impaired, then he shall stand charged for his misdemeanor " ; and so, " if he drive by night, or in other inconvenient time." * § 163. If the goods have been wetted, destroyed, or swept away by rains and floods, the circumstances attendant thereupon must be regarded, in order to determine whether it has been ocoa- ' Richards v. Gilbert, 5 Day, 415. ' Siordet v. Hall, 4 Bing. 607. ' Campbell v. Morse, Ha,rper, 468. • Doct. & Stud. Dial. 2, c. 38 ; Noy's Maxims, c. 43 ; Boyle v. M'Laughlin, 4 Harris & J. 291. (a) If goods are injured by freezing, the carrier is liable if he could have pre- vented them from freezing by the exercise of due care and diligence. Wing »■ New York R., 1 Hilton, 235. (6) A carrier is liable for a loss caused by the explosion of a steam-boiler. Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, nom. The Bark Edwin, 1 Sprague, 477. CHAP. VI.] EESPONSIBILITY OF COMMON CARRIERS. ' 139 sioned by the act of God, or the act, misconduct, or negligence of man. (a) A common carrier undertook to transport, both by land and by water, a quantity of flour from Baltimore to Phila- delphia, and at an intermediate part of the route the flour was put upon an elevated place on a wharf, wholly uncovered and un- protected from the weather ; and while it ■ lay there a freshet arose, by which a great part of the flour thus exposed was swept off. In an action to recover damages, the defendants insisted that the loss was by the act of God, and ui-ged in their defence, their inability to procure warehouse-room for the storage of the flour, owing to tlie great quantity of commodities transported along tlie line, in consequence of the coasting trade being cut off by the public enemy. But the court held the defendants liable for the loss so sustained, because they knew the state of public affairs, and it was in consequence of which the line of communi- cation in question was established, and from the same cause it be- came unusually crowded and profitable ; because the defendants knew, or were bound to know, the extent and capacity of their means of transportation, and because the sufficient capacity of their warehouses at the point where the loss happened they un- dertook for, and consequently insured.' (6) § 164. A wagoner undertook to carry and deliver certain pack- ages of merchandise which he received in Cincinnati to a person in Crawfordsville in Indiana, and in an action against him for au injury done to the goods, it was proved, that he left the direct and principal road from the one place to the other, taking a more circuitous one which led past his own dwelling ; that after the de- fendant had so deviated from the usual route, he drove on to a ' Boyle V. McLaughlin, 4 Harris & J. 291. (a) In Philleo v. Sanford, 17 Texas, 227, it is said : " It cannot be pretended that goods may not be conveyed securely in a covered wagon, without being ex- posed to injury from rain ; and he who undertakes their transportation in this mode as a common carrier insures their carriage securely and without injury from any such cause." (i) In Read v. Spaulding, 5 Bosw. 395, 30 N. T. 630, the goods were damaged by an extraordinarily high tide at Albany. There had been great delay in the transportation of the goods, and if proper care had been used the goods would have been beyond Albany at the time of the flood. The carrier was held liable, on the ground that the delay was similar in effect to a deviation, and rendered the carrier liable as an insurer. See contra, Denny v. New York R., 13 Gray, 481 ; Morrison v. Davis, 20 Penn. State, 171. 140 LAW OF CAREIEES. [CHAP. VI. bridge wliich gave way, thereby upsetting the wagon, and throw- ing the goods into the water, whereby they were injured. It also appeared in evidence, that the bridge was considered safe before the accident ; that the road taken by the defendant was preferred by some to the more direct and more generally travelled way to Crawfordsville, but wagoners never used it. The court held the carrier responsible for the damage, unless he stood excused on the score of inevitable accident ; which, the court said, was so far from being the case, that the accident happened in consequence of his own improper conduct; and a desire to go to his own house, which was his inducement to deviate, was no legal excuse for his doing so.^ (a) So, if a carrier takes the most dangerous of two modes of conveyance around a fall, he does so at his own risk .2 § 165. Ferrymen, if they venture out at an improper season, are most unquestionably liable ; but if a sudden gust of wind or storm arise, and an injury is sustained, after the ferryman is under way, then it is clear the law will not charge him ; because man cannot always foresee storms and tempests, and guard against them.^ The defendant kept a ferry across the Missouri River, and the plaintiff applied to cross the river. The ferry-boat was brought to the bank, and fastened by a chain to a stake driven into the bank, and the driver of the plaintiff's wagon was directed to drive into the boat. The horses entered and drew in the fore wheels of the wagon ; but when the hind wheels struck the boat, the stake was broken, and the boat receded from the shore, the hind wheels of the wagon being out over the end of the boat. The driver, being urged thereto by several persons on the shore, dis- mounted and cut his fore horses loose from the wagon, and backed the wagon out of the boat into the water. One of the hind horses was drowned, and it was held, the loss was not occasioned by the act of God. In this case the jury found, that by the negligence of the ferryman he had caused the accident to happen, and that he thereby produced the state of alarm in which the driver impru- dently backed his wagon into the river. The court said, that ' Powers V. Davenport, 7 Blaokf. 497 ; and see Davis v. Garrett, 6 Bing. 716. ' Lawrence w. M'Gregor, Wright, 193. » Cook V. Gourdin, 2 Nott & McC. 19. (a) See The Schooner Sarah, 2 Sprague, CHAP. VI.] RESPONSIBILITY OF COMMON CAREIEES. 141 neither the plaintiff nor the driver of his wagon could be supposed to have the same presence of mind on such an occasion as the ferryman .1 § 166. Carriers by water have, from a very early period, been in the habit of making special acceptances of goods to be carried for hire, and guarding themselves by the bill of lading or contract of affreightment, from losses occasioned by " perils of the seas." These words certainly denote the natural accidents peculiar to that element, and from losses thereby occasioned, the common carrier by water is, and always has been, exempt by the Common Law.^ (a) As if, for example, a carrier vessel is taken in tow by a ship of war, and in order to keep xip she is obliged to have recourse to an extraordinary press of sail in a gale of wind, and thereby her cargo is injured, it is a loss by the perils of the sea.** But what is the precise import of this phrase is not, perhaps, exactly settled. It has been supposed, that by these words are properly meant no other than inevitable perils or accidents upon that element, and ' Pomeroy v. Donaldson, 4 Misso. 36. In the Year Books (22 Ass. 41), there is the case of an action against a waterman for overloading his boat, so that the plairitiif's horse was drowned. It was agreed, " that if he had not surcharged the boat, although the horse was drowned, no action lies, notwithstanding the as- sumpsit ; but if, he surcharged the boat, otherwise ; for there is default and negli- gence in the party." The court said : " It seemed, that you trespassed when you surcharged the boat, by which the horse perished." 1 EolL Abr. 10, pi. 18. ^ Abbott on Shipp. 5th Am. edit., p. 470; Story on Bailm. § 512.' And, that the words " perils of the sea " apply to all those natural perils and operations of the elements which occur without the intervention of human agency, and which the prudence of man cannot foresee, nor his strength resist. See 3 Kent, Com. 300 ; Blythe v. Marsh, 1 M'Cord, 360. 5,^0 post, § 226. ' Hagedorn v. Whitmore, 1 Stark. 157. (o) Fire is not within the exception " perils of the sea," or " dangers of the river." Morewood v. PoUok, 1 Ellis & B. 743, 18 Eng. L. & Eq. 341 ; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344 ; Garrison v. Memphis Ins. Co., 19 How. 312; Airey v. Merrill, 2 Curtis, C. C. 8; Cox v. Peterson, 30 Ala. 608. In Alabama, parol evidence of a usage that fire is considered a danger of the river within the exception in a bill of lading is admissible. Sampson v. Gazzam, 6 Port. Ala. 123 ; Ezell v. Miller, lb. 307 ; Ezell v. English, lb. 311 ; Hibler v. McCartney, 31 Ala. 501. If goods properly stowed are damaged by sweat, that is, by the condensation of moisture occasioned by passing from a warm to a cold climate, the loss is by a peril of the sea, and the carrier is not liable. Clark v. Barnwell, 12 How. 272 ; Lamb v. Parkman, 1 Sprague, 343 ; Baxter v. Leland, Abbott Adm. 348; Zerega v. Poppe, lb. 397; McKinlay u. Morrish, 21 How. 142 LAW OF CAEEIEES. [CHAP. VI. that they are but commensurate with the words acts of God?- But, notwithstanding this opinion, the words perils of the sea have been held to extend to events not attributable to natural causes.^ They have been held to include losses by pirates,^ and also losses by collision of two vessels where no blanie is imputable to the injured ship.* (ei) In a case arising upon a policy of insur- ance, wherein the loss happened by collusion without any nffgleet or fault on the part of the ship insured, and was so specially al- leged in the declaration, the underwriters were held answerable, and Mansfield, G. J., said : " I do not know how to make this out not to be a peril of the sea. What drove the Margaret against the Helena (the ship insured) ? the sea ; what was the cause that the crew of the other ship did not prevent her from running against the Helena ? their gross and culpable negligence ; but still the sea did the mischief." ^ In a case in South Carolina, the court considered that all accidents or misfortunes to which those engaged in maritime adventures are exposed must undoubtedly be said to arise from perils of the sea ; but in modern times it has been found convenient to distinguish the losses to which ships and goods at sea are liable, by the more immediate causes to which they may be more particularly ascribed. In this view, losses by perils of the sea are now restricted to such accidents or misfor- • Williams v. Grant, 1 Conn. 487 ; Crosby v. Fitch, 12 lb. 410. ' Story oil Bailm. § 512. See cases arising under the clause in a bill of lading "except the perils or dangers of the rivers or lakes," considered and commented upon by Cowen, J., in M' Arthur ». Sears, 21 Wend. 198, 199. ' Abbott on Shipp. 5th Am. edit. p. 474; Story on Bailm. § 512; Pickering V. Barclay, 2 Roll. Abr. 2^8 ; Barton v. WoUiferd, Comb. 5ft. ' Story on Bailm. § 512 ; Abbott on Shipp. lib. sup. ^ Smith V. Scott, 4 Taunt. 126. The words perils of the sea, though gen- erally referable to accidents peculiar to that element, are sometimes extended to a capture by pirates, or to collision of vessels when no blame attaches to either, but more especially to the one injured. Jones v. Pitcher, 3 Stew. & P. 176. (a) If the collision is caused by the fault of the carrier ship, it is not a peril of the seas. Lloyd v. Gen. Iron Screw Collier Co., 3 H. & C. 284 ; Grill v. Gen. Iron Screw Collier Co., Law Rep. 1 C. P. 600. If the carrier vessel is sunk by a collision and the goods lost, through the fault of those on board, it is no de- fence to an action by the owner of the goods that the colliding vessel was also in fault. Converse v. Brainerd, 27 Conn. 607. In Hays w. Kennedy, 41 Penn. State, 378, the bill of lading excepted "the unavoidable dangers of the river, navigation, and fire." Held, that the carrier was not liable for the loss by collis- ion of goods on his vessel, the master and crew of his vessel not being in fault. CHAP. VI.j EESPONSIBILITY OF COMMON CAEBIERS. 143 tiines only as proceed from mere sea damage, that is, such as arise ex vi divina, from stress of weather, winds, waves, light- ning, tempest, rocks, sands, &c.^ In a case wherein it appeared that a ship was hove down on a beach within the tide-way, for the purpose of repairing, and the tide having carried away the shores by which she was supported, her side and some of her timbers were injured, the damage was considered as having hap- pened on the land, and hence not to be a loss by the " perils of the sea." ^ § 167. But the phrase perils .of the sea, whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including unavoidable accidents upon that element, must in either case be understood to include only such losses as are of an extraordinary nature, or arise from some irresistible force, or some overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and pru- dence.^ Hence it is, that if a loss occurs by a peril of the sea, which might have been avoided by the exercise of any reasonable skill or diligence, at the time when it occurred, it is not to be deemed, in the sense of the phrase, such a loss by the " perils of the sea " as will exempt the carrier from liability ; but rather a loss by the negligence of the party.* ' See opinion of the court in Blythe v. Marsh, 1 M'Cord, 360. In this case, two vessels, the " None-Such *' and the " Planters' Friend," were passing in a narrow channel between Georgetown and Charleston, about four hundred yards across, both going the same way ; the " None-Such " ahead, going at the rate of seven knots, and the " Planters' Friend " coming up full in the wind at the rate of -seven knots. The captain of the " Planters' Friend " was warned of the dan- ^ ger, but thinking he could clear his vessel, in attempting to pass, came in contact with the " None-Such," and sunk her. In an action brought by the owner of a quantity of rice shipped on board the " None-Such," which was lost, upon a bill of lading in the usual form, " excepting the dangers of the sea," it was held that the collision was the result of negligence, in the management of one or both the vessels, and that the owners of the "None-Such" were in either case hable to the shipper. < A collision which would excuse the carrier must be such as could not be avoided by human prudence and skill. * Thompson v. Whitmore, 3 Taunt. 227. ' Opinion of Story, J., in the case of the Schooner Keeside, 2 Sumn. 571 ; Abbott on Shipp. P. 9, c. 4, § 1 ; Kent, Com. 216, 217 ; Elliott e. Kossell, 10 Johns. 1. * Ibid. ; and Story on Bailm. § 512 a. Where the claim of the defendant in an action against him for an injury to the plaintiff's steamboat, was, that the in- 144 LAW OF CARRIERS. [CHAP. VI. § 168. The import of the phrase " dangers of the river," like that of "perils of the sea," is not, perhaps, very exactly settled; although a just understanding of the meaning and effects of the exception in a bill of lading of the " dangers of the river " is of peculiar importance in this country, as it extensively affects, for the reason of the great number and magnitude of our navigable rivers, the- commercial interests and pursuits of the whole commu- nity. The point has received the particular attention of the Su- preme Court of Alabama, a State than which few others afford greater facilities to inland water transportation, with its numer- ous navigable streams intersecting almost every county. A con- sequence of these facilities peculiar to the country generally, though more so in respect to some States than to others, is, that a large portion of the people, instead of providing means of their own, have adopted the practice of intrusting to public carriers an iinusual proportion of products and merchandise. There seems to be no disposition in the Supreme Court of Alabama,^ to make any distinction between "dangers of the river " and " dangers of jury complained of was occasioned by the neglect of the officers and crew of such boat to keep up lights, according to the statute ; and the court charged the jury, that if such officers and crew were guilty of negligence, either in respect to said lights, or otherwise, to such a degree as essentially to contribute to the injury complained of, the plaintiff could not recover ; it was held, after a verdict for the plaintiff, that the charge was unexceptionable. New Haven Steamboat Co. u. Vanderbilt, 16 Conn. 420. The charge to the court, in this case, is very simi- lar to the charge of the court in the case of Sills v. Brown, 9 Car. & P. 661, in which Coleridge, J., told the jury that " if the plaintiff's servants substantially contributed to the injury, by their improper or negligent conduct, the defendant would be entitled to their verdict ; but if the injury was occasioned by the im- proper or negligent conduct of the defendant's servants, and the plaintiff's ser- vants did not substantially contribute to produce it, then the plaintiff would be , entitled to their verdict." The principle involved in both cases is, that while, on the one hand, a party shall not recover damages for an injury which he has brought upon himself, neither shall he be permitted to shield himself from an injury which he has committed, because the party injured was in the wrong, un- less such wrong contributed to produce the injury ; and even then, it would seem, a party is bound to use common and ordinary caution to be in the right. Per Hinman, J., in New Haven Steamboat, &c., Co., u6. sup. The question of fair or improper conduct in these cases is left to the determination of the jury. 2 Greenl. Ev. § 220 ; Williams v. Holland, 6 Car. & P. 23 ; Batson v. Donovan, 4 B. & Aid. 21 ; Pluckwell v. Wilson, 5 Car. & P. 375. ' Jones V. Pitcher, 3 Stew. & P. 135, 176; and see Whitesides v. Russell, 8 Watts & S. 44 ; M'Gregor v. Kilgore, 6 Ohio, 143 ; Dunseth v. Wade, 2 Scam- 285. CHAP. VI.] EESPONSIBILITY OF COMMON CAEEIEES. 145 the sea " ; and in the case referred to, the court considered, that " the perils of the sea, and of the river," are so nearly allied, that they may be considered the same, except in the few instances in which the reason differs. That there is a settled distinction be- tween perils Off the " navigation " and the " act of God," in bills of lading, is considered to be settled, and that the bill of lading may, in transportation by water, introduce exceptions not exist- ing by the Common Law,^ which seems to be asserted in Aymar V. Astor.^ In Johnson v. Friar ,^ it was held, that the expression, dangers of the river excepted, in bills of lading, meant only such as no human skill or foresight could have guarded against. In other words, it means all unavoidable accidents, for which common carriers by the general law are not excused, unless they arise from the " act of God." The distinction in Gordon v. Bu- chanan* is expressly taken, for in that case it is said, that the act of God " means disasters with which the agency of man has noth- ing to do, such as lightning, tempests, and the like." The " perils of the river " includes something more. " Many disasters, which would not come within the definition of the act of God, would fall within the exception in this receipt. Such, for in- stance, as losses occasioned by hidden obstructions in the river newly placed there, and of a character that human skill or fore- sight could not have discovered and avoided." In Williams v. Branson,^ it is held, that the words " dangers of the river " in the bill of lading, " signify the natural accidents incident to the navigation, not such as might be avoided by the exercise of that discretion and foresight which are expected from persons in such employment " ; and that to ascertain whether the loss was by such " dangers," it must be inquired whether the accident ' arose through want of proper foresight and prudence. If a steam- ' By Mr. Wallace, in his note to the case of Coggs v. Bernard, 1 Smith's Lead. Cas. (Am. edit. 1847), p. 232. ' Aymar v. Astor, 6 Cow. 206 ; and see post, Ch. VII. ' Johnson v. Friar, 4 Yerg. 48. * Gordon v. Buchanan, 5 Yerg. 72. See, also, this case, and the one preceding it, confirmed in Turney v. Wilson, 7 Yerg. 340. ' Williams v. Branson, 1 Murph. 417. In Marsh v. BIyth, 1 Nott & M'C. 170 the point is the same ; the meaning of the act of God was not in question, and the point decided was, that to determine whether the cause of the loss was by a " peril of the sea," the existence or non-existence of negligence was to be tried by the jury. 10 146 LAW OF CAEEIEES. [CHAP. VI. boat on the Ohio River run upon a stone and knock a hole in her bottom, the carrier will not be discharged from liability by virtue of the clause in his bill of lading, " the dangers of the river only excepted " ; but, in order to relieve himself from responsibility, it is incumbent upon him to prove that due diligence and proper skill were used to avoid the accident, and that it was unavoid- able.! (^a,-) § 169. The decision in Dale v. Hall^ has been considered to furnish a good illustration of the general principle by which the master and owners of a vessel are held responsible for every in- jury occurring, to a vessel that might have been prevented by hu- man foresight or care ; ^ and that by a " peril of the sea " is meant a natural, and not merely an inevitable accident. Though the question presented in this case may seem ludicrous, yet the extent of actual injury, and the importance of the legal principle involved, have rendered it one of very considerable discussion. The question was, whether a damage done to a ship by rats was among the casualties comprehended under the general phrase perils of the seas. The decision was made as long since as the year 1750 (24 Geo. II.), and is stated, and briefly commented on, in the following manner, by Sir William Jones : * " In a recent case," says he, " of an action against a carrier, it was holden to be no excuse that the ship was tight when the goods were placed on board, but that a rat, by gnawing out the oakum, had made a small hole, through which the water had gushed." He then adds, that the true reason of the decision is not mentioned by the re- porter ; it was, says he, in fact, at least ordinary negligence to let a rat do such mischief in the vessel ; and that, on this principle, the Roman Law had decided, that " si fuUo vestimenta polienda ' Whitesides v. Kussell, 8 Watts & S. 44. = Dale V. Hall, 1 Wils. 281. ' Abbott on Shipp. p. 371 ; and see, also, 3 Kent, Com. 300. • Jones on Bailm. 105. (a) See Hill u. Sturgeon, 28 Misso. 323-; Hays v. Kennedy, 41 Penn. State, 378. In Cox V. Peterson, 30 Ala. 608, the action was for non-delivery of goods shipped on a steamboat under a contract excepting " dangers of the river." la consequence of low water, the steamboat was obliged to stop before reaching its port of destination, and the goods were stored in a warehouse where they were destroyed by fire. The carrier was held liable, and evidence of a custom to ex- onerate him in such a case was rejected. CHAP. VI.] RESPONSIBILITY OF COMMON CARRIERS. 147 acceperit, eaque mures roserint, ex locate tenetur, quia debuit ab hac re cavere."^ Now it seems singular, that Sir William Jones _ should endeavor to explain the decision on such ground, because the defendant positively proved, that he had taken all possible care, and was guilty of no negligence ; and, indeed, on that very account (it will appear on examination of the case) the jury gave a verdict in his favor. The decision, therefore, sustains the policy of the law of common carriers, which supposes that there may be negligence, though impossible to be detected, and which renders the carrier liable, unless the loss can be clearly referred to that particular kind of peril of the sea called the " act of God," or "vis major.'" ^(ai) It supports the principle, that, although ordinary care excuses a warehouseman, it is not suffi- cient to excuse a common carrier.^ Lord EUenborough treated the question, whether damage done to a vessel by rats is a peril of the sea, as one about which he considered there was no doubt. It came before him in an action on a policy of insurance, in which it appeared, that the ship was detained at an intermediate port, and that, while lying there, the rats, -which had increased to a great extent, eat holes in her transoms, and other parts of her bottom ; in consequence of which a survey was called, when she was found so much injured that she was unfit to proceed on her voyage. Being thereupon Condemned, the plaintiff sought to re- cover a loss ; but Lord EUenborough was clearly of opinion, that this was not a loss within any of the perils insured against.* • Dig. 19, 2, 13, 6. ' Opinion of Harper, J., in Ewart v. Street, 2 Bailey, 161. And see Law Rep. for January, 1853, p. 566. ' In Califf M. Danvers, Peake, 113, which was an action against a warehouse- man, for negligently keeping a quantity of ginseng, which rats had got at and destroyed, although every precaution had been taken. Lord Kenyon said : " That a warehouseman was only obliged to exert reasonable diligence in taking care of things deposited in his warehouse. That he was not to be considered, like a carrier, as an insurer; and that the defendant in this case, having exerted all due and common diligence for the preservation of the commodity, was not liable to any action for this damage, which he could not prevent." S. C. cited in Jeremy on Carr. p. 91, note (f). ' Hunter v. Potts, 4 Camp. 203. Baron Alderson, in giving judgment, has said, that a rat in making a hole in a ship may be the same thing as if a sailor made one. Laveroni v. Drury, 8 Exch. 166, 16 Eng. L. & Eq. 510. See Oak- ley V. Steam Packet Co., 11 Exch. 618, 34 Eng. L. & Eq. R. 530. (a) A carrier is liable for damage done to goods, although he has used every possible precaution to keep the rats out. Kay v. Wheeler, Law Eep. 2 C. P. 302 148 LAW OF CARRIERS. [CHAP. VL § 170. In Aymar v. ,Astor, in New Tork,^ the latter party brought assumpsit against the former, for the value of certain bear-skins shipped on board the defendant's vessel at New Or- leans, for New York, but which were destroyed by rats on the voyage. By the bill of lading, signed by the master, the receipt of the bear-skins was acknowledged, to be delivered in good order and well-conditioned to the plaintiff in New York, " the dangers of the seas" and of " capture" only excepted. When they were delivered in New York they were damaged by rats ; and the par- ties went into evidence in the court below upon the question whether the vessel was prudently managed for the avoiding of rats, or whether the master had been negligent in that respect. The defendants ofiFered to prove that both at New Orleans and at New York damage by rats was considered and treated, by the usage of trade and merchants, as a peril of the sea. The court below excluded the evidence, and the defendants excepted. The court charged the jury that damage done by rats was not a peril by the sea, and the defendants excepted. The verdict and judg- ment in the court below was for the plaintiflF. Savage, C. J., said: " As to the question of liability, independent of the evidence of- fered, the terms perils of the sea, as used in contracts of insiu- ance, do not include those losses which may be prevented by proper care " : and he cited the above cases of Dale v. Hall, and Hunter V. Potts. Woodworth and Sutherland, Js., upon this point agreed with the C. J., but differed from him by their agreeing with the court below, that evidence of mercantile usage and understand- ing at New Orleans and New York, that injuries by rats are con- sidered and treated as " perils of the sea," was inadmissible.^ The case of Garrigues v. Coxe, in Pennsylvania,^ which was on a policy of insurance, the destruction of goods at sea by rats was held, on the other hand, to be a loss by a peril of the sea, where there had been no default of the carrier ; but this has been con- sidered and pronounced to be the only case contrary to the doc- trine, as above established as the Common-Law doctrine, that the damage so occasioned is not a damage by a peril of the sea.* As ' Aymar v. Astor, 6 Cow. 266. ' The judgment was reversed, on the ground that the court erred in chaining the jury that the defendants below were common carriers. That this ground is opposed to general authority, see ante, § 80. ' Garrigues v. Coxe, 1 Binn. 592. ' 3 Kent, Com. p. 300, in a note to which page it is also said, that the better CHAP. VI.] BESPONSIBILITY OF COMMON CARRIERS. 149 was affirmed by Harper, J., in Ewart v. Street, in South Caro- lina,^ in illustrating the responsibility of common carriers, " in all cases of injury to vessels from the gnawing of rats, the injury originates from causes that may be foreseen, or from the agency of man." § 171. A very strong case, in support of the principle of law, as applied to common carriers by water, that " perils of the sea " de- note natural accidents peculiar to that element, and that they should not be understood to include accidents merely because they occur upon that element, is the case of Backhouse v. Snead, in North Carolina : ^ A, being the owner of a vessel lately com- pletely repaired, received corn on board on freight ; the rudder was broken by the force of the sea, and the corn in consequence lost. The rudder proved to be internally rotten, although it pre- sented an external appearance of soundness ; and the fact of rot- tenness was unknown to A. It was held that A was liable for the loss of the corn. The opinion of the court was delivered by Tay lor, J., who affirmed that all accidents which can occur by the in tervention of man, however irresistible they may be, the carriej- is considered as insuring against ; and he relied, in support of this doctrine, upon the opinion of Lord Mansfield, in Forward v. Pit tard, and upon that of the court in Dale v. Hall. § 172. Where a vessel is so eaten by worms as to be unfit to prosecute the voyage, it is held not to be a loss within the perils of the sea. In the case of Rohl v. Parr^ (an action on a policy of opinion is, that the insurer is not liable for damage done by rats, because it arises from the negligence of the common carrier, and it may be prevented by due care, and is within the control of human prudence and sagacity ; and the authorities cited by the learned author, besides the above cases of Dale v. Hall, Hunter v. Potts, and Aymar v. Astor, are Koccus de Ass. n. 49 ; Cleirac sur le Guidon, c. 5, art. 8 ; Emerigon, torn. i. 377, who cites the Dig. 19, 2, 13, 6 ; and Casaregis, Strac- cha, Huricke, and Targa, may all be considered, says Kent, as maintaining the principle that the owner and not the insurer is holden for an injury done by rats. Story refers to writers upon the foreign maritime law, who lay it down that if the master of a vessel has used all reasonable precaution to prevent such a loss, as by having a cat on board, the loss is by a peril of the sea or inevitable acci- dent ; and he cites Roccus de Navibus, u. 58 ; lb. De Ass. n. 49 ; 1 Emerig. Ass. 377, 378; and see, Marsh, on Ins. B. 1, ch. 7, §§ 3, 4; and Abbott on Shipp. p. 371 ; Story on Bailm. § 513 ; but this learned author considers that a loss oc- casioned by leakage in a vessel caused by rats is not, in the English law, deemed a loss by a peril of the sea. Id. ' Ewart V. Street, 2 Bailey, 161. ' Backhouse v. Snead, 1 Murph. 173. » Kohl v. Parr, 1 Esp. 445. ISO LAW OF CAEEIERS. [CHAP. Vl. insurance), a vessel insured to tlie coast of Africa, there and back, had been wholly destroyed by the worms common to the rivers of hot climates, and a total loss was demanded upon the policy. But the decision was against the demand, upon the ground, that the loss was like the wearing and natural decay of the vessel, and not by the perils of the sea.^ A loss of a ship by worms in an ocean, where worms ordinarily assail and enter into the bottoms of ves- sels, is not a peril of the sea within a policy of insurance.^ Where a ship sustained an injury at the Cape de Verd Islands, in the loss of her false keel, whereby she became exposed to the action of worms, which obtained entrance into her in the Pacific Ocean, a;nd destroyed the ship, the loss does not come within the policy, it being a consequential injury. In this case, the court held that the master should have caused the ship to be repaired ; and in not doing so, he was guilty of negligence, which exonerated the under- writers from the subsequent loss by worms, which was occasioned thereby.^ § 173. In respect to seaworthiness, the want of which was the ground of the decisions in the cases cited in the two preceding sections, the general rule of law is well settled. It flows directly from the position, that the master and owners of a freighting ship are common carriers, that their first duty is to provide a vessel tight and stanch, and furnished with all tackle and apparel neces- sary for the intended voyage. If the shipper suffers loss or dam- age by reason of any insufficiency of these particulars at the out- set of the voyage, he will be entitled to recompense.* It is a term of the contract on the part of the owner of any vessel or lighter- man, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the pub- lic ; it is the very foundation and substratum of the contract, that it is so ; and every reason of sound policy and public convenience requires that it should be as the law presumes. In support of this doctrine is the case of Lyon v. Mells,^ in which the owner of a lighter was held liable to the full amount of damage occasioned by ' So it has in like manner been held in this country. Martin v. Salem his. Co., 2 Mass. 420. » Hazard v. New England Ins. Co., 1 Sumn. 218, 8 Pet. 557. » Ibid. * Abbott on Shipp. 5th Am. edit. p. 417. ' Lyon V. Mells, 5 East, 428. CHAP. VI.] RESPONSIBILITY OF COMMON CAEEIEES. 151 ■ the leakage of his vessel. Lord Ellenborough there said : " This we consider as a personal neglect of the owner, or, more properly, as a non-performance on his part of what he had undertaken to do, viz. to provide a fit vessel for the purpose." In Putnam -u. Wood,^ the court said : " It is the duty of the owner of a ship, when he charters her, or puts her up for freight, to see that she is in a suit- able condition to transport her cargo in safety." It is, moreover, the duty of the owner to keep the vessel in that condition, unlesg prevented by perils of the sea ; and if, during the voyage, the vessel meets with an accident arising from such cause, it is the duty of the owner to see that she is put in complete repair at the next convenient port ; for it is of the essence of the contract of the owner, that his vessel shall be able to receive, retain, and transport her cargo. These are principles which are not- only ap- plicable to contracts of affreightment, but govern in charter-parties and in policies of insurance.^ An insufficiency in the furniture of the vessel cannot easily be unknown to the master or owners ; but in the body there may be latent defects unknown to both. It may be observed, however, that defects of the latter sort cannot exist, unless occasioned by age, or the particular employment of the vessel, or some accidental disaster that may have happened to it ; all of which ought to be known to the owner, and ought to lead to an examination of the interior as well as the exterior parts.^ Be- sides, the carrier is an insurer against all but the excepted perils ; and on this ground, if the goods are lost by any defect in the ves- sel, whether latent or visible, known or unknown, the owner is answerable to the freighter. Thus, in Coggs v. Bernard,* Lord Chief Justice Holt said : " The law charges the person (namely, common carrier, hoyman, master of a ship) thus intrusted to carry goods, against all events but acts of God and the king's enemies." ^ Hence, if there is a stipulation in a bill of lading, that the vessel shall be made stanch and strong, and be in every way fitted for ' Putnam v. Wood, 3 Mass. 481. ^ Ibid. See also Kimball v. Tucker, 10 Mass. 192; Goodrich v. Lord, 10 lb. 483 ; Kipley v. Sehaife, 5 B. & C. 167 ; Bell v. Read, 4 Binn. 127. ' Abbott on Shipp. 5th Am. edit. p. 419. * Coggs V. Bernard, 2 Ld. Raym. 909. ' And see Dale v. Hall, «6. sup. ; Backhouse v. Snead, ante, § 171. Clark v. Richards, 1 Conn. 54 ; Dickinson v. Haslitt, 3 Harris & J. 345 ; Emery v. Her- sey, 4 Greenl. 407 ; M'Clure v. Hammond, 1 Bay, 99 ; Putnam v. Wood, ub. sup.; Harrington v. Lyles, 2 Nott & M'C. 88. 152 LAW OF CABRIEKS. [CHAP. VL the voyage, it is not so much a new engagement between the par- • ties, as the confirmation of the obligation imposed upon all com- mon carriers by the Common Law.^ (ai) If, however, a vessel is reasonably sufficient for the voyage, and is lost by a peril of the sea, the carrier will not be chargeable by its being shown that a stouter vessel would have outlived the storm. This was decided in Amies v. Stevens,^ in the case of a hoy, driven by a sudden gust of wind against the pier of a bridge, through which it attempts ed to pass, and thereby sunk, in consequence of a shock that a stronger vessel might have sustained without sinking. § 174. Therefore, thus far, it appears, that it is not every loss proceeding directly from natural causes, as winds, storms, &c., which is to be viewed as happening by the perils of the sea, or the river. But again, a common carrier, although he is not liable for the act of God, may become so if he voluntarily and improperly encounter the mischief. Thus, if a barge-master should rashly shoot a bridge, when the bent .of the weather is tempestuous, he would be chargeable on account of his temerity and imprudence ; when it would be otherwise, if, using all proper precautions, he should be driven by the force of the current, or by the wind, against a pier, and thereby the goods should be lost ; ^ for then it would be deemed a loss by mere casualty.* § 175. It has appeared, also, that a carrier by land is liable for a loss happening in con^quence of his deviating from the common and established route .^ So in like manner a carrier by water is responsible for a loss happening by a peril of the sea, when the ' Holt on Shipp. 79 ; Hollingworth v. Brodrick, 7 A. & E. 40. " Amies v. Stevens, 1 Stra. 128 ; cited in support of the proposition in the text, in Abbott on Shipp. 5th Am. edit. p. 475. " Amies v. Stevens, 1 Stra. 128, recognized and approved in Coit u. McMe- chen, 6 Johns. 160. See also Elliot v. Eossell, 10 Johns. 1. ' Story on Bailm. § 492. » Ante, § 164. (a) In West v. Steamboat Berlin, 3 Iowa, 532, -where the voyage was inter- rupted by ice, it was claimed that the carrier was liable because of delay on the voyage. The court below charged that if the shipper knew the character and capacity of the boat, and that she could run only by daylight, the contract must be considered as entered into in reference to these things. This was held to be incorrect, and the rule was laid down that it was the duty of the master to have a boat stanch and strong and fit to transport freight at the seEison of the year the contract was entered into ; and that it was the duty of the carrier to have men enough to run the boat both night and day. CHAP. VI.] RESPONSIBILITY OF COMMON CAEEIEES. 153 loss would not have thus happened, if he had not improperly en- countered the mischief by deviating from the regular course of the voyage. As in a case where the defendant received on board his barge certain lime to be conveyed for the plaintiff from Burly Cliff to London. The master deviated from the usual and customary voyage without any justifiable cause, and whilst the barge was so out of her course she encountered a storm, and the sea communi- cating with the lime caused it to ignite, whereby the barge and cargo were lost. In an action on the case for the loss of the lime, the declaration alleged that " it was the duty of the defendant to have carried and conveyed the lime by and according to the direct, usual, and customary way, course, and passage, without any vol- untary and unnecessary deviation or departure from, or delay or hindrance in the same " ; and averred the loss to be by reason of the deviation and departure and delay out of such usual and cus- tomary course and passage. It was held, first, that the damage sustained by the plaintiff was sufficiently proximate to the wrong- ful act of the defendant to form the subject of an action ; second- ly, that the declaration was sufiicient to support a judgment for the plaintiff.^ (o) § 176. Again, where it appeared that the regular course of ves- sels from New York to Norwich in Connecticut was through Long Island Sound, both in summer and in winter ; that in the year 1836, the navigation of the Sound was obstructed by the ice, and for a longer period than was usual ; that in the month of Febru- ary, during that period, a vessel bound from New York to Nor-, wich departed from such usual route, and performed her voyage in the open sea, on the south side of Long Island ; it was held, that this was a deviation without reasonable necessity ; that it, therefore, rendered the owners of the ship liable, as common car- riers, for a loss occasioned by the perils of the sea. It was urged by the counsel that the danger, both. to the vessel and cargo, from fire, thieves, &c., while lying in the port of New York, created such a necessity of sailing as justified the master in taking the outside passage. But this pretended danger, the court considered, was not peculiar to New York, and could not be esteemed immi- nent or uncommon ; and therefore could not justify any unusual 1 Davis V. Garrett, 6 Bing. 716. (a) Phillips V. Brigham, 26 Ga. 617. 154 LAW OF CARRIERS. [CHAP. \L or hazardous experiment. The distinction was a very obvious one, the court observed, between this case and one in which a vessel already on her voyage and in transitu, departs from the usual route, by reason of obstructions of the nature of the one in question, or of blockades, &c. In such cases, the master must act ; a necessity is thrown upon him ; and if he is governed by a sound discretion, he stands justified.^ § 177. In Hand v. Baynes, in Pennsylvania,^ the defendant, who was the owner of a line of vessels engaged in transporting goods from Philadelphia to Baltimore, received certain goods be- longing to the plaintiff, on board of one of his vessels, and gave a receipt in the following words : " Received on board of Hand's line for Baltimore via Chesapeake and Delaware Canal, from J. B. (the plaintiff), one hundred slaughter hides, on deck, which I promise to deliver to J. D. at Baltimore, the dangers of the nav- igation, fire, leakage, and breakage excepted." The vessel left Philadelphia, and on arriving at the mouth of the canal, the cap- tain was informed that the locks were out of order, and that he could not be allowed to pass through the canal. He then pro- ceeded down the bay and out to sea, with the intention of going round to Baltimore ; but, in a gale of wind, the vessel struck on a shoal, and with the cargo was totally lost. It was held, that the contract was a contract to carry the goods to Baltimore through the canal; and that the circumstances did not excuse the devia- tion from that route ; that, by an alteration of the voyage, the shipper was exposed to risks which he would not have voluntarily encountered ; that a voyage by sea required vessels of a different description, dififerently found, and differently manned ; and al- though the shipper might have been willing to encounter the peril, in a vessel adapted to the trade, it did not follow that he would risk his property in a vessel whose ordinary route was through the canal. When the master discovered the impediments to the prosecution of the voyage, through the route called for in the contract, his duty, the court held, was plain ; he had one of two courses to pursue ; to remain in , a place of safety at the mouth of the canal, or in some convenient and safe place in the neighborhood, until the obstructions were removed ; or he should ' Crosby u. Fitch, 12 Conn. 410; and see Oliver v. Maryland Ins. Co., ' Cranch, 487 ; Williams v. Grant, 1 Conn. 487 ; 3 Kent, Com. 165. " Hand t;.' Baynes, 4 Whart. 204. CHAP. VI.] RESPONSIBILITY OF COMMON CAERIEKS. 155 have returned and informed the owners and shippers of the im- practicability of proceeding through the canal. The legal effect of the contract, the court held, was an engagement to carry and deliver the goods at Baltimore in a reasonable time, and what would be a reasonable time must be determined under all the cir- cumstances, with a view to the condition of the canal, the season of the year, the state of the weather, and such other matters as might enter into the question. But, said the court, where the contract is express to deliver goods in a prescribed time, no tem- porary obstruction, or the impossibility of complying with the en- gagement, arising, from the condition of the locks on the canal, or any other cause, would be a defence to a suit for a failure to per- form the contract. The court were further of opinion that the clause in the receipt, " the dangers of the navigation," did not apply to dangers caused by the canal's being, by inevitable acci- dent, rendered impassable ; and that occasional interruptions of trade, arising from breaches in canals or other accidents, are in- conveniences, but in no sense could they be considered as dangers of the navigation, coming within the exception ; and they said, that as the contract excepted the dangers by the navigation on the route of the canal, when there may'be such a danger as is provid- ed for, it would be time enough to decide when it should arise. § 178. So a loss occurring by a deviation, by taking an inland passage, will render the carrier liable. The steamboat of the de- fendants, going through an inland passage to Charleston, South Carolina, grounded from the reflux of the tide, in consequence of which she fell over, and the bilge-water rose into the cabin, and injured a box of books belonging to the plaintiff; and it was held that the defendants were liable for the loss thus occasioned.^ (a) § 179. However, although when, by a bill of lading, the goods are to be carried from one port to another, a direct voyage is primd facie intended, yet this is a presumption which may be ' Charleston Steamboat Co. v. Bason, 1 Harper, 262. (a) So, if a contract is made to carry goods by steam and they are taken by sail, the carrier is liable as an insurer. Wilcox v. Parmelee, 3 Sandf, 610. Or if the contract is to take them by sail and they are taken by steam. Merrick v. Webster, 3 Mich. 268. If goods are destroyed by fire after being placed on a wharf where the carrier had no right to place them, the carrier is responsible, although the goods were shipped under a bill of lading which excepted fire. Steamboat Sultana v. Chapman, 5 Wis. 454. 156 LAW OF CARRIERS. [CHAP. VI. controlled by a usage to stop at intermediate ports, or by a per- sonal knowledge, on the part of the shipper, that such a course is to be pursued.^ In an action against the defendant, as the owner of a sloop, for a loss sustained by the plaintiff, in consequence of a deviation by the master, the defence was, that tlje sloop was a general coasting vessel from New York to Norfolk, and other places on the Chesapeake, and rivers running into that bay ; that it was the usage of such vessels to take freight for several ports, stopping at the first port, and passing on to the others succes- sively, leaving the goods taken for each, and taking in other goods ; and this usage was general and public. Tlie court held, that the bill of lading was to be construed, like other contracts, according to the intention of the parties ; that usage of trade is always presumed to be vsdthin the knowledge of the parties, and that such contracts as this are supposed to be made in reference to it. There was competent evidence of the usage in relation to vessels like the one in question, and there was also evidence that the plaintiff's agent knew of it ; and, therefore, the primd facie intention of a direct voyage was subject to the contract which was controlled by the usage so kno.wn and established.^ § 180. That the injury done to a carrier ship ot- goods on board, by her settling, on the ebbing of the tide, on a hard siibstance at the bottom of the harbor where she is properly moored, is an in- jury occasioned by the perils of the sea, is beyond all doubt ; pro- vided the injury does not proceed from an inherent weakness in the ship, or mere wear and tear. This principle is affirmed by Tiudal, C. J., in Kingsford v. Marshall.^ The case of Potter v. The Suffolk Insurance Company* was narrowed down to the con- sideration whether the loss of a vessel in that condition was from inherent weakness ; and Mr. J. Story held, that if it was not from such weakness, it was occasioned by an unusual and extraordi- nary accident in grounding upon the ebbing of the tide, which would, he held, be a peril of the sea. If a carrier ship, in taking ground, should fall over and thereby bilge, (which would be no ordinary damage, but an unusual accident,) it would be a loss by the perils of the sea, just as much as it would be if done by strik- * Crosby u. Fitch, uh. sup. » Lowry v. Russell, 8 Pick. 860. ' Kingsford v. Marshall, 8 Bing. 458. • Potter V. Suffolk Ins. Co., 2 Sumn. 197 CHAP. VI.J EESPONSIBILITY OF COMMON CAKRIEES. 157 ing on a hard substance.'' The case of Fletcher v. Inglis^ did not turn upon any distinction, whether the injury was by a hard or ■ soft bottom ; but upon the point, whether it was an ordinary in- jury or an extraordinary accident. Cases of this sort, therefore, depend entirely upon the particular facts and circumstances at- tending them. Thxis, in one case in South Carolina, the vessel became stranded, and the cotton which was on board was in con- sequence damaged, but the vessel being proved to be good and sufficiently manned, the carrier who undertook was not held lia- ble.^ When, in another case, in the same State, where a vessel was as safely moored in a dock as she could be at the particular season of the year, settled on the bottom which declined towards the stream, and sprung a leak, and the goods were damaged by the water in the hold being thrown forward, the case was held not to come within the exception of the act of God, or inevitable accident.* § 181. A quantity of flour, on its way from Baltimore to Phila- delphia, was put on board a schooner in Christiana Creek, and it was alleged, in an action against the carriers, who were common carriers between those two cities, that, at the time the vessel com- menced her voyage, the tide in the creek was unusually low, owing to the prevalence of the westerly and northwesterly winds ; that after she had gone a short distance she grounded, but was got off in safety, and then proceeded some distance farther down the creek, when she again grounded, whereby some of the planks in her bottom were strained, so that she leaked and filled with water, in consequence of which a part of the flour was transshipped by another vessel ; that she again, after some time, was got afloat, and proceeded to Philadelphia, where she delivered the flour which remained on board of her to the consignee, in a damaged ' Ibid. ; Bishop v. Pentland, 7 B. & C. 219. ' Fletcher v. Inglis, 2 B. & Aid. 315. " Barnwell v. Hussey, 3 Const. R., S. Car. 114. ' Ewart V. Street, 2 Bailey, 157. Harper, J., who delivered the opinion of the court in this case, observed : " We might well conclude, from the evidence before us, that there was no degree of neglect in the master of the vessel ; that the ship was moored, so far as could be foreseen, in the most juiJicious manner ; and that she was stanch and seaworthy ; but we cannot be assured that the jury (who had found for the plaintiffs) have found this. They may have concluded, con- trary to the opinion of the witnesses, that there was mismanagement, and deter- mined, from the fact of the ship's springing a leak, under the circumstances, that she was not seaworthy.'' 158 LAW OF CARRIERS. [CHAP. YI. condition. The defendants insisted they were not liable, because the low tide was the act of God, and that act occasioned the dam- age. The opinion of the court was, that if the prevalence of the westerly and northwesterly winds had occasioned an uncommonly low tide in the creek, and thus, in an extraordinary manner, in- creased the perils of that navigation, the carriers were not bound, at their own risk, to encounter those new and extraordinary dan- gers ; and that they would have been excusable in making a rea- sonable delay, until those additional and temporary perils had passed away. But inasmuch as they did proceed, they prosecuted the voyage at their own risk ; they knew, or they took upon them- selves to know, the changes in the navigation which had been thus occasioned, and they voluntarily proceeded ; consequently they moved forward at their own risk. The jury were therefore direct- ed that the evidence offered did not legally excuse the defendants from answering for the damage which the flour received on board the schooner, and they found for the plaintiff.^ § 182. If a carrier vessel should perish, in consequence of strik- ing against a rock in the sea, or a snag in a river, or any natural obstruction, the circumstances under which the event has taken place must be ascertained, in order to decide whether it happened by a peril of the sea, or by the intervention of man. If the situ- ation of the rock or snag, or other obstruction, is generally known, and the vessel is not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master ; ^ (a) but, on the other hand, if it is not generally known, and the master has a pilot where it is usual to have one, the loss is deemed attributable to the act of God.^ The boatmen who transport goods from the interior of South Carolina are common carriers ; and a loss, it has been held, in that State, occasioned by one of the boats run- ning on an unknown snag; in the usual channel of the river, is » Boyle V. M'Laughlin, 4 Harris & J. 291. = Story on Bailm. § 516 ; Elliott v. Kossell, cited post, § 185. « Ibid. ; Case of The William, 6 Kob. Adm. 316, cited in Story, sup. (a) It has been held that this doctrine does not apply to dangerous places on the Western rivers which must be passed over, and that " the course usually pursued by skilful pilots in passing a bar or snag or dangerous place in the river must he the test by which the propriety of the conduct of a carrier is to be ascertained." Col- lier V. Valentine, 11 Misso. 299, 310. See also Ready v. Steamboat Highland Mary, 17 Misso. 461. i CHAP. VI.] RESPONSIBILITY OF COMMON CAEEIEES. 159 referable to the act of God, and excuses, therefore, the carrier.^ (a) If a shoal unexpectedly changes its bed, and a ship grounds upon it, the unknown shoal is the immediate and sole cause of the stranding.^ § 183. In an action against the defendants, as common carriers, it was admitted that they undertook to transport the merchandise in question from Providence to New York, on board a vessel of about twenty tons, owned by the defendants, for hire, the danger of the seas only excepted. While the vessel was on her passage, she ran against a rock in Providence River, in fair weather, and under a moderate breeze, and bilged, so that the merchandise (salt) was lost. The plain tiifs contended; and brought witnesses to prove, that the rock was well known to the people in the neigh- borhood, and to those concerned in the navigation of that river ; that the vessel, when she ran against it, was out of the channel course of navigation ; that the master was not acquainted with the navigation of the river ; and that it was usual to have a pilot, but that none was taken on board. The defendants, on their part, pro- duced evidence to prove that the rock was not generally known. The defendants were held liable, because the master was ignorant of the navigation, and had no pilot on board, as was customary, and the vessel went out of the usual course. Mr. J. Gould said : " Now such a deviation would certainly have been misconduct ; the alleged ignorance of the master (there being no pilot on board) would have been a species of deficiency, in the nature of the want of seaworthiness ; and the want of a pilot, where one is by com- mon usage employed, and the master ignorant of the navigation, is manifestly a culpable neglect." ^ (6) § 184. By the foregoing cases, one thing is rendered perfectly ' Smyrl v. Niolon, 2 Bailey, 421 ; Faulkner v. Wright, 1 Rice, 107; and see post, § 187. " Per Richardson, J., in Reaves v. Waterman, 2 Speer, 197. ' Williams v. Grant, 1 Conn. 487. For sailing down rivers, or out of harbors, a pilot must be taken on board, where, by usage or the laws of the country, a pilot is required. Abbott on Shipp. p. 344. A vessel is not seaworthy if she proceeds without a pilot in navigating a river, where it is the custom to take on board a licensed pilot. lb. note 1 ; Story's edit, of lb. (1846.) (a) Pennewell v. CuUen, 5 Harring. Del. 238. See, however, Steele v. Mc- Tyler, 31 Ala. 667; Coosa River Steamboat Go. v. Barclay, 30 Ala. 120. (6) This case is followed in Fergusson v. Brent, 12 Md. 9. 160 LAW OF CAEBIERS. [CHAP. VL clear, viz. that the question, whether the loss of, or injury done to goods, while being transported by the carrier, by natural cau- ses, has followed the misconduct, negligence, or incompetence of the carrier, his servants or agents, or has been consequent upon the unseaworthiness or insufficiency of the vessel, is a question of fact, depending upon the finding of the jury upon the evidence.^ Cases, therefore, may arise, in relation to carriers by vrater, as in relation to carriers by land, when a jury may be called upon to exercise very nice judgment and discrimination in weighing oppo- site testimony of witnesses ; as the cases we next proceed to notice afford striking examples. § 185. In a case where a scow was employed by the defendants as common carriers, to carry the ashes of the plaintiffs from Og- densburgh, in the State of New York, to Montreal, in Canada, the scow was lost by splitting upon a rock, on the shoals, within sight of Montreal. The master of the scow deposed, that he took a pilot at Chateauguay, who he was informed was a good pilot ; that they passed safely over the La Chine Eapids, and that the scow was proceeding, with a strong current, in a channel which the witness knew, from long experience, to be the right channel ; that when so proceeding, a sudden gust of wind arose, and drove the scow out of the right course, the pilot calling out that they were get- ting out of the right channel, and urging all hands to row as hard as possible, to regain the right channel ; that the witness and all hands accordingly rowed to the utmost exertion of their strength, but in vain, as the scow was driven on the rock above mentioned, and was lost ; that the scow, manned by six able-bodied boatmen, was about a mile from the rock when the pilot ordered the men to row, and that they continued to row for half an hour before the scow struck ; that if the scow had been left to the winds and cur- rent, it would have been driven on the rocks and shoals above the place where she struck ; that, the scow was lightened of three boat- loads before passing the Chateauguay River, so as to satisfy the pi- lot. These facts were also deposed to by two of the boatmen. A witness for the plaintiffs testified, that he was standing on the dock, at Montreal, about a mile from the scow at the time she struck ; that he saw her about half an hour before ; that the weather was fair, the sky clear, and that there was no breeze where he was ; ' As to the question of negligence, &c. being for the jury, see ante, §§ 7, 11, 16,27,61. CHAP. VI.] EESPONSIBILITY OF COMMON " CARRIERS. 161 that he saw the master about half an hour after he got ashore, who said lie supposed they were safe until the pilot called out, and that the pilot attempted to go to the right of the rock, and, finding he could not, endeavored to go to the left, and did not discover the rock soon enough to avoid it. Another witness said, he saw the scow strike the rock, but did not perceive any gust of wind, though there might have been a flaw of wind without his seeing it. The judge charged the jury, that the only ground on which the de- fendants could be exonerated would be, that the^oss was occa- sioned by the act of God ; that the cause of the loss was a fact for the jury to determine, and he left the fact for their decision, with an opinion that the loss was not owing to the act of God, within the true meaning of the rule on the subject. The jury found a verdict for the plaintiff for the value of the ashes. Upon a motion to set aside the verdict, and for a new trial, the motion was denied. Kent, C. J., said, that the only real point in the case was the ques- tion of fact submitted to the jury, viz. whether the loss of tlie scow was to be attributed to that inevitable necessity, not arising from the intervention of man, which human prudence could not have avoided, and which is considered in law the act of God. There was contradictory testimony upon this point, but he thought, with the judge who tried the cause, that the weight of evidence was in favor of the conclusion drawn by the jury, and that the loss did not arise from any sudden gust of wind, but from the want of due care and skill in steering the boat down a well-known and dan- gerous rapid ; the dangers of such a rapid were at the risk of the common carrier, as much as the dangers of a broken and precipi- tous road. And the loss, said the learned judge, must have arisen from some extraordinary occurrence, as winds, storms, lightnings, &c., to bring the case within the exception; and the rest of the court concurred.! § 186. Again, in an action against the owner of a sloop, to re- cover from him, as a common carrier, the value of goods shipped and lost, the defence was, that the sloop was stanch and well found, and that, in attempting to make Edisto Inlet, as was proper, the master, in heaving the lead, accidentally fell overboard and was drowned ; the seamen were unable to navigate the vessel, and so, by the act of God, she got upon the breakers, and was deserted by the crew. In behalf of the defendant, it was proved that the ' Elliott V. Rossell, 10 Johns. 1. 11 162 LAW OF CARRIERS. [CHAP. VI. master was steady and skilful, and never known to be drunk ; that the sloop was in all respects seaworthy, and the crew sufficient. On the other hand, the plaintiff's witness (the master of a fishing- smack who saw the sloop) said, in effect, that he was in sight of the sloop several hours, and from her management thought the people on board drunk or fools, and that there was no difficulty in wind or weather. Another witness (mate of the fishing- smack) saw the master of the sloop about daylight the morning she sailed, when he seemed intoxicated ; that when they passed the sloop, he thought and said her captain must be crazy, he had so many courses, and run so far from the buoy and marks. It was held, that the testimony did not show a loss by the act of God.i § 187. A vessel disabled by stranding may fall within the ex- cepted perils, but still the master may be liable for negligence in not forwarding the goods on board, or such as remain on board, after the accident, to their destination. In the event mentioned, the conduct of the master or owner, therefore, becomes a subject of important consideration, and that, with the circumstances pe- culiar to the case, is a matter of fact to be submitted to the jury. When all reasonable efforts, in the opinion of the jury, fail to save the cargo, the ultimate loss may be fairly regarded as resulting from the first cause, as the vis major; upon the ground, that when human exertions have failed to obviate its consequences, the " act of God " may still be regarded as continuing its operation.^ By the remarks of Kent, C. J., in Schieffelin v. New York Insurance Company,^ it clearly appears, that when a vessel is detained with- out the fault of the master, the master ought to procure other means to send on the cargo ; and this doctrine of course applies to all cases of disability and detention of vessels occasioned by the act of God.* In South Carolina, it has been held, that a boat lost by running on an unknown and concealed snag in the regular channel of the river, may fall within the excepted perils ; ^ but ij 1 Koss V. English, 2 Speer, 393. * Faulkner v. Wright, &c., 1 Rice, 107. ' Schieflfelin v. New York Ins. Co., 9 Johns. 21. * See, on this subject, opinion of Woodworth, J., in Treadwell v. Union Ins. Co., 6 Cow. 270; Bryant v. Commonwealth Ins. Co., 6 Pick. 143; Cheviots. Brooks, 1 Johns. 364 ; Manning v. Newnham, 2 Camp. 624. ' Smyrl v. Niolon, 2 Bailey, 421. CHAP. VI.] EESPONSIBILITY OF COMMON CARRIERS. 163 is also held, in that State, that whether the duties of the master and owners cease or not, by that catastrophe, depends on the de- termination of the jury. In an action of assumpsit in the Court of Appeals of South Carolina, against the defendants, owners of a steamboat, for the value of certain goods shipped by the plaintiffs, and alleged to have been lost on board the said steamboat, plying on the Pedee River, the defence set up was, that the boat sunk by running on a concealed and unknown snag in the ordinary boat channel, when the river was fairly navigable for steamboats ; and that the loss which followed was not in consequence of any want of prudence and diligence on the part of the master and owners. There was much. testimony offered on both sides ; by the defend- ants to sustain, and by the plaintiffs to repel, the grounds of ex- cuse set up ; and in some respects the evidence was conflicting and contradictory. The plaintiffs insisted, especially, that the de- fendants had been guilty of negligence, after the steamer struck and went down, in not rescuing the goods and forwarding them to their destination. Upon this part of the case the presiding ■judge charged the jury, " that the duties of the master and own- ers did not cease with the catastrophe which arrested and detained the boat, whereby the cargo became damaged ; but that they might be held liable for damages arising from want of diligence and proper exertions towards saving and delivering the goods on board, and that the jury might regard as a proper standard of such dili- gence such a line of conduct as a prudent man of intelligence would have observed in taking care of his own property similarly situated." The jury found for the defendants, and a motion for a new trial was refused. %it Richardson, J., dissented, and con- sidered that under the circumstances the case should be sent back to be reconsidered by the jury.^ The general doctrine, however, clearly is, that if by reason, of stranding, or some other unexpect- ed cause, it becomes impossible to convey the cargo safely to its destination in his own vessel, the master is to do what a prudent man would think most for the benefit of all concerned.^ (a) Transshipment to the place of destination, if it be practicable, is tlie first object, because that is the furtherance of tlie original object. ' Faulkner v. Wright, &e., ub. svp. ' Smith, Mer. Law, 180. (a) See Lemont v. Lord, 52 Maine, 265. 164 LAW OF CARRIERS. [CHAP. VI. If that be impossible, a return or safe deposit may be expedie^jt/ and the merchant should, if possible, be consulted.^ (a) § 188. But the unambiguous terms and the universally admit- ted poliisy of the rule of responsibility of common carriers in- clude not only damage occasioned by the act of God as operating upon, or as secondary to, the negligence or misfeasance of the car- rier or his servants, but extend to the intervention of the agency of a third person; although it has appeared,' that there have been cases arising upon exceptions in bills of lading of " perils of the sea" where, in addition to losses by natural causes, those arising from the acts of third persons are allowed to come within that phrase.^ The general doctrine, that a common carrier insures against all accidents which may or can occur by the intervention of any human means (however irresistible they may be), has been too long established and too earnestly commended, to be now limited to his own acts.* The difficulty, as has very prop- erly been observed, in receiving the immediate agency of third persons, as the act of God or a peril of the sea, in any shape, is, that it leaves open that very door for collusion which has denied an excuse by reason of fire, theft, and robbery.^ The true ques- tion would seem always to be, whether the loss is to be attributed to that inevitable necessity (not arising from the intervention of man'), which no human prudence could have avoided.^ In the ' Liddard v. Lopes, 10 East, 526. * Wilson V. Millar, 2 Stark. 1. A sale is the last thing a master should think of, because it can only be justified by that necessity Trhich supersedes all human laws ; if he sells without necessity, his owners, as well as himself, will be answera- ble to the inerchant. Freeman v. East India Co., 5 B. & Aid. 617; Wilson i>. Dickson, 2 lb. 2. Still the master's authority extends to hypothecate, or even to sell a part of it, where it is necessary to do so for repairs, in order to the preserva- tion of the entire venture. See case of Brig Sarah Ann, 2 Sumn. 206 ; Brown V. Lull, lb. 443. ' See ante, § 166. » See ante, § 151, et seq. ' Per Cowen, J., in delivering the opinion of the court in M' Arthur v. Sears, 21 Wend. 190. ° This rule, however apparently severe, is so established by the policy of the law, for the security of all persons, the necessity of whose affairs obliges them to trust (a) In Cox V. Foscue, 33 Ala. 713, the vessel got aground. The plaintiff's goods were, transshipped to another vessel, and were afterwards lost on her, by fire. Held, that the owners of the first vessel were not liable for the loss, although their master could have taken the goods on board again, as his vessel floated im- mediately after the transshipment. CHAP. VI.] EESPONSIBILITY OF COMMON CARRIERS. 165 case of Forward v. Pittard,^ which has been already referred to,^ where a fire brolie out a liundred yards from the carrier's booth, where he had placed the goods for safe custody, and they were destroyed by the fire, the carrier was held by Lord Mansfield to be liable, though the fire was without actual negligence on his part. It may be said, that fire is an inevitable accident ; but looking to the policy of the law, it is not so regarded. Being by the act of man, it may be collusive, that in the confusion depredations may be committed ; and as there is a possibility of the carrier being participant in the crime, the risk is on them ; or, at least, the re- sponsibility leads to a wholesome degree of care, which might otherwise be utterly unobserved.^ § 189. So it has never been doubted that the carrier is liable for the theft of a third person, whatever apparently may have been the care of his agent in guarding the goods stolen while in his custody.* Thus, if money is delivered to the master of a steamboat, who is accustomed to carry it for hire, as the agent of the owner of the vessel, and while his vessel is lying in the dock, the cabin is forcibly broken open, in the absence of him and his crew, and the money is stolen out of his trunk ; the owner of the vessel, although no actual fault or fraud is imputable to the mas- ter, is answerable for the loss.® It was indeed long ago held, in those sorts of persons (common carriers) in the course of their dealings ; for else these carriers might have an opportunity of ruining them by fraudulently com- bining with thieves, &c., and yet doing it in so clandestine a manner as might hardly be possible to be discovered. In support of the same rule of policy, " every- thing is a negligence in the carrier or hoyman, &c., from the moment he receives the goods into his custody, which the law does not excuse ; and to prevent collu- sive litigation, and the necessity of going into circumstances impossible to be un- ravelled, the law always presumes against the carrier, unless he shows the injury to have been done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightnings, tempests, &c. And the reason why these acts only are held not to charge carriers seems to be, that as they are not under the control of the contracting party, they ought not to aifect the con- tract, inasmuch as he only engages against those events which by possibility and due diligence he may prevent. These rules, though said to be founded in cus- tom, have yet always been considered to be of 'Common Law." See Jeremy on Carr. 56. ' Forward v. Pittard, 1 T. K. 27. ' See ante, § 156. •' See 1 Bell, Comm. 379. And see ante, § 157, as to loss of steamboats by fire. • Coggs V. Bernard, 2 Salk. 919 ; Rich v. Kneeland, Cro. Jac. 330. " Kemp V. Coughtry, 11 Johns. 107, and cited more fully ante, § 104. 166 LAW OF CAERIERS. [CHAP. VI. an action against the master of a ship for goods delivered into his custody, and which were stolen from the ship by persons pretend- ing themselves to be officers with a warrant to search, that the carrier was not excused.^ In an action on a bill of lading signed by the defendant, as master of a ship, it appeared that the goods were shipped at Liverpool in good order, and consigned to the plaintiff. On the arrival of the ship in New York it was found that several of the trunks had been opened, and the goods taken out ; and it was admitted that the goods had been embezzled, or otherwise lost, without any fraud on the part of the defendant. The master was, nevertheless, held to answer for the value of the lost property, in accordance with the rule, in furtherance of the general policy of the marine law, which holds the master respon- sible, as a common carrier, for all accidents, and all causes of loss, not coming within the exception in the bill of lading.^ § 190. Again, where the owner of a ship received on board at New York a quantity of goods to be carried to London, and on the arrival of the ship the goods were refused admission, being prohibited by the laws of England,- and the consignee and master agreed that tlie goods should remain on board and be returned to the shippers in New York, at their risk, they paying the freight from London ; and an indorsement was made on the bill of lading to that effect ; it was held that the ship-owner was responsible for the embezzlement of any part of the goods, between the time of their first shipment at New York and their return there, although English custom-house officers were on board during the time the vessel was in London, and although they may have embezzled the goods, and not the master, or crew, or any person within their knowledge. The master's duty was to guard against such acci- dents, and his neglect to do it, or his misfortune in not detecting the theft, throws upon him the loss, because it was a risk he had assumed ; and to admit the latter excuse by the master would be opening, in the opinion of the court, " all the evils to be appre- hended from fraudulent combinations and collusions between the .master and the crew, and otlier persons, which it was the policy of the law to pi-event."* ' Morse v. Slue, 1 "Vent. 190, 238, and cited ante, § 129. ' Watkinson v. Laughton, 8 Johns. 213. ° Sohieffelln v. Harvey, 6 Johns. 1 70. This case is distinguishable from cases where it has been held, that during the period of detention by captors, as pKX, CHAP. VI.] EESPONSIBILITY OF COMMON CAEEIEKS. 167 § 191. Indeed, not only so, but the carrier is even answerable for the irresistible force and violence of robbers and mobs.^ Though the force, says Lord Holt, in Coggs v. Bernard,^ " be never so great, as if an irresistible multitude of persons should rob him (the carrier), he is nevertheless chargeable." Lord Mansfield, in Forward v. Pittard,^ puts the case of the riot in Lon- don, of 1780, by which the great destruction of property in that city could not be prevented by a considerable military force, as even an instance which could not be received to protect, in that capacity, a common carrier. It was held by the same learned judge, that the master of a ship on board of which goods have been laden, in the river Thames, for a foreign port, is liable for the loss of the goods occasioned by a forcible robbery while the ship is lying in the river. " At first," said he, in giving judg- ment, " the rule appears to be hard, but it is settled on principles of policy, and when once established every man contracts in ref- erence to it, and there is no hardship at all." * § 192. That the doctrine which imposes the liability of common carriers, where the loss of goods is occasioned by human agency, whether it be that of the carrier or his servants alone, or the im- mediate agency of third persons, applies as well to carriers by water, both inland and foreign, as to carriers by land,^ we may instance the case of the defective rudder, to which attention has been already called : A man hires his vessel to be repaired by a skilful workman, who makes a rudder apparently sound, but which is internally rotten, and a loss happens by reason of its breaking by the force of the sea, the owner is liable, although he was ignorant of the defect.^ It follows, indeed, directly from the position, that the master and owner of a general freighting ship are common carriers, that if there should prove to be a latent de- or by the belligerent, for adjudication, all the responsibilities of the master and crew are suspended. And see Evans v. Hutton, 5 Scott, N. R. 670. • See ante, § 149. " Coggs V. Bernard, 2 Salk. 919. ' Forward v. Pittard, 1 T. K. 27. * Barclay v. CucuUa y Gana, 3 Doug. 389, cited 1 T. R. 33, nom. Barclay v. Heygena. ' That carriers by water, both inland and foreign, are liable as common car- riers, in all the strictness and extent of the Common-Law rule, see ante, §§ 80, 87, 88, and Abbott on Shipp. Pt. 4, c. 6, p. 389, 5th edit. ' Backhouse v. Sneed, 1 Murph. 173, and cited ante, § 171. 168 LAW OF CAEBIERS. [CHAP. VI. feet in a vessel, and one undiscoverable upon examination (and it may be the fault of the builder), that the owner of the vessel must answer for the damage occasioned by the defect.^ § 193. The doctrine is distinctly laid down by Lord Tenterden, that in considering whether a common carrier by water is charge- able with any particular loss, the question is not whether the loss happened by reason of the negligence of persons employed in the conveyance of the goods ; but whether it was occasioned by any of those causes which, either according to the general rules of law, or the particular contracts of the parties, afford an excuse.^ In support of his position, the learned author has cited the case of Gosling V. Higgins, in which it was held that the master and owner of a ship were answerable for the loss of the goods occa- sioned by the seizure of the ship by the officers of the revenue for a supposed violation of the revenue laws., although in the result • ■ of the proceedings under the seizure, it may appear that there was no cause for condemnation.^ So, probably, says the same learned author, the master and owners would, by the Common . Law, be answerable for a loss arising from the negligence or mis- conduct of a local pilot on board, to whom the direction of the ship was necessarily intrusted;* though this responsibility (in certain cases at least) is now taken away by act of Parlia- ment.^ (a) ' 3 Kent, Com. 205, and note (1) to Story's ed. of Abbott on SUpp. p. 341, and lb, p. 394, note (1), bth edit. " Abbott on Shipp. p. 382, 383. ' Gosling V. Higgins, 1 Camp. 451. This was an action against the owner of a vessel for non-delivery of ten pipes of wine, shipped at Maderia, to be carried to Jamaica and thence to England. The ship was detained at Jamaica, for a supposed violation of the revenue laws, but on appeal, the sentence of con- demnation was reversed, and it was said by Lord Ellenborough : " You have an action against the officers. The shipper can only look to the owner or master of a ship.'" S. C. Jeremy on Carr. pp. 66, 67. * He cites the opinion of the Ch. J. in Bowcher b. Noidstrom,! Taunt. 568. ' Stat. 6 Geo. IV. c. 125, § 55. The American authorities, on the subject of pilots and pilotage, are thus given by the learned annotators to the fifth Amen- can edition of Abbott on Shipping, p. 210: " While a pilot is on board, who is regularty appointed, he has the absolute and exclusive control of the ship in the absence of the master, and is considered as master pro hac vice ; and conse- quently the master is not liable for any injury happening to another vessel by the fault or negligence of the pilot during his absence, whatever might be the (a) See post, § 664. CHAP. VI.] RESPONSIBILITY OF COMMON CAEEIEES. 169 § 194. If a common carrier by water, in proceeding in the un- loading of his vessel, uses the tackle or machinery of a third per- case, if he were present at the time of the injury. Snell v. Eioh, 1 Johns. 305 ; Tates V. Brown, 8 Piolj. 23, 3 Kent (5th edit.), 176. Whether the owner ■would in such a case be liable for such injury was a question left undecided by ■the court in the case above cited. In Bussy v. Donaldson, 4 Dall. 206, it was, however, decided that the owner is liable for such injury, although the pilot is a public pilot of the port ; and that the measure of compensation ought to be equivalent to the injury. And such would seem to be the opinion of the court in Fletcher v. Braddiek, 5 Bos. & P. 182, as it certainly was in The Neptune, 1 Dods. 4G7. A pilot, while he has charge of the vessel, is the agent of the owner. Yates V. Brown, 8 Pick. 23. The owner of a vessel, which, through the fault or negligence of any one on board, injures another vessel by running foul of her, is liable to the injured party, although there be a pilot on board, who has the en- tire control and management of the vessel. lb. See Pilot Boat Washington li. Ship Saluda, U. S. D. C. S. Car. April, 1831 ; Williamson v. Price, 16 Mart. ' ■ La. 399, 3 Kent (5th edit.), 175, 176. The owner must seek his remedy against the pilot, who is answerable as strictly as if he were a common carrier, for his default, negligence, or unskilfulness. See Yates v. Brown, 8 Pick. 23, 24, 3 Kent (5th edit.), 1 76. Whether the owners are liable for the acts of the pilot when the master is compelled by statute to take him on board, see Attor.-Gen. V. Case, 3 Price, 302 ; Mackintosh v. Slade, 6 B. & C. 657 ; The Christiana, 2 Hagg. Adm. 183 ; Curtis's Merchant Seamen, 195, 196, note. In a case where a steamboat was hired for the purpose of towing a vessel to which she was fastened, and both were under the direction of a licensed pilot, the owner of the steam- boat was held not entitled to damages on account of injury sustaiaed in the course of the navigation, and not caused by undue negligence of the pilot. Beeves v. The Ship Constitution, Gilpin, 579. Where the injury happened on the sea, &c., there is a familiar remedy for it in the Admiralty, in a suit for collision. The Thames, 5 Rob. Adm. 308; The Neptune, 1 Dods. 467; The Woodrop Sims, 2 Dods. 83 ; The Dundee, 1 Hagg. Adm. 109 ; Gale v. Laurie, 5 B. & C. 156. The neglect to take a pilot, where it ought to be done, will subject the owners to a suit for the damages that may happen to shippers and others by such default. See M'Millan v. U. Ins. Co., 1 Rice, 248 ; Keeler v. Fireman Ins. Co., 3 Hill, 250, 3 Kent (5th edit.), 176, note. And if captors neglect to take a pilot on board, ■ and the captured ship be lost in consequence of the neglect, a Court of Admiralty will decree restitution in value against them. The William, 6 Rob. Adm. 316. Of course pilots themselves are responsible for any damages occasioned by their own negligence or default (3 Kent, 5th edit. p. 176), and are entitled to a proper compensation for their services. See Laws of Oleron, art. 23 ; Molloy, B. 2, "■ 9< §§3,7; Gardner v. Ship New Jersey, 1 Pet. Adm. 223, 227 ; The Soh. Anne, 1 Mason, 508. Pilots, like other persons, may entitle themselves to salvage by performing services beyond the mere line of their duty. Dulany v. Sloop Pela- gic, Bee,- 212 ; Hobart v. Drogan, 10 Pet. 108 ; Hand v. The Elvira, Gilpin, 60; The Joseph Harvey, 1 Rob. Adm. 306; The Gen. Palmer, 2 Hagg. Adm. 176 ; ■ The City of Edinburgh, lb. 333. A suit lies in the Admiralty for compensation for pilotage performed on the high seas. The Sch. Anne, 1 Mason, 508. The pilot is a mariner, lb. See Hobart v. Drogan, 10 Pet. 108." 170 LAW OF CAEEIEES. [CHAP. VI son, as in hoisting the goods from the vessel, and the tackle or machinery breaks, and the goods are in consequence injured, the carrier is responsible.^ § 195. In a case somewhat remarkable in its circumstances, an action was brought against the master of a vessel navigating the rivers Ouse and Humber from Selby to Hull, by a person whose goods had been wet and spoiled. At the trial it appeared in evi- dence that at the entrance of the harbor at Hull there was a bank on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the mis- fortune in question, so that it had become perfectly steep, instead of shelving towards the river ; that a few days after this flood a vessel sunk by getting on to this bank, and her mast, which was carried away, was suffered to float in the river tied to some part of the vessel ; and that the defendant, upon sailing into the har- "bor, struck against the mast, which, not giving way, forced the defendant's vessel towards the bank, where she struck, and would have remained safe had the bank been in its fonner situation, but on the tide ebbing her stern sunk into the water, and the goods were spoiled : upon which the defendant tendered evidence to show that there had been no actual negligence. This evidence was rejected ; and it was further ruled that the act of God which could excuse the defendant must be immediate ; but this was too remote ; and the jury were directed to find a verdict for the plain- tiff, which they accordingly did. The case was afterwards sub- mitted to the consideration of the Court of King's Bench, who approved of the direction given by Mr. J. Heath at the trial, and the plaintiff succeeded in the cause. There was no bill of lading in the case, and no instrument of contract; and therefore, the question depended upon general principles and not upon the meaning of any particular words or exception.^ Now in this case the act of God in changing the bank was left out of the question, as not being the immediate cause, and therefore furnishing no ex- ' De Mott V. Laraway, 14 Wend. 225. * Smith V. Shepherd, cited in Abbott on Shipp. p. 384, as having been first tried at the Summer Assizes for Yorkshire, 1795, and the plaintiff was nonsuited, the judge being of opinion that no case of negligence was proved. The nonsmt was set aside by the Court of King's Bench, and a new trial granted, that the facts might be more fully inquired into. The account in the text is the evidence given at the second trial. In Easter Term following, a new trial was moved for, but a rule to show cause refused. CHAP. VI.] RESPONSIBILITY OF COMMON CARRIERS. 171 cuse. The fastening of the mast, if not the sinking of the ship to which she was attached, were the only remaining causes, and one, if not both, were obstructions placed there by human agency.^ § 196. Where the ship of a common carrier, in a voyage from Hull to Gainsborough, drove on to an anchor in the river Trent, and was, in consequence, sunk, and the goods on board injured, and the accident was occasioned by the neglect of the third party in not having his buoy out to mark the place where his anchor lay, it was held that the carrier was bound to make good the loss.^ § 197. In M' Arthur v. Sears, in New York, the doctrine that evidence of care, in case of loss proceeding from the intervention of man, and the agency of a third party, is inadmissible, is fully sustained and supported by an elaborate opinion of the court, de- livered by Mr. J. Cowen. It was an action against the owners of a steamboat as common carriers, where the boat stranded on en- tering the harbor in the night-time, in consequence of the master mistaking the light upon a stranded vessel for a light usually ex- hibited by the keeper of the beacon-light, by means whereof the plaintiffs sustained damage. It was held that nothing would ex- cuse the carrier except the two ordinary excepted cases, " inevit- able accident," without the intervention of man, and the acts of public enemies ; that neither of these exceptions existed in this case ; and that proof of the utmost vigilance on the part of the master was irrelevant and inadmissible in defence of the ac- tion.3 (a) § 198. A biwy, it has been held, is a mere artificial and movable mark of the proper channel, and to permit it to be classed among inevitable perils or acts of God, that cause and ex- ' See opinion of Cowen, J., in M' Arthur v. Sears, 21 Wend. 190. ' Trent Nav. Co. v. Wood, 3 Esp. 127, 4 Doug. 287, cited in Story on Bailm. § 518, where it seems to be considered that both parties were guilty of negligence ; the one in leaving his anchor without a buoy ; the other, in not avoiding it, as, when he saw the vessel in the river, he must have known that there was an anchor near at hand. Indeed, it is true, that all the judges intimated, that there was some slight degree of negligence in the defendant. " M' Arthur v. Sears, 21 Wend. 190. (a) In Merritt v. Earle, 31 Barb. 38, 29 N. Y. 115, a steamboat on the Hudson Eiver was wrecked by running upon the mast of a sunken vessel which had been capsized and sunk by a violent storm a day or two before. The carrier was held liable for goods lost by the accident. 172 LAW OF CARRIERS. [CHAP. VI. cuse a stranding, would be opposed to the policy of the law against common carriers, and would commence the application to them of another species of bailment, viz. that of carrying for hire by private conveyance, and not as common carriers.^ In this case the plaintiff shipped goods on board a vessel belonging to the defendant, which, by the bill of lading, were to be delivered in Georgetown (S. C), "the dangers of the sea only excepted"; but which the consignee refused to receive in consequence of their damaged condition. In an action for the loss of the goods, the defence was, that the loss of the vessel was occasioned by the shifting of a buoy, which had been placed in a particular position to indicate a particular channel. The proof was, that the buoy was in its proper place when the master left, the port, but some- times drifted, and which had actually occurred to the extent of one hundred and fifty or two hundred yards, some ten or fifteen days before the vessel was stranded ; that the master, in approaching the harbor, steered for the buoy, which was visible, supposing it to be where he had left it ; that within a few lengths of the ves- sel of this object, and upon perceiving that it was wrong, he at- tempted to turn his vessel, but in so doing her keel struck, by which the loss was occasioned. It was held that the excuse set up by the defendant did not constitute one of those perils that come within the proper meaning of the exception, as to the lia- bility of common carriers, called the " act of God," or the una- voidable " perils of the sea."^ § 199. It is true that it has been held in an action on a policy of insurance, that if in moving a ship from one part of a harbor to another, it becomes necessary to send some of the crew on shore to make fast a new line, and to cast off a rope by which she is made fast, and these men are impressed immediately before casting off ' Reaves v. Waterman, 2 Speer, 197, Evans, J., dissenting. ^ In an action against the owner of a sloop to recover from him as common car- rier, for goods shipped and lost, the charge of the presiding judge in the court below was, that from the contract with a common carrier, where lose is shown, the burden of proof is upon the defendant to show such act of God , or public enemy, as will excuse him ; that it is not a question of fault, as the liability of a carrier may attach when he is wholly faultless ; that it was for the jury to decide from the testimony, whether the loss was from a natural cause which no human pru- dence could avert. On appeal, the charge was held correct. Ross v. English, 2 Speer, 393. In Lawrence v. M'Gregor, in Ohio, Wright, J., at nisi prius, charged, that by whatever degree of negligence another boat might run down the carrier's, this formed no excuse. Wright, 193. CHAP. VI.] RESPONSIBILITY OF COMMON CAEEIEES. 173 the rope, and thereby the ship goes on shore, it is a loss by the perils of the sea.^ This decision has, however, as applicable to common carriers, been called in question. In M' Arthur v. Sears, it seemed to the court clear, that such an act as the sudden im- pressment of seamen could not be received to exempt a common carrier, either as the " act of God," or the " enemies of the state "; for, although it may be irresistible, yet so it is with many acts merely human, which may be coUusively committed.® That the carrier is an insurer to subserve the purposes of justice in any one particular case, indeed, cannot be contended, for the authorities are clear and imiform, that the law regards him as an insurer to subserve the purposes of policy and convenience ; and the one is to remove all temptation to confederate with thieves and robbers ; and the other to relieve the owner of the property from the neces- sity of proving any such confederacy.^ § 200. Secondly. As to losses by the " king's enemies," or the " enemies of the state," who are sometimes called the " public enemy." By these expressions, in the sense of the law, are un- derstood public enemies with whom the nation or state is at open war ; * and likewise pirates on the high seas, who are universally treated as the enemies of all mankind, and who are doomed to be treated and punished accordingly by the laws of civilized na- tions.^ (a) The government itself is called upon to protect its subjects from losses by such hazard, inasmuch as private citizens have not the power to furnish the security and protection re- quired.8 But by enemies is not to be understood thieves and robbers, who are merely private depredators, however much they may, in a moral sense, be at war with society ; and so rioters and ' Hodgson V. Malcom, 5 Bos. & P. 336. ° M' Arthur v. Sears, 21 Wend. 199. ' See the opinion of Gibson, C. J., in Hart v. Allen, 2 Watts, 114. * Story on Bailm. § 526. ' Ibid. §§ 512, 526; 1 Bell, Comm. p. 559, 5th edit.; 3 Kent, Com. 216, 299; Pickering v. Barclay, 2 KoU. Abr. 248, and Style, 132, and cited in Abbott on Shipp. p. 386 ;' Barton v. Wolliford, Comb. 56, and cited in Abbott ou Shipp. p. 386. In note m to the page of Abbott just referred to, he cites a passage from the -Digest, showing that the Eoman Law held a loss by pirates to be a loss by inevitable casualty : Si quid naufragio, aut per vim piralarum perierit, non esse iniquum, exceptionem ei dari. Dig. 4, 9, 3, 1. (Inde Labeo scribit.) ° Per Hubbard, J., in Thomas v. Boston R., 10 Met. 472. (a) Gage v. Tirrell, 9 Allen, 299. 174 LAW OF CAREIEKS. [CHAP. ■yi, insurgents are not considered public enemies, in the sense of the law, upon this subject.^ § 201. It has been said that here the question may often become material, whether we are to look to the immediate or to the re- mote cause of the loss ; for in some instances (as under the com- mon American bills of lading) the " perils of the seas " are except- ed, and not the acts of " the king's enemies." The case has been supposed, that a carrier ship should be driven by a storm on an enemy's coast, and she should there be captured by the enemy before she could be stranded, it seems then, it is said, that it is a loss by capture, as that is the proximate cause. It is again sup- posed, that the ship should be first stranded on the coast by the gale, and in consequence thereof should be afterwards captured by the inhabitants. In that case, it seems, it is said, that it would be deemed a loss, not by capture, but by the perils of the sea, upon the same principle ; for the gale is the proximate cause of the stranding.^ (a) § 202. It being well established, as a general rule, that no other acts but those which have above been treated of as recognized by the law, will exempt a common carrier from his Common-Law lia- bility, and the loss or injury being sufficient proof of negligence or misconduct, or of the intervention of human agency, the onus pro- ' See ante, § 191 ; Mors v. Slue, 1 Vent. 190, 238, cited in Coggs v. Bernard, 2 Ld. Kaym. 909. It has been held, under the act of Congress of 30th April, 1790, c. 36, § 8, that robbery is a substantive piracy, although the same robbery committed on land is not, by the laws of the United States, punished with death. United States v. Palmer, 3 Wheat. 610; United States v. Jones, 3 Wash. C. C. 209. The true definition of piracy by the law of nations, is robbery upon the seas. United States v. Smith, 5 Wheat. 153; United States ». Pirates, lb. 184. That robbers at sea are pirates, see 27 Ed. HI. c. 13, s. 2; Year Book, 2 Eich. lU., cited in note to Abbott on Shipp. p. 27. To constitute piracy, -within the above-mentioned act of Congress, by running away with the vessel, personal force and violence are not necessary. It is sufficient, if the running away be with an intent to convert the same to the taker's use against the will of the owner, or animo furandi. United States v. TuUy, 1 Gallis. 247; Story's note to 5th Am. ed., Abbott on Shipp. p. 27. The African States, having acquireld the character of established governments, and having regular treaties, are not at present con- sidered as pirates. Case of The Helena, 4 Kob. Adm. 3. * Story on Bailm. § 526, who refers to Hayn v. Corbett, % Bing. 205 ; Greene V. Emslie, Peake, 212 ; Waters v. Merchants' Ins. Co., 11 Pet. 213. (a) See Oakley v. Steam Packet Co., 11 Exch. 618, 34 Eng. L. & Eq. 530; and cases ante, § 163, note. CHAP. VI.] EESPONSIBILITY OF COMMON CAEEIEES. 175 handi is on the carrier to exempt himself.^ That the goods, in other words, have been delivered to the carrier, or his agent, and have never been delivered by him to his employer, or his agent or con- signee, is primd facie evidence of negligence or misconduct.^ (a) 1 "Everything is negligence which the law does not excuse." Dale v. Hall, 1 Wils. 281 ; ante, § 67. As to the rule in respect to private carriers for hire, see ante, § 61. ' Jeremy on Carr. 126 ; Story on Bailm. 529 ;. 2 Greenl. Ev. § 219 ; Forward V. Pittard, 1 T. R. 27; Riley v. Horn, 5 Bing. 217; Hastings v. Pepper, 11 Pick. 41 ; Bell V. Reed, 4 Binn. 127 ; Clark v. Spence, 10 Watts, 335 ; Colt v. M'Me- chen, 6 Johns. 160; Murphy v. Staton, 3 Munf. 239. "It is enough to show the damage done in order to render the common carrier liable ; and the burden of proof is on him to show, that it was occasioned by such cause as will exempt him from liability." Per Harper, J., in Ewart v. Sweet, 2 Bailey, 161. See, also, Smyrl v. Niolen, 2 Bailey, 421 ; Turney v. Wilson, 7 Yerg. 340 ; Whitesides v. Russell, 8 Watts & S. 44 ; Dunseth v. Wade, 2 Scam. 288 ; Atwood v. Reliance Transp. Co., 9 Watts, 87. (a) Davidson v. Graham, 2 Ohio State, 141 ; Hunt v. The Cleveljind, 6 Mo- Lean, 76 ; M'Manus v. Lancashire R., 4 H. & N. 327 ; The Sch. Emma Johnson, 1 Sprague, 527; Bearse v. Ropes, 1 Sprague, 331 ; The Ship Zone, 2 Sprague, 19. Where the carrier limits his liability by special contract as in the case of breakage or leakage, the burden of proof as to negligence is on the owner of the goods, and not on the carrier. Peninsular Steam Nav. Co. v. Shand, 3 Moore, P. C. N. s. 272 ; Ohrloff u. Briscall, Law Rep. 1 P. C. 231 ; Thomas v. Ship Morning Glory, 13 La. Ann. 269. But see Berry v. Cooper, 28 Ga. 543 ; Baker v. Brin- son, 9 Rich. 201 ; The May Queen, 1 Newb. Adm. 464 ; Tardos v. Ship Toulon, 14 La. Ann. 429 ; Roberts v. Riley, 15 La. Ann. 103 ; and post, § 267 ; Phillips V. Edwards, 3 H. & N. 813 ; Roehereau v. Bark Hausa, 14 La. Ann. 431. In Phillips V. Clarke, 2 C. B. N. s. 156, 5 lb. (Am. ed.) 881, there was a clause in the margin as follows : " Weight and contents unknown. Not accountable for leakage or breakage." Held, that this meant that the carrier was not liable for leakage and breakage the result of mere accident, where no blame was imputable to him, and that it was not intended to relieve him from responsibility for the result of his negligence and want of care. See Hunnewell v. Taber, 2 Sprague, 1. If the carrier is exempt from loss by leakage, this does not mean the ordi- nary leakage only. Ohrloflf v. Briscall, Law Rep.,'l P. C. 231. In English v. Ocean Steam Nav. Co., 2 Blatchf C. C. 425, it was held that where goods in cases are shipped by sea, and on delivery are found to be injured, it will be presumed that they were properly packed in a fit state for transporta- tion by the manufacturer or shipper, unless there is something in their appear- ance or condition to afford ground for a contrary inference, or unless some evi- dence to that effect is given, although the bill of lading contains the clause, " weight, contents, and value unknown." Where the bill of lading contained the clause, " not accountable for leakage, rust, or breakage, if properly stowed," held that the burden was on the carrier to show proper stowage. Edwards v. Steamer Ca- hawba, 14 La. Ann. 224. See post, § 212. 176 LAW OF CAERIEES. [CHAP. VL § 203. Although the genei-al rule is, that a common carrier is responsible for loss or damage where human agency is the imme- diate or proximate cause, the question may arise, how far his re- sponsibility would be affected by a loss which would and must have occurred without such proximate agency. There may have been, for instance, on the part of the carrier, misconduct, negli- gence, or deviation from duty, or his vessel may be unseaworthy; and a loss happen in consequence, and then is the carrier excused if it be shown that the same loss must have happened by light- ning ? Suppose the case of a voluntary deviation for so short a time, or under such circumstances, as that the vessel must have been overtaken by the same tempest, and the same accident must have occurred, the question would then arise, whether the owner of the vessel would be liable for the loss. Again, a vessel may be unseaworthy, and yet it may be clearly made to appear that the loss of goods on board on freight is wholly unconnected with the want of seaworthiness, as being stranded in a hurricane, or cap- tured by an enemy, is the loss to be borne by the carrier, or is it to be deemed a loss by perils of the sea, or by the public enemy ? In these supposed and other like events, by the Roman *Law, the carrier would not be responsible.^ If the bailee, to use the Ro- man expression, says Sir William Jones, be in mora, that is, if a legal demand have been made by the bailor, he must answer for any casualty that happens after the demand ; unless, in cases where it may be strongly presumed that the same accident would have befallen the thing bailed, even if it had been restored at the proper time ; ^ and the doctrine is supported by Pothier.^ § 204. It has been said that there are (and certainly therQ are) intimations in various Common-Law authorities which lead to a conclusion similar to the one above mentioned of the Roman Law ; and by some Common-Law aiithorities the doctrine of the Roman Law is directly sustained., although the subject has been considered still open to controversy.* In the discussion of it (it has been af- firmed by very high authority), that it deserves consideration, whether there is, or ought to be, any difference between cases where the misconduct of the hirer amounts to a technical or an ' Story on Bailm. § 413 c. " Jones on Bailm. p. 70. * Pothier, Pr@t h Usage, 55 to 58; Pothier on Oblig. n. 143, 627, 628; and Story, sup. • Story on Bailm. § 413 d CHAP. VI.] RESPONSIBILITY OP COMMON OAEEIEES. 17T actual conversion of the property to his own use, and cases where there is merely some negligence or omission or violation of duty in'regard to it, not conducing to, or connected with, the loss.^ § 205. As to the Common-Law authorities in reference to the doctrine that misconduct, negligence, &c. on the part of the car- rier, not conducing to, or not connected with, the loss, should not make him answerable, it has been said that if goods are improper- ly stowed on the deck of a ship, and they are washed away by the violence of the storm ,^the owner of the ship will be liable for the loss, although caused by the perils of the sea ; unless the danger were such as would equally have occasioned the loss if the goods had been safely stowed undfer deck.^ (a) In a case in North Caro- lina, it was expressly held, that although taking a full price and stowing upon deck, will subject the owner of the vessel to pay damage, if what is so placed be thereby lost or injured, yet if that did not occasion the loss or injury, he will be no more liable for damage to that part of the cargo than for damage to the rest of it.^ If a common carrier receives goods directed to be carried in a par- ticular manner (as, for instance, " Glass with care, this side up "), he is undoubtedly required to carry them in that manner and po- sition ; and if negligence and disregard of the directions are clear- ly proved, the carrier is only obliged to prove that the loss happen- ing was occasioned by some cause not attributable to this disregard of the direction.* Where goods were injured on board a canal- boat by the boat's striking against a stone at the bottom of the canal, by which a hole was knocked in her bottom ; in an action for the injury the court said: " The goods in question might have become wet in various ways, and thus have received the injury complained of without the boat, in which they were on the canal, being in the least deficient,, but on the contrary, perfectly tight, stanch, and strong ; and if so, it might be doing great injustice to ' Ibid. See ante, § 58. " The Rebecca, Ware, 188. * Gardner v. Smallwood, 2 Hayw. 349. ■ * Hastings v. Pepper, 11 Pick. 41. See Camoys v. Scurr, 9 Car. & P. 383. (a) See The Water Witch, 1 Black, 494. Where a common carrier, who was sued for damage done tobales of cotton, pleaded that the cotton was carried in an open boat in accordance with a custom known to the plaintiff, and that it was only damaged by rain on the voyage, held that the carrier was not liahle. Chev- aillier v. Patton, 10 Texas, 344. 12 178 LAW OF CARBIEES. [CHAP. VI. infer a breach of the promise from that circumstance." ^ If a ship be not seaworthy and is lost, although the loss is occasioned by a peril of the sea wholly unconnected with unseaworthiness, the carrier will not be liable for the loss, although he would be liable if that defect was the cause of the loss.^ § 206. In. the case of Dayis v. Garrett,^ there is a very pointed intimation, that if the loss must have happened to goods on board a vessel, without the misconduct by which it was occasioned, the owner of the vessel would not be liable for it. The facts in this case were, that the master of a barge deviated from the usual course, and during the deviation a tempest wetted the lime which was on board, and this set fire to the barge, whereby the whole was lost. The objection taken by the counsel to a recovery by the plaintiff for the amount of the loss was, that there was no natural or necessary connection between the wrong of the master in tak- ing the barge out of its proper course and the loss itself ; for that the same loss might have happened by ithe very same tempest, if the barge had proceeded in her direct course. Tindal, C. J., in giving the opinion of the court, answered this argument by saying: ' Humphreys v. Reed, 6 Whart. 435 ; and see Clark v. Spence, 10 -lb. 336. As to the insufficiency of vessel: Per Lord Denman, C. J., in Hollingworth ». Brodrick : " The defence of unseaworthiness is in general applied to the time when the risk commenced ; that is not done here, nor is the loss stated to have happened in consequence of the unseaworthiness supervening. I own I feel a doubt,- whether if it were distinctly averred, that the ship had by gross negli- gence been brought, during the voyage, to a condition in which she would not be insurable, that might not be a defence. But I think, that if it were clearly made out, the assured could not say that the loss was by perils insured against." By Patteson, J. : " The defence is put entirely upon the fact that the ship, during the voyage, was wnseaworthy. It is not stated that she became so through neg- lect to repair from time to time, and that that .occasioned the loss. I do not know that that would have been a defence. But it is only said, that by some means the ship was greatly damaged. It is clear that the implied warranty of sear worthiness is satisfied, if the ship is seaworthy at the commencement of the risk." Hollingworth v. Brodrick, 7 A. & E. 40. In an action in Maryland, by the ship- per of goods against the master of a vessel, who was also consignee of the cargo, in which it appeared that the vessel was bound to Barbadoes, but was obliged to put into Bermuda, where she was condemned and the cargo sold, it was held, that the plaintifi" might show that the vessel was unseaworthy at the commence- ment of the voyage, and recover an amount retained by the defendant for freighti Dickinson v. Haslett, 3 Harris & J. 345. ' Story on Bailm. § 418 d, referring to The Paragon, Ware, 322. » Davis V. Garrett, 6 Bing. 716. CHAP. VI.] EESPONSIBILITY OF COMMON CAEEIEES. 179 " If this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plain- tiif to recover. For, if a ship is captured in the course of devia- tion, no one can be certain that she might not have been captured if in her proper course. And yet, in Pai'ker v. James,^ where the ship was captured whilst in the act of deviation, no such ground of defence was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predict that she might not equally have struck upon another rock, or met with the same or another storm, if pursuing her right or ordinary voyage. The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a par- cel by the wrong conveyance, and a loss had thereby ensued ; and yet the defendant in that case would undoubtedly be liable." But the real answer to the objection taken by the counsel, the learned judge proceeded to say, was, " that no wrong-doer can be allowed to apportion or qualify his own wrong ; and that as a loss has ac- tually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up, as an answer to the action, the bare possibility of a loss, if his wrong- ful act had never been done. It might admit of a different con- struction, if he could show, not only that tlie same loss might have happened, but that it must have happened, if the act complained of had not been done." § 207. In Bell v. Eeed, in Pennsylvania,^ Mr. J. Brackenridge seems to have held, at the trial, that the carrier was liable for a loss by unseaworthiness, not occasioned by the unseaworthiness. But as the jury found a verdict for the carrier, that point was not material, tipon the motion for a new trial. Mr. C. J. Tilghman, in delivering the opinion against a new trial, said : " The man . who undertakes to transport by water for hire, is bound to pro- vide a vessel sufficient, in all respects, for the voyage, well manned, and furnished with sails and all necessary furniture. If a loss happens through defects in any of these respects, the carrier must make it good." It is true the learned judge added : " The law was laid down fairly, and the fact left to the jury." But as no complaint was, or could be, made by the only party (the defendant) who had a right to complain of the ruling at the trial ^ Parker v. James, 4 Camp. 112. ' Bell v. Reed, 4 Binn. 127. . 180 LAW OF CABEIEES. [CHAP. YI. against him, he having a verdict in his favor, it may be doubted if the court meant at all to affirm the doctrine beyond the point by the chief justice.^ The important case of Hart v. Allen, however, in the Supreme Court of Pennsylvania,^ settles the doc- trine in that State. In this case it was held in an action against a common carrier for a loss, that it is not sufficient to entitle the plaintiff to recover, that there was a defect about the vessel, or want of skill in the carrier ; but it must also be shown that such defect or want of skill contributed, or may have contributed, in some measure, to occasion the loss ; that it is the consequence of negligence, not the abstract existence of it, for which a carrier is answerable.^ (a) ' Comment by Story on Bailm. note 2, to p. 526, 4th edit. ^ Hart V. Allen, et al., 2 Watts, 114. " In this case, the above-mentioned case of Bell v. Reed is thus commented on by Gibson, C. J., who delivered the opinion of the court : " Standing thus on the principles of the contract, it remains to be seen how the questions stand on authority. The only thing in the books like a judicial decision of the point against the carrier is the already quoted nisi prius opinion by Mr. Justice Brack- enridge, which is supposed to have been affirmed by this court in bank, and which, therefore, merits a particular examination. It had relation to a case of stranding by storm, in which the point of defence wa;s, that the loss had been occasioned by the act of God ; to rebut which, evidence was given of want trf seaworthiness by reason of certain defects in the cable and hull. The matter was put to the jury as a question of fact, and found for the carrier, and the owner of the goods appealed from an adverse determination of his motion for a new trial. The judge certainly did charge that it lies at the bottom of the contract, as a condition on which the custody of the goods is charged, that the vehicle be a good one ; and that if it be not, the carrier cannot, to excuse himself froin a subsequent loss, allege that it was inevitable. That he cannot urge the act of God as an excuse, when he himself had not used the human means and precautions which %e h^d undertaken and was bound to use ; and that even a stroke of lightning, or a squall in the harbor's mouth, ought not to be alleged by one who has fraudulently taken goods into an unfit vessel. That he called it fraud to do so ; and that it is the faithful carrier only who can be excused on the ground of an act of Providence. That in the case of an accident from winds or waves, it is impossible to say, but the un worthiness of the vessel may have contributed to render the loss inevitable ; and that unworthiness being established, the legal presumption is, that it was the cause of the accident. This is the substance of the charge ; and it is evident from it, that in fixing the carrier with consequences to which his negligence may have in nowise contributed, the judge considered the law as dealing with him for a fraud. In the remarks subjoined to his report of the trial, he avows that his opinion is not founded on the authority of adjudged cases, but on anedogies drawn from thecon- (a) Collier u. Valentine, 11 Mo. 299. CHAP. VT.] EESPONSIBILITY OF COMMON CARRIERS. 181 § 208. The subsequent case of Reed v. Dick, in Pennsylvania,^ is likewise an important case on the subject. It was held, in this tract of insurance, though it be notorious that a breach of the warranty of sea- worthiness is not visited on the assured as a penalty, but operates to avoid the polioy by the failure to perform it as a precedent condition. Our present business, however, is not with the reasons of the judge, but to ascertain exactly how far bis position was established by the judges in bank. In delivering the opinion of the court, the chief justice remarked, that there was no complaint of error of law ; and that the law had beeajaid down fairly, the fact of seaworthiness having been left to the jjiry. The generality of this remark is to be qualified by the subject-matter of which it was predicated. Undoubtedly there was no room for complaint in respect of the law, nor could there be, by the owner of the goods, who, as the appellant from a verdict against, him, was alone competent to com- plain ; for the law was certainly laid down fairly, to say the least, as to him. Besides, all the remarks of the judge which were strictly relevant to the case before him, in which the species of the alleged unworthiness, especially the de- fectiveness of the cable, would have had an immediate and powerful effect in leading to the catastrophe, seem to have been warranted by the evidence. Now it was these remarks with which, on the motion for a new trial, the court in bank had to do ; and it would have been a departure from the known habit of the chief justice, and perhaps even from the dictates of propriety, to have made the real or supposed errors of the judge, in an abstract principle, the subject of criti- cal remark. But that the chief justice admitted the solidity of the abstract prin- ciple is made more than doubtful by his own compendious statement of the princi- ple which he deemed applicable to the case. ' The man,' said he, ' wjbo undertakes to transport goods by water for .hire is bound to provide a vessel sufficient in all respects for the voyage, well manned and furnished with sails, anchors, and all necessary furniture. If a loss happens ilirough defect in any of these respects, the carrier must make it good.' What he would have said of a loss admitted to have happened not through defect in any of these respects, it is easy to conjecture from the gnardedness of his expression ; and I therefore take the adjudication of the court in bank to be an authority against the principle to which it has been cited ; so that the judgment below, in the case before us, rests on the opinion of Mr. Justice Brackenridge alone, not only unsupported, but contradicted in an important pairticular by the other judges. If, as I have said, want of seaworthi- ness were a fraud, it would vitiate the contract entirely ; yet such a notion as the avoidance of the contract for this cause, has, I believe, never been entertained. That the law would presume that the loss arose from unworthiness, admitted or established, is a more reasonable position ; but would the presumption, as the judge seemed to think, be conclusive ? I am at a loss to conjecture why it should. The notion seems to rest on the same foundation as the avoidance of the contract for fraud, and is evidently untenable in a case where the reverse of the presumption is admitted, or what is the same thing, is a postulate of the argument. The tiaXy other authority which seems to bear at all on the point, is the case of Amies v. Stevens, 1 Stra. 128, cited by Justice Brackenridge, but more consonant, it seems ' Reed v. Dick, 8 Watts, 480. 182 LAW OF CARRIERS. [CHAP. VI. case, that an opinion expressed by the crew of a Tessel, in consul- tation with the master, on the soundness of a link in a chain cable which they were paying out to prevent the vessel from drag- ging her anchors, is admissible in proof of its adequacy to the ordinary exigencies of the navigation ; that evidence that ofher vessels driven into port by the same storm were stanch and strong as any employed in the trade, is competent to show its violence; and that the sails were sufficient, is inoperative where the loss is assumed to have been occasioned exclusively by the insufficiency of the cable. In this case the opinion of the court was delivered by Gibson, C. J., as follows : " Whether we look to the carrier's Common-Law responsibility,' or to the limit assigned to it by'tlie exception in the bill of lading, we must hold him bound, at the peril of conseqiiences actually produced by any defect in that par- ticular, to provide a vessel sufficiently furnished with tackle and to me, to the opinion of Chief Justice Tilgfaman. The hoy of a carrier with goods on board was sunk, coming through a bridge, by a sudden gust of wind. The owner of the goods, insisting that the carrier was chargeable with negligence in going through at such a time, offered evidence to show, that if the hoy had been in good order, it would not have sunk with the stroke it received ; and thence in- ferred the carrier liable for all accidents that might have been prevented by put- ting the goods into another hoy. But Chief Justice Pratt held the carrier not liable, the damage having been occasioned by the act of God. For though the carrier ought not to have ventured to shoot the bridge if the bent of. the weather had been tempestuous ; yet this being only a sudden gust of wind, had entirely differed the case. And no carrier, he said, is obliged to have a new carriage for every journey, it being suiBcient if he provides one which, without any extraor- dinary accident, such as this was, will probably perform the journey. From this, it seems to have been the opinion of the chief justice, that to- render a carrier lia- ble for an act of Providence, it is necessary that his own carelessness should have co-operated with it to precipitate the event. But the case is of greater value in ascertaining the requisite degree of ability and skill in the captain and crew ; which, according to the principle just stated, is not to be measured by the exigen- cies of a crisis, but by its sufficiency to conduct the vessel safely to the place of destination in the absence of extraordinary accident. Nor is the carrier bound to provide a captain who has already made a voyage as such, if he has acquired H competent share of skill in any other station. The first question, therefore, will be, whether the captain and crew of the boat had the degree of abihty'and skill thus indicated ; and if it be found that they had not, then the second question will be, whether the want of it contributed in any degree to the actual disaster j but if either of these be found for the carrier, it will be a decisioif of the cause. It seems, therefore, that, though the exceptions to the admission .of the deposi- tion are unfounded, the cause ought to be put, on these principles, to another jury." CHAP. VI.] RESPONSIBILITY OF COMMON CAEEIEKS. 183 apparel to encounter the ordinary dangers of the voyage ; not its extraordinary and unforeseen dangers, against which it behooves the merchant to secure himself by a policy of insurance. It might be supposed, therefore, that seaworthiness could not enter into the question of a carrier's liability for a loss from an act of God ; or, to speak more reverently, inevitable accident, with which it might seem to have no connection. But the term is used com- paratively, and as indicating a result, not exclusively of irresisti- ble force, but of force above what is ordinarily experienced ; and deficiency of equipment for ordinary exigencies may consequently be the effective cause of loss from an extraordinary peril, which would not otherwise have been disastrous. Who can set bounds to the success of human exertion by ordinary means, without which the end would be unattainable ? By the energy of the crew, many a ship, whose fate would have been sealed by the breaking of a brace or the snapping of a spar, has been rescued from a lee shore. The longer a sinking ship can be kept lying afloat, the greater her chance of- succor ; and of the benefit of a chance, the merchant or insurer is not to be deprived ; but he would be deprived of it by a defect in the pumps, or by anything else that would hasten the catastrophe. There may, however, be disasters so sudden and so overwhelming as to bid defiance to pre- caution ; and in respect to these, want of preventive apparatus for accidents of another kind would not preclude the carrier from in- sisting on exemption from a loss occasioned by one of them as an act of Providence : as we ruled in Hart v. Allen & Grant, 2 Watts, R. 114, where the damage was induced by capsizing in a squall. Now as the proximate cause of the loss in the case at bar was the parting of a cable, its actual sufiiciency for ordinary purposes without regard to the master's knowledge of its condi- tion was the point on which the cause turned ; and the objection to the opinion of the crew in consultation with him was not for its supposed incompetence in the abstract, but for tlie want of an attestation of it by the oaths of those who had expressed it. I remember not what, or whether any, has been given for the ad- missibility of such evidence in cases of jettison ; but it seems to be admissible on general principles, as part of the res g-estes. Seamen are expert in nautical affairs, and their judgment in matters of opinion touching the working and preservation of a ship may be as satisfactorily attested by their acts when impelled 184 LAW OF CAEKIEKS. [CHAP. VI. by motives of duty and self-preservation, as if it were given un- der the sanction of an oatli. It was remarked by Mr. Justice Story, in Tidmarsh v. The Washington Insurance Company, 1 Mason, R. 439, that the standard of seaworthiness is arbitrary and dependent on the opinions of nautical men; and certainly their opinions cannot be better manifested by their oaths than they are by their acts, which go to make up the usages of the port. Besides, when the rejected evidence was proposed, no other proof had been given of the supposed flaw in the cable than that a mark had been put upon a link in it by a hand who had left the vessel; and surely to the judgment of that hand, thus indicated, might be opposed the declared judgment of the crew. The evidence of the condition and qualities of other vessels which were unable to keep the lake was competent to show the violence of the storm ; but inoperative, as the turning point of the cause was the suffi- ciency of the Parmer's anchors and cables. Evidence of the con- dition of her sails, also, was competent in the first instance, but inoperative. As already observed, the carrier was bound to pro- vide a vessel adequate to the navigation ; but according to Hart V. Allen, the question of adequacy arises only where inadequacy could have contributed to the event. Now it appears, without contradiction, that when the chain-cable parted, the other one was slipped, and that the vessel was beached by means of her sails at the most eligible place in the harbor. It is clear, therefore, that the sails did their office to the extent of the service required of them." § 209. In respect to the thing bailed, it has been shown that, supposing the carrier to be accustomed to carry money for all pe^ sons indifferently, as well as goods, or that it is the usage of the trade or business to take both, the responsibility peculiar to a common carrier extends to both.^ So it has also been shown, that the responsibility covers the baggage of passengers, in stage- coaches, railroad-cars, and steamboats ;^ but that letters delivered at the post-office,^ and slaves delivered to be transported from one place to another,* are things and persons, the undertaking to carry which does not impose a common carrier's responsibility. § 210. The rule of responsibility of course does not cover losses arising from the ordinary deterioration of goods, in quantity or ' Ante, § 100, et seq. ' Ante, § 107, et seq. ' Ante, § 117, et seq. * Ante,% 122. CHAP. VI.] RESPONSIBILITY OF COMMON CAElllEES. 185 quality, in the course of transportation, or from their inhe^-ent in- firmity and tendency to decay, or which arise from the neglect or misconduct of the owner or shipper of the goods. The carrier, for instance, is not liable for any damage from the ordinary decay of oranges, or other fruits in the course of their voyage.^ (a) But the master of a vessel is, nevertheless, boxind to take all rea- sonable care of such bona peritura, and if they require to be aired or ventilated, he must take the usual and proper methods for this purpose.^ (6) § 211. So the carrier is not responsible for the ordinary dimi- nution or evaporation of liquids, or the ordinary leakage of the casks, in which the liquors are put, in the course of transporta- tion, or from their acidity or tendency to effervesce ; as his im- plied obligation does not extend to such cases,^ (c) unless to pre- vent loss from such causes is within his control. An action was brought against the owners of a steamboat on account of loss on a cargo consisting of over two hundred barrels of molasses, which the bill of lading stated to have been received in good order and well conditioned, and to be delivered at Pittsburg. The cargo was brought to Louisville, and the state of the water in the river not permitting the boat to proceed to Pittsburg, the molasses was put into a warehouse, and afterwards (with a little delay) re- shipped, and arrived, in the usual time, at Pittsburg. On deliv- ery there, it was discovered that two of the barrels were missing, seven of them empty or nearly so, and some others only half full. Information was elicited from many witnesses as to the trade on the Western waters, and on the nature of the article of molasses, and the trade in it ; for instance, that, in warm weather, from fermentation, a barrel will be full, and even running out at the bunghole, on its being moved and carried to a dray, although ' 3 Kent, Com. 299 - 301 ; Story on Bailm. § 492 a, 4th edit. ' Abbott on Shipp. p. 371 ; see Davidson v. Gwynne, 12 East, 381. ' 3 Kent, Com. ub. sup. ; Story on Bailm. uh. sup. If a pipe of wine, upon the ferment, burst in the wagon, when gently driven, the carrier is not liable ; for the fault is in the wine, and the insurer does not insure against the defects of the thing itself. Farrar v. Adams, Bull. N. P. 69, cited 1 Dane, Abr. 479. (a) Ship Howard v. Wissman, 18 How. 231 ; The Brig CoUenberg, 1 Black, 170. (b) See The Brig Colleuberg, 1 Black, 170; The Bark Gentleman, Olcott, Adm. 110. , (c) Nelson v. Woodruff, 1 Black, 156. 186 ' LAW OF CARKIEBS. [CHAP. VL ■when still, and in a cool place, the cask will not be full by one fourth or one third ; that, on account of the fermentation and ex- pansion of the molasses, it was necessary to have small vent holes on the top of the cask to prevent its bursting ; and that'through these vent holes, from three to five gallons will be lost between New Orleans and Pittsburg, if the voyage is in warm weather, as was the voyage in question. It appeared also, that the article in warm weather loses more or less by leakage, according to the goodness of the casks. It was conceded that the lost barrels must be paid for ; but the question was, whether the deficiency in the others was the consequence of defect in the casks, or of bad stow- age, or other causes for which carriers were answerable. The following charge to the jury in the court below was held to be correct: "No care or' attention of the carrier could prevent the fermentation and expansion of the molasses in warm weather, by which a considerable quantity of molasses would be lost ; this loss, therefore, arising from a law of nature, was necessary, and came within the exception of the act of God. The defendants ought not to be answerable for loss occasioned by the peculiar nature of the article, carried at that season of the year, nor leakage arising from secret defects of the casks, which could not have been ob- served or remedied after the casks were stowed away ; but for aU other losses, not thus occasioned, or shown by the defendant to have originated from causes beyond their control, they are an- swerable." A-nd the court held that unless the defendant could prove that a fraud and imposition was practised upon him, he could not contradict the bill of lading signed by him ; and that if the barrels of molasses were injured in their delivery to the car- rier, and he saw and knew it, this would not be such a latent de- fect as would excuse him from liability for loss, beyond that which was occasioned by the peculiar nature of the article carried.^ § 212. With regard to the manner of putting up and packing of the goods, if it is not done in a proper manner by the owner or shipper, the carrier is not responsible for loss in consequence thereof.^ For careful stowage of the goods on board the vessel, ' Warden v. Greer, 6 Watts, 424 ; and see Leech v. Baldwin, 5 lb. 446 ; Gowdy V. Lyon, 9 B. Mon. Ill * 3 Kent, Com. ub. sujf. ; Story on Bailm. ub. sup. Upon this subject we copy the following from Walford's Summary of the Law of Railways, London and Bos- ton, 1850 : " The ground of defence, that the injury weis owing to some internal defect, or to the improper mode of packing, &c., of the articles themselves, is one CHAP. VI.] EESPONSIBILITY OF 'COMMON CAKEIERS. 187 the carrier is responsible. <^«) The vessel must be furnished with proper dunnage (pieces of wood placed against the sides and bot- tom of the hold) to preserve the cargo from the effects of leak- age, according to its nature and quality. And care must be taken by the master (unless by usage or agreement this business is to be performed by persons hired by the merchant),^ (&) so to stow and arrange the different articles, of which the cargo consists, that they may not be injured by each other, or by the motion or leakage of the ship.^ (c) It is evident, therefore, that the deci- that in various instances has been set up by railway companies. In Norman v. London and Brighton Railway Co., which was an action for an injury to some chairs sent by the defendants' railway ; the company attempted to show that the chairs were of inferior materials, and badly packed, though ultimately the plain- tiif had a verdict. Home Circuit, May, 1843. Again, in Lucus v. Birmingham and Gloucester Railway Co., which was an action against the company as car- riers for a loss by leakage from a flask of essential oil of lemons, the defence was that the loss arose from the improper packing of the case containing the flask, and not from any negligence on the part of the company. The plaintiflT, however, obtained a verdict. Oxford Spring Assizes, 1842. So in Rutley u. Southeastern Railway Co. (Spring Assizes, 1845, Maidstone). This was an action for the loss of -some linen goods sent by the defendants' railway, owing, as it appeared, to sparks from the engine getting inside the truck, and setting the bale containing the linen on fire. The defence was that the goods were not properly packed, the tarpaulin which covered the truck having been full of holes. The plaintiff, how- ever, had a verdict. And where a carrier received several packages, one of watches, another of flutes, &c., and put them all up in one"bag, and so sent them by railway, and the flutes were injured, it was left to the jury to say whether the accident was attributabte to the carelessness of the company, or whether the plain- tiff', by his own improper proceeding, contributed to the disaster ; the mode of packing adopted by him having thrown upon the company a more onerous task than if they had received the articles separately. Smith v. Birmingham Railway Co., Midland Circuit, 1845." ' Fletcher v. Gillespie, 3 Bing. 635. ' Abbott on Shipp. p. 346. " The master," says Lord Lyndhurst, C. B., " as . servant of the owner, is bound to superintend the stowage, and if in consequence (a) The carrier is not liable if the goods are stowed in the usual manner. Lamb v. Parkman, 1 Sprague, 343. See also cases in n. (c). " Not accounta- ble for leakage and breakage " does not exempt the master from due care in stowage. Phillips v. Clark, 5 C. B. n. s. (Am. ed.) 881, 2 lb. 156 ; Ohrlofi*!). Briscall, Law Rep. 1 P. C. 231. See also Hunnewell v. Taber, 2 Sprague, 1. (b) Ohrlofi" V. Briscall, Law Rep. 1 P. C. 231 ; Thomas v. Ship Morning Glory, 13 La. Ann. 269. (c) Sack V. Ford, 13 C. B. n. s. 90 ; Rochereau v. Bark Hausa, 14 La. Ann. 431. See Blaikie v. Stembridge, 6 C. B. n. s. 894, cited ^osi, § 518. If a ship is chartered, the general owners retaining the possession by their servants, the master 188 LAW OF 'CARRIERS. [CHAP. VI. sion of a controversy, in respect to this particular subject, very much depends upon the facts which distinguish it. In an action against the proprietors of a steam-vessel to recover compensation for damage to goods sent by them as carriers, if, on the whole, it be left in doubt what the cause of the injury was, or if it may as well be attributable to "perils of the sea" as to negligence, the plaintiff cannot recover ; but if the perils of the seas required that more care should be used in the stowing of the goods (arti- cles of silk and linen) on board than was bestowed on them, that of improper stowage the owner has been called upon, and has satisfied any claim for damages, the master is liable to him. But wTiere the master is told by the owner that some one will come to superintend and do that, which would other- wise be his duty, he is exonerated. If afterwards, that intention is changed, ' the owner should communicate it to the master." Swainston v. Garrick, Ex- chequer Trin. T. 1833, 2 Law J., N. s. 255. See also the Schooner Reeside, 2 Sumn. 567. As to leakage of a vessel caused by rats, see ante, §§ 169, 170. If (merchandise in good order is intrusted to a carrier, and it arrives at its destina- 'tion in a damaged state, when he holds it subject ft> freight, he is liable for the value ; and if he pretends that fraud and concealment we're practised upon him, the onus of proof lies upon him. Hart v. Jones, Stuart, Low. Canada, 589. and crew, and the charterer puts up the vessel as a general ship for freight, the owners are liable for improper stowage to a shipper who is ignorant of the char- ter party, although the goods are stowed by a stevedore appointed by the charter- ers. Sandeman v. Scurr, Law Eep. 2 Q. B. 86 ; The St. Cloud, Brow. & L. Adm. 4. The carrier is liable to a shipper for damage done to his goods by other goods stowed in the hold of a vessel, without allegation or proof of any wilful or negligent default on the part of the carrier. Gillespie v. Thompson, cited 6 Ellis & B. 477, note, 36 Eng. L. & Eq. 227 ; Brousseau v. Ship Hudson, 11 La. Ann. 427; Cranwell v. Ship Fanny Fosdick, 15 lb. 436; The Bark Col. Ledyard, I Sprague, 536 ; Bearse v. Ropes, 1 lb. 331. If, however, the goods are stowed together in accordance with an* estabUshed usage, the carrier is not liable, if he is not in fault. Clark u. Barnwell, 12 How. 272; The Bark Col. Ledyard, supra; Baxter v. Leland, 1 Blatchf C. C. 526, Abbott, Adm. 348. See contra, Cranwell v. Ship Fanny Fosdick, supra. And the carrier is liable, although the goods are stowed in the usual way, if the injury is caused by the goods of the third party being in bad condition when put on board. The Bark Cheshire; 2 Sprague, 28. Shippers are liable for putting on board dangerous goods, the character of which cannot be discovered by easy inspection. Brass v. Maitland, 6 Ellis & B. 470, 36 Eng. L. & Eq. 221. See Hutchinson v. Guion, 5 C. B. n. s. 149 ; Alston v. Herring, 11 Exoh. 822, 36 Eng. L. & Eq. 475 ; Farrant v. Barnes, II C. B. N. s. 553 ; Ohrloff v. Briscall, Law Rep. 1 P. C. 231. And the chai^ .terer of a ship is liable to the owner thereof for damage done to goods of other shippers which the ship-owner had to pay for, although the charterer did not know, and had no cause to suspect, that the article causing the damage would do BO. Pierce v. Winsor, 2 Sprague, 35. CHAP. VI.] EESPONSIBILITY OF COMMON CAEEIEES.- 189 will be negligence for which the owners of the vessel will be lia- ble. The jury, said Lord Denman, in the course of his summing up, were to see clearly that the defendants were guilty of negli- gence before they could find a verdict against them.^ (a) § 213. A common carrier, when he is expressly directed t(f carry goods delivered to him in a particular manner and position, is bound to carry them in that manner and position ; and if he carries them otherwise, and they are lost or damaged, the burden will be upon him to prove that the loss or damage was in no degree attributable to his breach of contract, but was occasioned solely by the act of God, or the public enemy, or the act or fault of the owner himself. Thus, a box containing a glass bottle filled with the oil of cloves was delivered to a common carrier, marked " Glass — with care — this side up " ; and it was held, that this was a sufficient notice of the value and nature of the contents, to charge him with the loss of the oil occasioned by his disregarding) such direction. It was in evidence, and not denied, that the box was stowed in such a manner that the marked side was not kept up, and consequently the large bottle, which was broken by some means in the passage, after it was stowed and before its arrival, bore its weight upon its side, and not on its bottom.? But if glass, china, or any brittle or perishable commodity, requiring great care for its safe conveyance, is bailed to a carrier, enclosed in boxes, and no directions are given as to how the boxes are to be carried, and no notice of the peculiar nature of their contents, the carrier is only bound to take the ordinary care of the boxes which their general character and appearance seem to require. In such case, the owner of the boxes is culpable for concealing the pecu- liar nature of their contents.^ ' The verdict was for the plaintiff. Camoys v. Scurr, 9 Car. & P. 383. ' Hastings v. Pepper, 11 Pick. 41. , ' See Webb, in re, 6 Scott, N. R. 956. In the Superior Court of New York, (a) If goods are injured by any cause for which the carrier is not responsible, he is still bound to take all proper and reasonable care of them, to preserve them from further injury. He is not bound to repair them. Charleston S. B. Co. v. Bason, Harper, 262. But if the goods are wet he should, if possible, unpack and dry them. Chouteaux v. Leech, 18 Penn. State, 224 ; Blocker o. Whittenburg, 12 La. Ann. 410 ; Propeller Niagara v. Cordes, 21 How. 7. And to do this he may open the packages in which the goods are. Bird v. Cromwell, 1 Misso. 81. He is not bound, however, to delay his voyage for this purpose. Steamboat Lynx V. King, 12 Misso. 272. If hides need cleaning, he should have it done. Kogers u. Murray, 3 Bosw. 357. 190 tAW OF CAEEIERS. ' [CHAP. Vt § 214. A common carrier is liable for the safety of animals of the brute creation delivered to him for transportation, though it has been seen he is not liable, as such, for the transportation of the persons of slaves. Where a dog had been delivered to a car- cier, and the animal escaped by means of slipping from the noose about his neck, the carrier was held liable, because he had the means of seeing that the animal was insufficiently secured ; and Lord BUenborough said, that the delivery of the dog was not like the case oi goods imperfectly packed, since there the defect is not visible ; but the defendant had the means of seeing that the dog was insufficiently secured, and he was bound to lock up the ani- mal, or take other proper means to secure the animal.^ If a horse escapes from his fastenings on board of a steamboat and is lost in April 26, 1848, Judge Oakley presiding,' there was an action (Cariss v. John- ston) to recover damages for injuries done to a case of looking-^assea shipped on .board the defendant's vessel. In his charge to the jury, the learned judge said: " I do not consider that common carriers are in all cases responsible for not deliv- ering property in a sound state. They are not warrantors that the property shall remain safe and sound. They are only warrantors for its safe delivery, 'and their further responsibility depends upon whether they use due care and diligence in carrying the property, or that negligence can be proved against them by any omission on their part to do what prudent men should do under such circum- stances. In the present case, no act, or omission of an act, has been proved to show that the defendants were negligent, or that they did anything to injure the property. If they are responsible, it arises from an inference of law, that if prop- erty is given to common carriers, for transportation, and when given to them is in a sound state, and that it is in an unsound state when delivered, it is the duty of the common carriers to show how it was injured. For if the property was in a sound state when delivered to the carrier, and found to be injured when deliv- ered to the owner, it would be imposing on him a great hardship to be obliged to show some act of negligence on the part of the carrier. For in ord^ to do so, he must go on board the vessel to come at the facts of the case, and possibly could not succeed in eliciting them. If in this case the jury were satisfied thai, when the goods were delivered at the wharf, or put on board the vessel, they were then in a sound state, and that on their arrival at Baltimore they were found to be broken, then the defendants are responsible, unless they show how it occurred. In this case, there was nothing to show that the injury might have occurred from perils of the sea, and it is diiBcult to account for how it could have happened, unless there was some negligence on the part of the defendants. The law pre- sumes that if the goods were safe when put on board, that the injury to them arose from negligence on the part of the defendants, unless they show the contrary. And if the injury arose from negligence on the part of the captsun or owners, then they are responsible for it, otherwise they are not." Journ. of Comm. April 27, 1848. » Stuart V. Crawley, 2 Stark. 323. CHAP. VI.] RESPONSIBILITY OP COMMON CARRIERS. 191 the river, the owners of the boat are responsible ; for the horse must have been negligently fastened, or the loss would not have occurred ; 3.ndprimd facie, this negligence is attributable to the owners of the boat or their servants.^ So where an animal is sent over a railroad, the company are liable for any injury it may sus- tain either by the improper construction of the carriage, or the want 'of reasonable equipments, or the improper position of the carriage in the train.^ The rule with regard to proper equipments to insure, the safety of an animal holds also as to ferry-boats. A special verdict was found in a case, that the defendant was the owner of a public ferry ; that the chain with which the flat was fastened to the bank was unusually large and apparently strong ; that in attempting to drive the wagon of the plaintiff, heavily laden, into the flat, the chain broke, in consequence of which the horse of the plaintiff was so much injured as to be of no value ; that several wagons, equally heavy laden, had before passed there ; that the chain had been for some time used thereat ; that the blacksmith, who mended it, was of opinion that it was equal to any chain he was capable of making ; that there was no negligence on the part of the defendant's ferryman. The court below pronounced judgment in favor of the defendant ; but on a motion to reverse the judgment in favor of the plaintiff, it was entered for the plain- tiff, the court, in giving their opinion, saying : " It must be known to every ferryman, that the strain upon a chain, when the fore wheels of a loaded wagon first strike against a flat to enter it, is very great, and that, therefore, he ought to be provided with a chain of great strength to support such a blow, but particularly when the descent from the bank to the flat is steep and consider- able." The court further said, that " in cases of this kind it would be difficult to draw a line between what was due diligence or what was not ; but it is not difiicult to prove that though an unlooked- for accident of this sort might happen, without the ferryman's being provided against it, he ought, however, to be accountable for the injury sustained." ^ Qa) ' Porterfleld u. Humphreys, 8 Humph. 497. ' So ruled by Lord C. J. Denman in Walker v. London Railway Co., Kingston Spring Assizes, 1843, cited in Waif. Sum. of Law of Railways, 305. Palmer v. Grand Junction Railroad Co., 4 M. & W. 749. " Rutherford v. M'Gowen, 1 Nott & McC. 17. See- ante, 78. (a) Wilsons v. Hamilton, 4 Ohio, State, 722. 192 LAW OF CARRIERS. [CHAP. VI. § 214 a. If the animal is injured or destroyed by the pecuhar risks to which it is exposed, the carrier is clearly excusable. Thus, if horses or other animals are transported by wjiter, and in consequence of a storm they break down the partitions between them, and by kicking each other some of them are killed, the car- rier will be excused ; and it will be deemed a loss by perils of the sea.^ And, in case of an animal sent by railway, it has been ruled that the company are not liable for an accident arising from the animal's own viciousness or want of temper.^ (a) Such a case would seem to be analogous to the case of the loss of merchandise owing to some inherent defect which caused the destruction of it while in transit.^ § 215. Sometimes goods are put on board a vessel to be stowed on deck, and they thus become liable to be thrown overboard in cases of extreme danger to the vessel and crew, and in such event the loss falls on the owner of the goods, unless so far as the owner of the goods may be entitled to contribution, as in case of a gen- eral average.* Yet, if the goods are, without necessity, thrown ' Gabay v. Lloyd, 3 B. & C. 793 ; Lawrence v. Aberdein, 5 B. & Aid. 107 ; and see ante, § 24. ' Walker v. London Railway Co., uh. sup. : and see also post, note to § 277. ' See ante, § 210, et seq. * Story on Bailm. § 530 a, 4th edit. ; Smith v. Wright, 1 Caines, 43 ; Lenox v. United Ins. Co., 3 Johns. Cas. 178. See post, § 328. (a) In Clarke v. Rochester R., 4 Kern. 570, it was held that a carrier of ani- mals is responsible for any injury which can be prevented by foresight and care, although arising from the conduct of the animals, but that he is not an insurer against injuries arising from the nature and propensities of the animals, and which diligent care cannot prevent. It was also held that the fact that the owner of a horse was allowed passage on the train in which his horse was carried did not prove conclusively, if at all, that he was to attend to the horse's safety during the journey. See also Smith v. New Haven R., 12 AUen, 531 ; Hall v. Benfro, 3 Met. Ky. 51; Conger v. Hudson -River R., 6 Duer, 375; Harris v. Northern Indiana R., 20 N. Y. 232 ; Ohio R. v. Dunbar, 20 HI. 623. In Powell v. Penn- sylvania R., 32 Penn. State, 414, it was held that if a railroad company permits straw or other combustible materials to be used as bedding for live stock in their cars, and the live stock are injured by the straw catching fire, the company is liable, although the straw was put in with the consent of the owner of the stock. Where an entire car is chartered to a person for his cattle, and he has charge of the loading of the oar, the company is not liable for a damage sustained by im- proper loading. If the car is defective the company is liable on the contract of hire, but not as a carrier. East Tennessee R. v. Whittle, 27 Ga. 535. See Welsh V. Pittsburg R., 10 Ohio, State, 65. CHAP. VI.] RESPONSIBILITY OF COMMON CARRIERS. 193 overboard, the carrier will be chargeable with the loss.^ If a fer- ryman should, in the emergency of a storm, throw overboard a 602; of jewek, and it was done from absolute necessity to save life, he would not be responsible ; but if done rashly, it would be otherwise. 2 § 216. In an action against the defendants, as owners of a cer- tain schooner, for not delivering flour shipped at Georgetown for Portsmouth, it appeared that twenty barrels of it were shipped to go under deck at a certain price per barrel, and one hundred and forty barrels were shipped to go on deck, at half that price for freight. It appeared, that, on coming on Nantucket shoalin bad weather and with a heavy sea, the vessel struck, and was in such danger as to render it necessary, for the preservation of the lives, of the crew, and for- the safety of the vessel and cargo, to throw some part of the latter overboard ; and accordingly the whole of the deck load and twenty barrels from the hold, being the plaintiff's flour, were thrown over. The value of the twenty barrels under deck was afterwards settled for in the general aver- age, leaving only the deck load in controversy. The defendants insisted that they were absolved from liability for the goods shipped on deck, both by the general principles of the law merchant and by the usage and custom of America. The defendants were lield not liable to contribution, as it was in evidence that the jettison, ' Ibid. ' Mouse's case, 12 Co. K. 63 ; Bancroft's case, cited in Kenrick v. Eggleston, Aleyn, 93 ; and see Jones on Bailm. 107, 108 ; Bird v. Asteock, 2 Bulst. 280 ; 2 EoU. Abr. 567. " The case of Bancroft, as cited by Lord Chief Justice Eolle, ■would seem to imply a responsibility of the carrier even in cases of jettison. It is stated thus : A box of jewels had been delivered to a ferryman, who knew not what it:c(5utained, and a sudden storm arising in the passage, he threw the box into the sea. Yet it was resolved that he should answer for it. Sir William Jones suspects that there must have been some proof of culpable negligence in the case, and that probably the casket was both small and light enough to have been kept longer on board than other goods. Even then the case would be suf^ciently hard ; as the ferryman did not know the contents, and might have acted for the best. But if the doctrine of the case be, that jettison will not, in a clear case of neces- sity, discharge the carrier, it is not law ; for it was expressly decided, in Lord Coke's time, in the case of a bargeman ("cited by Lord Coke in Bird v. Astcoek, 2 Bulst. 280), that where goods were thrown overboard in a great storm to save the lives of the passengers, by lightening the barge, the bargeman was exonerated ; for the storm was the act of God, and the occasion of throwing them overboard." Story on Bailm. § 531. 13 194 LAW OF CAEKIERS. [CHAP. VI. by which the plaintiff's loss was occasioned, was justified by the highest necessity ; and as it was not pretended that the property could have been preseryed by any exertion on the part of the master or mariners.^ § 217. The law on the subject of jettison is thus laid down by Tindal, C. J., in the case of Gould v. Oliver:^ " When the load- ing on the deck has taken place with the consent of the merchant, it is obvious that no remedy against the ship-owner or master for a wrongful loading of the goods on deck can exist. The foreign authorities are indeed express on that point ; ^ and the general rule of the English law, that no one can maintain an action for a wrong, where he has consented or contributed to the act which occasioned his loss, leads to the same conclusion." * § 218. If the goods are, without the consent of the merchant, or contrary to established usage, stowed on deck, and are, fropa their being so placed, thrown overboard in tempestuous weather, the carrier will be answerable for the loss by the jettison.^ Where the master of a vessel received hogsheads of gin on board, to be. transported at customary freight, which were stowed on deck, and which were ejected during the voyage by reason of tempestu-. ous weather ; it was held, that the owners were liable for the loss, unless such stowage was authorized by consent of the merchant, or by custom. It was not pretended that the jettison was without justifiable cause, but the complaint was careless stowage, in putting the gin on deck, when it ought to have been put in the hold.^ (a) ' Dodge V. Bartol, 5 Greenl. 286. ' Gould V. Oliver, 4 Bing. 142. ' Valin, tit. dec Capitaine, art. 12 ; Consol del Mar, c. 183. * It has been held in the Supreme Court of New Brunswick, that a master of a ship who has signed the usual bill of lading is not liable for a loss by the jettison of goods which have, been laden on deck with the knowledge and consent of the shipperand consignee. Johnston v. Crane, 1 Kerr. 356. ' 3 Kent, Com. 206; The Rebecca, Ware, 188; Smith u. Wright, uJ. sup.; Lenox v. United Ins. Co., 3 Johns. Cas. 178; Waring v. Morse, 7 Ala. 343. ° Barber v. Brace, 3 Conn. 9. (a) Lawrence v. Minturn, 17 How. 100. The burden is on the ship-owner to prove that the shipper agi-eed that his property might be carried on deck. The Peytona, 2 Curtis, C. C. 21. Where a bill of lading expressly stipulates that cer- tain goods named therein may be carried on deck, parol evidence is inadmissible to show that the shipper agreed that another portion should be so carried. Say- ward J). Stevens, 3 Gray, 97. In Texas it has been held that if cotton is shipped in an open boat the shipper knowing that it is not to be covered, the carrier is- not liable for damage to it by rain. Chevaillier v. Fatten, 10 Texas, 344. CHAP. VII.] LIMITATION BY EXPRESS CONTRACT. 195 ■ § 219. In respect to the doctrine of general average, which arises in cases oi jettison, a.ndi other accidents in cases of transpor- tation of goods by sea, the law allows a compensation to the own- ers of the goods, where the goods are thrown overboard for the common benefit, and they may demand a pro rata contribution from all other persons deriving a benefit from the sacrifice.^ This subject, however, more appropriately belongs to a treatise on the law of slfipping.^ Carriers on land, it may be added, are entitled to the same equity, and may be entitled, if not to a common con- tribution, in- the nature of a general average, at least, to compen- sation for expenses incurred by them about the preservation of the goods from extraordinary perils, which do not properly belong to them as carriers.^ CHAPTEE VII. OF THE RESPONSIBILITY OE COMMON CARRIERS AS RESTRICTED, LIMITED, AND QUALIFIED BY SPECIAL CONTRACT AND BY STATUTE. § 220. In addition to the two instances of exemption from the responsibility of common carriers (losses by the act of God and the public enemy), which are accorded by the Common Law, there is tlie instance of exemption by their own act, viz. that of a special acceptance. The principles of the Common Law are to be understood with the limitation that there is no special contract between the parties, which varies the general obligation of car- riers, for if there clearly appear such a contract, it governs the case.* The right of admitting qualified acceptances of common carriers seems to have been asserted in early times. Thus, a special acceptance is recommended by Lord Coke in a note to Southcote's case,^ in which he says that if goods be delivered to one to be delivered over, it is good policy to provide for himself in special manner, for doubt of being charged by his general ac- ceptance. Sir Matthew Hale, in giving judgment in Mors v. ' Smith Mer. Law, 260 ; Story on Bailm. § 583 ; Gillett v. Ellis, 11 111. 579. ' See Abbott on Shipp. P. 3, c. 8 ; Stevens on Average. ' Story on Bailm; §§ 389, 584, and ante, §§ 42, 43. ' See ante, § 59. ' Southcote's case, 4 Co. 84 ; and see the case cited ante, note to § 20. 196 LAW OF CABKIERS. [CHAP. VH. Slue,^ says that, " if the master would, he might have made a caution for himself, which he omitting, and taking in goods gen- erally, he shall answer for what happens." Although in these cases the point was not expressly adjudged, that a common car- rier may restrict his liability by express contract, yet such was assumed to be good law ; and it was only so assumed by Mr. J, Yates, in Gibbon v. Paynton,^ and by Lord Ellenborough, in Lee- son V. Holt.^ In Nicholson v. Willan,* the last-named learned judge found no direct adjudication, that a common carrier may limit his Common-Law responsibility by a special contract ; but he relied on the fact that such an exemption had never been, by express decision, denied. But there was a direct adjudication, in the year 1800, in an action of assumpsit, at nisi prius, before Lord Kenyon, against the defendant, as a common carrier, for not safely carrying a chest of tea from London to Leeds. The carrier demanded a certain sum for booking, and refused to take charge of the tea unless such sum was paid ; and it was held that he was not liable to an action if the tea was left without being paid for and was lost. Lord Kenyon said : "When no rate is fixed by law, the carrier is entitled to say on what terms he will carry ; he is not obliged to take everything which is brought to his ware- house, unless the terms on which he chooses to undertake the risk are complied with by the person who employs him. The old mode of declaring used to be on the custom of the realm ; but this is in assumpsit, it is founded in contract, and the contract must, therefore, govern the parties."^ The doctrine is consid- ered to be now fully recognized and settled, beyond any reason- able doubt, in England.^ ' Mors V. Slue, 1 Vent. 238 (24 and 25 Car. II.) ; and see Kenrig v. Eggleston, Aleyn, 93 ; and Austin v. Manchester R., 10 C. B. 454, 11 Eng. L. & Eq. 506. ' Gibbon v. Paynton, 4 Burr. 2301. ' Leeson r. Holt, 1 Stark. 186. Meaning of the exception as to robbers, Ij'C. The defendants received from the plaintiffs, at Panama, certain goods to be deliv- ered in London, " the act of God, the queen's enemies, pirates, robbers, fire, &c., excepted." The goods were carried toiSouthampton, and were thereplaced in a railway truck, from whence they were secretly stolen in the course of their tran- sit to London. Held, that this was not within the exception a loss by "rob- bers," since the word " robbers " meant, not thieves, but robbers by violence. De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734, 14 Eng. L. & Eq. 327. * Nicholson v. Willan, 5 East, 513. ' Anonymous v. Jackson, Peake's Add. Cas. 185. • Story on Bailm. § 549 ; Clay v. Willan, 1 H. Bl. 298 ; Harris v. Packwood, S CHAP. Vn.] LIMITATION BY EXPRESS CONTRACT. 197 § 221. The subject was fully considered in Gould v. Hill, in New York,i and the conclusion arrived at by Cowen, J., wlio gave the opinion of the court, was, that a common carrier could not restrict his obligation, even by a special contract.^ But Bronson, J., in giving the opinion of the court in Hollister v. Nowlen, was not disposed to deny that a common carrier may, by express con- tract, limit his responsibility. Attention was given to the subject in the laCe case of the New Jersey Steam Navigation Company, in the Supreme Court of the United States,^ and the court ex- pressed themselves unable to perceive any well-founded objection to a restriction, by a special contract, or' any stronger reasons for forbidding it than exist in the case of any other insurer of goods, to which his obligation is analogous ; and which depends alto- gether upon the contract between the parties.* (a) Taunt. 264 ; Smith v. Home, 8 lb. 146 ; Riley i'. Home, 5 Bing. 217; Ranger v. Great Western R. Co., 1 Eng. Rail. & Canal Cases, 1 ; and see English cases cited in Hollister v. Nowlen, 19 Wend. 234; and in Cole v. Goodwin, 19 Wend. 251. ' Gould V. Hill, 2 Hill, 623. ' Seethe case more fully stated, jaosi, 239 ; and see the opinion of Cowen, J., in Cole v. Goodwin, 19 Wend. 251. ' New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. See also the opinion of Huston, J., in Bingham v- Rogers, 6 Watts & S. 499. ' In New York the question was considered by Bronson, J., as " perhaps de- batable." Wells V. Steam Navigation Co., 2 Comst. 209. See post, § 239. (a) Davidson v. Graham, 2 Ohio, State, 131 ; Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 115 ; Michigan Central R. v. Hale, 6 Mich. 243 ; Boswell v. Hud- son River R., 5 Bosw. 699. Parol evidence of such a contract is admissible. American Transp. Co. v. Moore, 5 Mich. 368 ; Roberts v. Riley, 15 La! Ann. 103 ; and so is usage. Cooper v. Berry, 21 Ga. 526. If a common carrier undertakes to transport an article in his line of business, the legal presumption is, that he does it subject to his Common-Law liability. ,And this presumption remains until it is overcome by positive proof of a special agreement. New Jersey R. v. Penn- sylvania R., 3 Dutch. 100. If a person signs a special contract in ignorance of its terms, through the assurance of an agent of the carrier that it is a mere matter of form, he is not bound by the terms of thp contract. Simons v. Great Western R., 2 C. B. N. s. 620. Where goods were shipped under a bill of lading which ex- cepted loss by fire and dangers of the river, a clause in the bill of lading to the effect that the owners of the barge agreed to " insure the freight shipped on the barge against leaking and sinking," was construed to be an insurance of the sea- worthiness of the barge. Hill v. Sturgeon, 28 Misso. 323. Generally an insur- ance company by paying for a loss on goods is subrogated to the rights of the owner against the carrier ; but the carrier may contract with the owner of goods that, in case of loss, he shall be subrogated to the rights of the owner against the insurer ; and in such case the insurer's claim against the carrier does not exist. Mercantile Ins. Co. v. Calebs, 20 N. Y. 173. 198 LAW OF CARBIEES. [CHAP. VIL § 222. In respect to carriers by water and by sea, whenever the master and owners of a ship engage with separate merchants to convey the goods to the place of her destination, the contract is said to be for a conveyance in a general ship ; ^ and it is usual to advertise such ships in the newspapers, or in cards and hand- bills ; and care should be taken in doing this to insert nothing in the advertisements which it is not the ship-owner's intention to make strictly good ; since it may not be clear that some of the terms of such advertisement may not be construed as incorpo- rated into the contract.^ (a) § 223. But the instrument to which reference is generally had for the terms of such a contract is the Bill of Lading, the sub- stance of which is a formal acknowledgment of a receipt of goods, and an engagement to deliver them to the consignee or his as- signs ; ^ (&) in the nature of a way-bill, when goods are carried by » See ante, § 89. » Abbott on Shipp. P. 2, c. 2. ' Per Rogers, J., Cope v. Cordova, 1 Rawle, 203 ; Ferguson v. Cappean, 6 Har- ris & J. 394; Steamboat Owen v. Johnson, 2 Ohio, State, 142. (a) In Phillips v. Edwards, 3 H. & N. 813, the carrier had sent a notice to va- rious merchants, and among others to the plaintiff, stating the terms and condi- tions on which he would carry goods. This notice was received by the plaintiff. Afterwards he shipped goods by the carrier and received, three days after the shipment, a freight note containing a description of the goods, and a charge for freight to the place of destination. This was made out on a printed form such as was usually sent to persons on the arrival of their goods. It contained terms and conditions less favorable to the carrier than the notice. Held, that the notice, and not the freight note, was the contract. (V) An account for freight, usually called a freight bill is not a bill of lading. Coosa Kiver Steamboat Co. v. Barclay, 30 Ala. 120. See Dows v. Rush, 28 Barb. 157; Dows v. Greene, 24 N. York, 638; The Sch. Emma Johnson', 1 Sprague, 527. Stipulations in bills of lading should be made in terms sufficiently intelligible to indicate an agreement that the law merchant is not to prevail. In Brittain v. Barnaby, 21 How. 527, a stamp in red ink was put on the back of the bill of lading by the ship-owner, which provided that freight was to be paid be- fore delivery, if required. The court, assuming that the stamp was on before the bill of lading was delivered to the shipper, considered that there was no evidence of any assent to its provisions by the shipper, and held that it was not admissible to control the provisions of the bill of lading. See also Western Transp. Co. v. Newhall, 24 111. 466 ; Lewis v. Great Western R., 5 H. & N. 867. The bill of lading is said to be but evidence of the contract, and it may be shown that the goods were carried under a different contract made by the shipper and a person authorized by the owners of a vessel. Trask v. Jones, 5 Bosw. 62. The hill of lading usually acknowledges the receipt of the goods in good order. This is CHAP. VII.] LIMITATION BY EXPRESS CONTRACT. 199 land. Several copies of such -written contract are commonly made out, of which the merchant sends one or two to the person for whom the goods are destined, and retains one for himself.^ The modern English form of the bill of lading contains these words: "The act of God, and the king's enemies, fire, and all and every other dangers of the seas, rivers, and navigations of whatever nature and kind soever, excepted." The .two first of these, we have seen, are exceptions even at Common Law ; and the third was made so, in England, by Stat. 26 Geo. III. c. 86, § 2, which enacts, " that no owner or owners of any ship or ves- sel shall be subject or liable to answer for, or make good to, any one or more person or persons any loss or damage which may happen to any goods or merchandise whatsoever which shall be shipped, taken in, or put on board, any such ship or vessel, by reason or means of any fire happening to or on board of said ship or vessel." Lord Tenterden remarks, that the master is not men- tioned therein, and that it may therefore be doubtful whether his responsibility is in this case removed by the statute, but that the ■ insertion of the word " fire " in the bill of lading certainly re- moves it.^ (o) ' Smith, Mer. Law, 176. ' Abbott on Shipp. P. 3, c. 4. " The same statute enacts (§ 3) that no master, owner, or owners of any ship or vessel shall be liable to answer for, or make good any loss or damage which may happen to any gold, silver, diamonds, watches, jewels, or precious stones, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or means of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof shall, at the time of shipping the same, insert in his bill of lading, or otherwise declare in writing, to the master, owner, or owners of such ship or vessel, the nature, qual- ity, and value of such gold, silver, diamonds, watches, jewels, or precious stones. By Stat. 6 Geo. IV. (Pilotage Act) c. 125, § 53, owners and masters of ships are exempted from liability for any damage arising from the want of a licensed or duly qualified pilot, unless it be proved that such want arose from- any refusal to take one on board, or from wilful neglect, in not heaving to, or using all practlear merAy prima facie evidence that outwardly the goods are in good order. Nelson ». Woodruff, 1 Black, 156 ; Clark v. Barnwell, 12 How. 272 ; Hastings v. Pepper, 11 Pick. 41. But more force seems to have been given to this expression in Tar- box V. Eastern Steamboat Co., 50 Maine, 339. If a ship receives goods and car- ries them to the port of destination and libels them for freight, the owners of the vessel are estopped to deny the liability of the vessel to deliver the goods in like good order as received, with the usual exceptions, because the master refused to sign bills of lading. The "Water Witch, 1 Black, 494. (a) For the American statutes, see ante, § 90, note. 200 LAW OF CARBIEKS. [CHAP. YD. § 223 a. The authority of the master of a ship is^ large, and ex- tends to all acts that are usual and necessary for the use and management of the vessel. Among other powers he may sign a bill of lading, and acknowledge the nature, quality, and condition of the goods. Constant usage shows this ; and if a more limited authority is given, the party not informed of it is not affected by such limitation.^ But the master of a ship has no general au- thority to sign a bill of lading for goods which are not put on ble means consistent with the ship's safety, for the purpose of taking on board any- pilot who may offer; and § 55 exempts them from liability for damage arising from the neglect, default, incompetency, or incapacity of any licensed pilot in charge of the vessel, so long as such pilot shall be duly qualified to hare charge of the vessel, or no duly qualified pilot shall have offered to take charge thereof. It will be seen that the Common-Law liability of ship-owners is discharged to a considerable extent by these enactments ; where it remains, it is restricted to a certain ascertainable amount by stat. 7 Geo. II. c. 15, which exempts the owners from responsibility for loss by reason of any embezzlement, secreting, or making away with, by the master or mariners ; or for any act, matter, or thing, damage, or forfeiture, done, occasioned, and incurred by the same persons, without the privity of the owners, further than the value of the ship, with her appurtenances, and the freight due, or to grow due for the voyag6 wherein such loss happened (§ 1. See Sutton v. Mitchell, 1 T. K. 18). Stat. 26 Geo. IH. c. 86, § 1, extends the provisions of this act to all cases of robbery, though the master or mariners be not concerned therein. By stat. 53 Geo. III. c. 159, owners are not liable to answer for, or make good any loss or damage arising by reason of any act, neg- lect, matter, or thing done, committed, and occasioned without the fault and priv- ity of such owner or owners, which may happen to any goods, wares, merchan- dises, or other things laden or put on board the ship, further than the value of the ship and freight due, or to grow due, during the voyage which may be in prose- cution, or contracted for at the time of the happening of the loss. This statute further defines what shall be considered freight, within its meaning (§ 2), and that of the two prior acts ; and orders that distinct losses, happening during the same voyage, or same interval between two voyages, shall be compensated in the same way, and to the same extent, as if no other loss had happened during the same voyage or interval ; and, as well as the two former ones, provides a propo> tionable compensation in cases where the value Of the ship and freight is less than the total amount of losses, and a mode of distribution and relief in equity. But this act does not extend to vessels used solely in rivers and inland navigations, nor to any ship not duly registered according to law ; nor do any of the acts extend to lighters and gabbets (Hunter v. M'Gown, 1 Bligh. 573). The benefit of the last three mentioned acts does not extend to masters; and the last contains a provision against relieving the master, who happens to be a part-owner, from re- sponsibility ; yet if he be sued along with the part-owners, he will be protected as well as they ; for it is a rule that the damages given against co-defendants must be one and the same sum. (Wilson v. Dickson, 2 B. & A. 2.") ' Smith Mer. Law, 559. CHAP. VII.] LIMITATION BY EXI'EESS CONTEACT. 201 board the vessel ; and consequently the owners of the ship are not responsible to parties taking a bill of lading which has been signed by. the master, without receiving the goods on board.^(a) § 224. In this country, although the loss of the property deliv- ered for transportation, by an accidental fire, furnishes no suffi- cient excuse, yet it may be rendered otherwise by the terms of the bill of lading.^ (6) In Patton v. Magrath, in South Carolina,^ Rich- ardson, J., says :. " Need I remind the owners of steamboats that they have but to give public notice that they will not be liable in certain classes of cases ; and, to deceive no one, give no other bill of lading but with the express written condition ' not to be liable for accidents by fire,' and they make the desired exception." In Swindler v. Hilliard, in the Court of Appeals of South Carolina, in 1846,* it was held that a common carrier might limit his liabil- ity by a special contract, that is, by a bill of lading containing the exception, " dangers of fire and navigation only excepted" ; and that the term "fire" meant any fire, and was no't restricted to fire originating from the furnace of the boat. It may, sometimes, however, be somewhat questionable what is a loss by fire. Where the register of a sugar-house was kept shut by mistake, so that the sugar was overheated and spoilted, this was held, in a suit on a policy of insurance, not to be a loss by fire, but by misman- agement? § 225. In the important case of the New Jersey Steam Naviga- tion Company v. Merchants' Bank, in the Supreme Court of the United States,^ it appeared that one W. P. Harnden was engaged in the business of carrying for hire packages of goods, specie, and bundles of all kinds, for any persons who would employ him, to and from the cities of New York and Boston ; and that his mode ' Grant v. Norway, 10 C. B. 665, 2 Eng L. & Eq. 337. ^ Parker v. Flagg, 26 Maine, 181. ' Patton V. Magrath, Dudley, S. C. 159. * Swindler v. Hilliard, 2 Rich. 286. ' Austin V. Drewe, 6 Taunt. 436, 4 Camp. 380. ' New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. (a) Sch. Freeman v. Buckingham, 18 How. 182 ; The Bark Edwin, 1 Sprague,, 477 ; Hubbersty v. Ward, 8 Exeh. 330, 18 Eng. L. & Eq. 551 ; Coleman v. Rich- es, 16 C. B. 104, 29 Eng. L. & Eq. 323. Where, by the custom of trade, bills of lading are signed before the goods are delivered on board, the bills are consid- ered as conditional only. Fearn v. Richardson, 12 La. Ann. 752. (6) York Company v. Central Railroad, 3 Wallace, 107. 202 LAW OF CAEEIEKS. [CHAP. VH. of conveying them was the established public conveyances between those cities. That in the exercise of his employment he had en- tered into an agreement with the above-mentioned company, by which, in consideration of a certain sum per month, he was to have the privilege of transporting in their steamers a wooden crate of given dimensions, subject to these conditions : 1. " The crate, with its contents, to be at all times exclusively at the risk of the said Harnden, and the company not, in any event, to be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, &c. to be conveyed or transported by him in said boats, or otherwise in the boats of said company. 2. That he should annex to his advertisements published in the public prints the following notice, which was also to be annexed to his receipt of goods or bills of lading. ' Take Notice : William P. Harnden is alone responsible for the loss or injury of any articles committed to his care ; nor is any risk assumed, nor can any be attached to the proprietors of the steamboats in which his crate may be, and is transported, in respect to it, or its contents, at any time.' " The question being made, whether it is competent for the common carrier to restrict his obligation by such an agree- ment, the court declared it as their opinion, that, as the extraor- dinary duties annexed to his employment concern only, in the particular instance, the parties to the transaction, involving sim- ply rights of property, the safe custody and delivery of the goods, they were unable to perceive any well-founded objection to the restriction. The extent of the restriction of the Common-Law lia- bility in such cases of express contract, the court held, is, that the carrier is not to be regarded in the exercise of his public employ- ment, but as a private person, who incurs no responsibility beyond that of a private carrier, or of an ordinary bailee for hire ; or, in other words, he was answerable only for misconduct or the want of ordinary diligence.^ (o) § 226. There has prevailed for a long period a practice in re- ' As has been laid down, ante. Chap. III. In the case of Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, there was no hUl of lading. See the case stated, ante, § 158. (a) Goldey v. Pennsylvania R,, 30 Penn. State, 242 ; Welles v. New York Cen- tral E., 26 Barb. 641 ; Peninsular Steam Nav. Co. v. Shand, 3 Moore, P. C. N. 8. 272. Sec post, § 528, note, as to what contract a carrier may make when he carries a passenger gratuitously. CHAP. VII.] LIMITATION BY EXPRESS CONTRACT. 203 gpect to carriers by water, of accompanying the shipment with a hill of lading which specifies the " perils " or the " dangers " of the sea or of the river, as excepted. The precise meaning of these words, and whether it is exactly commensurate with that of the words " act of God " (from liability from losses by which the car- rier is by law always exempted), has been already considered.^ In Williams v. Grant, in Connecticut,^ Mr. J. Gould held, that common carriers were not liable for losses by perils of the sea, whether the bill of lading contained any exception or not ; and the same point was affirmed in the same State by the whole court in a subsequent case.^ But nevertheless, as has been shown, the words in question do extend to some events not attributable to natural causes.* In any event, however, as has also be«n shown, they do not include losses that might have been avoided by the exercise of reasonable skill and diligence, and by proper conduct.^ And so likewise may it be said of the exception in bills of Jading of " dan- gers of the lake" notwithstanding which the owners are liable for a loss hj negligence ; ^ and so also are they for a loss in conse- quence of deviation.'' Where a bill of lading was signed by the master of a vessel, acknowledging the receipt of certain goods, and stating that they were to be transported from Buffalo to Cleve- land, " the dangers of the lakes and rivers only excepted," it was held, that the legal effect of this agreement was to convey the goods from Buffalo to Cleveland by the most direct route.^ § 226 a. No exception (of a private nature at least) which is not contained in the contract itself can be engrafted upon it by implication as an excuse for its non-performance.^ The declara- tion in an action on a contract of affreightment stated that the plaintiff had shipped on board the defendant's ship, then in the ■ bay of Gibraltar, and bound for London, certain goods to be safe- ly conveyed to London, the act of God, the queen's enemies, fire, ' Ante, § 166. ' Williams v. Grant. 1 Conn. 487. " Crosby v. Fitch, 12 Conn. 410. See also Neal v. Sanderson, 2 Smedes & M. 572. * ^nte, §§ 166-169. " Ante, § 167. ' Fairchild v. Slocum, 19 Wend. 329. ' See a»i(e, §§ 175-180. ' May I'. Baboock, 4 Ohio, 334. ' Per Lord Ellenborough, in Atkinson v. Ritchie, 10 East, 533. 204 LAW OF CABRIEES. [CHAP. YH. all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature or kind soever, save risk of boats, excepted ; the breach stated was, that the defendant failed so to convey and deliver the goods agreeably to his undertaking ; and the plea was, that the ship, in the course of her voyage, called at Cadiz (agreeably to the terms of the contract), and was then with- in the jurisdiction of the officers of customs there, and of a certain court (described in the plea) ; that while the ship was there, the goods were, according to the law of Spain, lawfully taken out of the ship by the said officers against the will and without the de- fault of the defendant, on a charge of suspicion of their being con- traband according to the law of Spain,' and were confiscated by a decree of the said court. It was held, on demurrer, that the plea alleged no excuse within the express exceptions in the contract; that the decree of confiscation was in itself no answer ; and that it did not appear by the plea to have been incurred by any fault in the plaintiff. The defendant's contract was in effect a contract of insurance against all but certain specified risks, and the seizure in question was not one of them.^ (a) § 227. The privilege of transshipment in a bill of lading reserved to the carrier does not discharge him from any responsibility which is incident to his contract, until the goods be delivered at their destined port. A stipulation, for instance, in a bill of lading, that the shipper, in case of low water in the river, may reship in other craft, does not vary his obligation to deliver safely. Such stipulation is for the benefit of the carrier, in securing to him the advantage of as great a portion of the freight as he could earn, and to throw upon the owner any increase of expense ; and the . relation and responsibility of a common carrier continues from the shipment of the goods until their arrival at the destined point of delivery .2 (6) Where the undertaking was to deliver a cargo, . • Spence v. Chodwick, 10 Q. B. 517. ' Whitesides v. Russell, 8 Watts & S. 44; M'Gregor v. Kilgore, 6 Ohio, 143; Dunseth v. Wade, 2 Scam. 288. (a) See Howland v. Greenway, 22 How. 491. When a common carrier makes a specific contract to carry a particular lot of goods, and there are no circum- stances to indicate that he received them for any different compensation than he would as common carrier, it seems that his liability is not measured merely by the terms of the contract, but also by the law applicable to common carriers. See Morrison v. Davis, 20 Penn. State, 171. (6) See also Broadwell v. Butler, 6 McLean, 296; Sturgess v. Steamboat CHAP. VII.] LIMITATION BY EXPRESS CONTRACT. 205 with the privilege of reshipment at a particular place on the way, and the undertaker stopped short of the point designated, and the cargo was lost in a storm, it was held that he was responsible. As the storm was a peril of the river, and an act of God, the carrier would have been excused if he had encountered it in the ordinary course of the voyage, and of his duty ; but as it was encountered when out of the course of his voyage and of his duty, and might have beep avoided but for a disregard of his duty and of his con- tract, the carrier made himself liable.^ By the insertion, there- fore, in the contract, of these words, " the privilege of reshipping," although the carrier is allowed to transship or reship in another vessel, his contract is not performed until the delivery of the goods at the place of their destination.^ § 228. A parol agreement between the master of a vessel and a shipper of goods, before and at the time of executing a bill of lad- ing, permitting the master to deviate from the usual route, is in- admissible evidence in an action by the shipper against the owners of the vessel to recover for the loss of the goods. But parol evi- dence of the custom of navigating Lake Brie is admissible, though not for the purpose of varying a written contract, but for the pur- pose of carrying it into execution, as understood by the parties.^ § 229. Evidence is not admissible to vary the conjmon form of a bill of lading, by which the goods were to be delivered in good order and condition, " the dangers of. the seas only excepted," by establishing a custom, that the owners of packet vessels, between New York and Boston, should be liable only for damage to goods occasioned by their own neglect.* Mr. J. Story, in giving his opinion in this case, said he could not but deem every relaxation of the Common Law, in relation to the duties and responsibilities ' Cassillay v. Toung, 4 B. Mon. 265. ' Little V. Setnple, 8 Misso. 99 ; and see ante, §§ 95-97. ' May V. Babcock, 4 Ohio, 334. ' The Schooner Reeside, 2 Sumn. 567. Columbus, 23 Misso. 250 ; Carr v. Steamboat Michigan, 27 Misso. 196 ; Dalzell 1). Steamer Saxon, 10 La. Ann. 280; Hatchett v. Steamer Compromise, 12 La. Ann. 783. Where goods are shipped with the privilege of transshipment, and are damaged on the voyage and are transshipped under a bill of lading which contains a provision that the second carrier shall not be responsible for the damage done by the first, the second carrier is not liable for such damage, although the owner of the goods has not received the second bill of lading. Wilson v. Harry, 32 Penn. State, 270. 206 LAW OF CAERIKES. [CHAP. Vn. of the owners of carrier ships, to be founded in bad policy, and detrimental to the general interests of commerce. In respect to the established usage set up in the case, the learned judge said : " I own myself no friend to the almost indiscriminate habit of late years of setting up particular usages or customs in almost all kinds of business or trade to control, vary, or annul the general liabili- ties of parties under the Common Law, as well as under the Com- mercial Law. It has long appeared to me, that there is no small danger in admitting such loose and inconclusive usages and cus- toms, often unknown to particular parties, and always liable to great misunderstandings and misinterpretations and abuses, to outweigh the well-known and well-settled principles of law. And I rejoice to find that, of late years, the courts of law, both in Eng- land and in America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of tliem. The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions and acts of a doubtful or eqiiivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words in a given instrument, when tlie word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehen'd> that it can never be proper to resort to any usage or custom to control or vary tlie positive stipulations in a written contract, and, a fortiori, not in order to contradict them. An express contract of the parties is always admissible to supersede, or vary, or con- trol a usage or custom ; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled, or varied, or contradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts ; but it would be to allow mere presumptions and implications, properly arising in the ab- sence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties. Now, what is the object of the present asserted usage or custom ? It is to show, that, notwithstanding there is a writ- ten contract (the bill of lading) by which the owners have agreed OHAP. VII.] LIMITATION BY EXPRESS CONTRACT. 207 to deliver the goods shipped in good order and condition, at Bos- ton, the danger of the seas only excepted ; yet the owners are not to be held bound to deliver them in good order and condition, al-, though the danger of the seas has not caused or occasioned their being in bad condition, but causes wholly foreign to such a peril. In short, the object is to substitute for the express terms of the bill of lading an implied agreement on the part of the owners, that they shall not be bound to deliver the goods in good order apd condition ; but that they shall be liable only for damage done to the goods occasioned by their own neglect. It appears to me that this is to supersede the positive agreement of the parties, and not to construe it." (a) § 230. In a case in the Court of Appeals of South Carolina, in 1817, in which the action was to recover damages for the loss of a large number of bales of cotton that were consumed by fire on the defendants' steamboat, one of the legal propositions of the appellant was, that the ship-owners were exempt from liability at Common Law, for the accidental loss by fire, by reason of the usage of the carriers in the particular trade, exempting them from such Common-Law liability. The court held that a custom or mage intended, as in this case, to alter established rules of law, must be of very long standing, so as to imply the general acqui- escence of all parties ; whereas the custom or usage in question of exemption from losses by fire was not only of very recent ori- gin, but had, in that State, been continually resisted.^ ' Singleton v. Hilliard, 1 Strob. 203, the court referring to Patton v. Magrath, Dudley, S. C. 163, and Swindler's case, 2 Rich. R. 286. See also Turney v. (a) So far as the bill of lading is a contract, parol evidence to vary its terms ia not admissible ; hence representations made before the signing of a bill of lading by the consignor of goods shipped under it, concerning the depth of water at the port of delivery, are not admissible to vary the obligation of the carrier,. Shaw v. Gardner, 12 Gray, 488. See also White v. Vankirk, 25 Barb. 16 ; Cox v. Peter- son, 30 Ala. 608 ; Simmons v. Law, 8 Bosw. 213. Parol evidence is admissible to explain a bill of lading. Bradley v. Dunipace, 1 H. & C. 521 ; Russian Steam Nav. Co. V. Silva, 13 C. B. n. s. 610. In Harmon v. New York R., 28 Barb. 323, a receipt was given by a railroad for a lot of furniture, and it specified " 1 cradle." The cradle was bound round with a carpet, and contained a valise and clothes, and there was evidence that the contents were communicated to the rail- road. Held, that it was liable for the loss of the valise. In Chouteaux v. Leech, 18 Penn. State, 224, the court held circumstantial evidence admissible that a printed clause in a receipt limiting the' liability of the carrier was by mistake not struck out. 208 LAW OP CARRIERS. [CHAP. Vn. § 231. But between the shipper and the ship-owner the bill of lading is not conclusive as to the quantity of merchandise shipped on board ; as in the case of a bill of lading signed by the master for eight hundred and ninety bags of pepper, and the declaration alleged that that number were shipped, and that some of them had been lost ; but the defence was, that only seven hundred and ninety bags were, in fact, shipped, and that the captain had been induced to sign the bill of lading for the greater number by the fraud of the plaintiff's agent; Chief Justice Tindal said he was of opinion that, as between the original parties, the bill of lading was merely a receipt, liable to be opened by evidence of the real facts, and left the question to the jury, whether, in fact, the greater or the lesser number of bags were shipped.^ The bill of lading is doubtless primd facie evidence of the amount and con- dition of the property shipped, (a) but the carrier may explain the bill by showing a mistake in the quantity and condition, and that he has complied with his legal duty in delivering all the property, and "in as good order as received.* (ft) So the carrier may be permitted to give evidence in contradiction to his bill of lading, that the goods were delivered to him in good order, if it be clearly proved that a fraud or imposition was practised upon him.^ But this rule does not apply to third persons, and if a third person is induced to become an indorsee of a bill of lading, for the value of it, the ship-owner cannot, as against such indorsee, dispute what the master, by his signature, has afiBrmed.* (c) The mas- Wilson, 7 Yerg. 340. It is the doctrine in Ohio, that in bills of lading, where the terms used have by usage acquired a particular signification, the parties will be presumed to have used them in that sense. But usage will not be permitted to control the terms used, unless it is established by clear and satisfactory proof. Wayne v. Steamboat Gen. Pike, 16 Ohio, 421. ' Bates V. Todd, 1 Moody & R. 106 ; and see Berkley v. Watling, 7 A. & E. 29. Where a bill of lading is signed and delivered before the goods are shipped, or even purchased, it will cover any goods aflerwards shipped as and for those named in the bill of lading. Rowley v. Bigelow, 12 Pick. 307. 2 Canfield v. Northern R. Co., 18 Barb. 586 ; Dickerson «. Seelye, 12 Ih. 99. ' Warden v. Greer, 6 Watts, 424. « Howard o. Tucker, 1 B. & Ad. 712. (a) Turner v. Ship Black Warrior, 1 McAll. 181. (6) Bissel V. Price, 16 111. 408. A clause in the bill of lading, " Any damage or deficiency in quantity, the consignee will deduct from balance of freight due the captain," does not take the case out of the general rule. Meyer v. Peck, 28 N. Y. 590. (c) In Sears v. Wingate, 3 Allen, 103, the following rules are laid down: CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 209 ter, therefore, should be careful not to sign bills of lading, until the goods are actually delivered to him, nor to permit the inser- tion of statements at variance with the facts ; as by so doing he may bind liis owners, and become himself responsible to them.^ § 232. But there never have been many questions, and but few comparatively are likely to arise, upon the interpretation of posi- ' Abbott on Shipp. P. 4, c. 4. A bill of lading signed by the master, for goods delivered on board his vessel for transportation, is the contract of the owner of the vessel. Ferguson ». Chappeau, 6 Harris & J. 394. If the admission in a bill of lading be construed to apply to the condition of the goods, the shipper may show that it was made by mistake, or procured by fraud ; as he is not bound to examine the inside of a package. Warden v. Greer, 6 Watts, 424 ; Gowdy v. Lyon, 9 B. Mon. 112, referring to Abbott on Shipp. top page 401 ; and see ante, § 212. " First. The receipt in the bill of lading is open to explanation between the mas- ter and the shipper of the goods. Secondly. The master is estopped, as against a consiffliee who is not a party to the contract, and as against an assignee of the bill of lading, when either has taken it for a valuable consideration upon the faith of the acknowledgments which it contains, to deny the truth of the statements to which he has given credit by his signature, so far as these statements relate to matters which are or ought to be within his knowledge. Thirdly. When the mas- ter is acting within the limits of his authority, the owners are estopped in like man- ner with him ; but it is not within the general scope of the master's authority to sign bills of lading for any goods not actually received on board." See also Wolfe v. Myers, 3 Sandf. 7 ; Ward v. Whitney, 3 Sandf. 399, 4 Seld. 442 ; O'Brien v. Gil- christ,.34 Maine, 554 ; Knox v. The Ninetta, Crabbe, 534 ; Benjamin v. Sinclair, 1 Bailey, 174; Backus v. Schooner Marengo, 6 McLean, C. C. 487; Wayland v. Mosely, 5 Ala. 430 ; Sutton v. Kettell, 1 Sprague, 309 ; The Henry, 1 Blatchf. & H. Adm. 485 ; Bissel v. Price, 16 111. 408 ; Butler v. The Arrow, 1 Newb. Adm. 59 ; Manchester v. Milne, Abbott, Adm. 115; Goodrich v. Norris, lb. 196 ; Hall v. Mayo, 7 Allen, 454 ; Eyder v. Hall, lb. 456 ; Bradstreet v. Heran, 2 Blatchf C. C. 116 ; Dows V. Greene, 32 Barb. 190; Meyer v. Peck, 33 Barb. 532, 28 N. Y. 590. Where the expression " contents unknown " is in the bill of lading, the acknowledgment of the master as to the condition of the goods extends only to the external condition. Clark v. Barnwell, 12. How. 272; Bissel v. Price, 16 111. 408; The Columbo, 3 Blatchf. C. G. 524; Ellis v. Willard, 5 Seld. 529. And if the expression " weight unknown ' is in the bill of lading, the master is only bound to deliver the weight shipped, although the bill of lading contains a state- ment of the weight. Sheph erd u. Nay lor, 5 Gray, 591. So if the expression is on e thousand bushels "more or less." Kelley «. Bowker, 11 Gray, 428. The same rule applies where the weight is stated in writing, and the expression " weight unknown" is in print. Jessel v. Bath, Law Rep. 2 Ex. 267. In West v. Steam- boat Berlin, 3 Clarke, Iowa, 532, although there was no statement of contents un- known, the court held the acknowledgment that the goods were received in good order related only to the external condition of the cases. See also ante, § 223 a; Valieri v. Boyland, Law Rep. 1 C. P. 382 ; Jessel v. Bath, Law Rep. 2 Ex. 267. 14 210 LAW OF CARRIEES. [CHAP. VD. tive or express contracts entered into for the transportation of goods. Many of the questions which have of late years, in Eng- land, engaged the attention of courts, have been upon implied contracts, or upon the validity, obligation, and effect of the writ- ten or printed Notices given by common carriers in the course of their public employment, and posted up and distributed, which announced that the carrier would not be accountable for property of more than a specified value, unless the. owner had insured and paid an additional premium for it. This practice in England grew out of the advancement of commerce, the increase of per- sonal property, and the consequent frequency with which articles of great value and small bulk were transmitted from one place to another. Carriers, thinking it reasonable, began to insist that their employers should, in such cases, pay a rate of remuneration proportionable to the risk undertaken, and they did so by the means just mentioned.^ But however long continued may have been the practice of giving such notices, their legal validity was not fully established until, at least, as late a period as the year 1785. For this we have the authority of Mr. Justice Burrough, who, in Smith v. Horne,^ said, " the doctrine of notice was not known until the case of Forward v. Pittard,^ which I argued many years ago." That case was decided in the year just men- tioned, and it is remarkable that if the question of notice was, in any form, before the court, it should not have been nientioned by the reporter ; and the decision was against the carrier, although the loss was occasioned by Jire, without his default. The doc- trine was not recognized in Westminster Hall until the year 1804, when the case of Nicholson v. Willan* was decided, ia which Lord EUenborough said : " The practice of making a special acceptance had prevailed for a long time, and that there was no case to be met with in the books, in which the right of the car- rier thus to limit, by special contract, his own responsibility, has ever been by express decision denied." But whatever may have been the rule where there was an express contract, or, in other words, a special contract in fact, the learned judge could not have intended to say that a carrier had for a long time been ' See note to Coggs v. Bernard, 1 Smith, Lead. Cas. 225. « Smith V. Home, 8 Taunt. 144. ' Forward v. Pittard, 1 T. K. 27. • Nicholson v. Willan, 5 East, SO 7. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 211 allowed to limit his liability by a general notice, or that a special contract had been implied from such a notice. Not longer before than the year 1793, Lord Kenyon, in considering obligations cre- ated by operation of law, and those created by a party's own act, he puts the case of common carriers, and said, they could not dis- charge themselves by any act of their own, " as by giving notice, for example, to that effect."^ § 233. The validity of these notices gradually became, however, firmly established in England ; and although many learned judges have expressed a regret that they were ever recognized in West- minster Hall,^ yet Chief Justice Best, in Riley v. Home, appears to think them proper. After adverting to the fact that the Com- mon Law makes a common carrier liable for every loss except by the act of God and the king's enemies, thiat learned judge pro- ceeded to say : "As the law makes the carrier an insurer, and as the goods he carries may be injured or destroyed by many acci- dents, aga,inst which no care on the part of the carrier can pro- tect them, he is as much entitled to be paid a premium for his in- surance of their delivery at their place of destination, as for the labor and expense of carrying them there. Indeed, besides the risk that he runs, his attention becomes more anxious, and his journey more expensive, in proportion to the value of his load. If he has things of great value contained in such small packages as to be the objects of theft or embezzlement, a strong and more vigilant guard is required than when he carries articles not easily Removed, and which offer less temptations to dishonesty. He must take what is offered to him to carry to the place to which he undertakes to convey goods, if he has room for it in his car- riage. The loss of one single package might ruin him. By means of negotiable bills, immense value is now compressed into a very small compass. Parcels containing these bills are contin- ually sent by common carriers. As the law compels carriers to undertake for the security of what they carry, it would be most unjust if it did not afford them the means of knowing the extent of their risk. Other insurers, whether they divide the risk, which they generally do, amongst several different persons, or one in- surer undertakes for the insurance of the whole, always have the ' Hyde v. Trent Navigation, 1 Esp. 36. ' See a review of the English cases in HoUistet v. Nowlen, 19 Wend. 234; and in Cole v. Goodwin, 19 lb. 251. 212 LAW OF CARRIERS. [CHAP. VH. amount of what they are to answer for specified in the policy of insurance."-^ § 234. Notwithstanding the force of the reasons above advanced by Mr. J. Best in favor of the equity of the rule, that a common carrier should be allowed to stipulate by a general notice, that they will not be responsible for any loss beyond a certain sum, unless the goods were specially entered and paid for; yet the subject has proved as fruitful a source of legal controversy as the subject of an acknowledgment of debt, or a new implied promise, under the statute of limitations ; and the policy of the law has been defeated as much by extravagant equitable constructions in respect to the former subject as in respect to the latter. The reader has only to refer to the cases of Hollister v. Nowlen,^ be- fore cited, and Cole v. Goodwin,^ to be willing to admit the truth of this assertion ; and Mr. Bell, in his Commentaries, adduces evidence of the truth of it : " Of the extravagance," he says, " into which this doctrine has run, and the distracting points which come to be involved in it, the newspapers and the books of reports are full. One carrier frees himself from responsibility for fire ;* another even from the common responsibility of the con- tract, for negligence.® One man is bound by a notice which has appeared in a newspaper that he is accustomed to read ; ^ another person, because a large board was stuck up in his office;' and another is freed from the effect of the notice in the office because handbills were circulated of a different import.* Then, it is said, what if he cannot read ? or if he does not go himself, but sends ' Kiley v. Home, 5 Bing. 217. See also Walker v. Jackson, 10 M. & W. 161 ; and the review of the numerous English cases in Hollister v. Nowlen, and Cole V. Goodwin, ub. sup. In Wyld v. Pickford, 8 M. & W. 443, the defendants gave notice to the_plaintiff that they would not be liable for loss or damage done to certain goods delivered to them for the purpose of carriage, unless the same were insured according to their value, and paid for at the time of delivery ; which limitation, said Parke, B., who delivered the judgment of the court, " it is compe- tent for a carrier to make, because being entitled by Common Law to insist on the full price of carriage being paid beforehand, he may, if such price be not paid, refuse to carry upon the terms imposed By the Common Law, and insist upon his own ; and if the proprietor of the goods still chooses that they should be carried, it must be on those terms." ' Hollister v. Nowlen, 19 Wend. 234. ' Cole V. Goodwin, 19 Wend. 251. » Moving v. Todd, 1 Stark. 79. * Leeson v. Holt, 1 Stark. 186. • Ibid. ' Clark V. Gray, 4 Esp. 177. » Cobden v. Bolton, 2 Camp. 108. CHAP. VII.] LIMITATION OF EESPONSIBILITY BY NOTICES. 213 a porter, and he cannot read ? Or, what if he be blind, and can- not see the placard ? And thus difSculties multiply ; the courts are filled with questions, and the public left in uncertainty." ^ The same learned writer also says : " The unhappy consequences of this doctrine are to be ascribed, as it would seem, to a wrong bias unfortunately admitted in the progress of its establishment, from not keeping a steady eye upon the principles which ought to have regulated the practice of giving notices. There seems to be only one point to which, legitimately, notices of carriers could be admitted, viz., the regulation of the consideration for risk. Sav- ing always the power of making an express contract, the effect of a mere notice ought justly to be restricted to this point ; as to which alone it is competent for a carrier to refuse employment. Had this been attended to, the law on this subject would have been conformable to the general system of jurisprudence, and a sort of legislative power never would have been assumed by com- mon carriers. Any exorbitancy of charge • would at once have been brought to a true standard by judicial determination ; while the responsibilities of the carrier, under the Common Law of his contract, and on the principles of public policy, would have remained untouched but by positive agreement in each indi- vidual." 2 § 235. It is generally admitted, in respect to the subject of no- tices, first, that a carrier's general run of goods may be estimated and notice given that he will not be answerable for those of a dif- ferent description, as jewelry, money, &c., of extraordinary value ; secondly, that for the greater risk attending goods of such a de- scription, and the greater care required, a higher consideration, partly as hire, and partly as insurance, should be given. The English decisions, for the most part, have gone only to this extent ; and although none of them were made at the time of the Ameri- can Eevolutibn, yet to deny that they are not to enter into and form a part of our own law, limited as above mentioned, would be, according to the opinion and in the words of Mr. J. Cowen, " to rise against the united authority of "Westminster Hall both before and since the Revolution." ^ But there have been some decisions in England, which go to a much greater extent than this, and so far, as to permit a common carrier, without an express contract, ' 1 Bell, Com. 382. ' 1 BeU, Com. 382. ' Cole V. Goodwin, 19 Wend. 251 ; 2 Kent, Com. 606, 607. 214 LAW OF CARRIERS. [CHAP. Vtt and at his own discretion, by a mere general notice, to put an ab- solute limit on the public duty and responsibility which are im- posed upon him by public policy ; and this is the important sub- ject of attention. As was asserted by an English writer more than thirty years ago : " The lawyer's discrimination and judgment must be chiefly directed to, and conversant with, the effect of these undertakings by which common carriers have almost entirely di- vested themselves of the character of public servants, and have endeavored to assume the privileges of special contractors ; in di- rect violation of the policy and in opposition to the first principles of the Common Law." ^ § 236. There are two nisi prius decisions in England which allow the carrier to cast off all liability whatever. In Having v. Todd,^ the defendant had given notice that he would not answer for a loss hjfire, and such a loss having occurred, Lord Ellenbor- ough thought that carriers might exclude their liability altogether, and nonsuited the plaintiff. In Leeson v. Holt,^ tried in 1816, the same learned judge made a like decision ; thoiigh he remarked, that " if this action had been brought twenty years ago the defend- ant would have been liable ; since by the Common Law a carrier is liable in all cases except two." Here is a very distinct admission of what will be found in many of the English cases, that the courts had departed from the law of the land. § 237. Now, admitting the carrier's right so to restrict his re- sponsibility as not to be liable for a loss hjfire, happening other- wise than by lightning, by an express contract entered into by the parties, it by no means follows he can do so merely by his own act ; or, that it may be inferred from a mere general notice to the public (though brought home to the knowledge of the other par- ty), limiting his obligation, which may or may not be assented to.* The law, as laid down by the court, in HoUister v. Nowlen, in New York, and confirmed by the Supreme Court of the Ihiited States, in the late case of The New Jersey Steam Navigation Company v. Merchants' Bank,^ is, that if any implication is indulged in, from • Jeremy on Carr. 3. « Having v. Todd, 1 Stark. 72. " Leeson v. Holt, 1 Stark. 186. ' Jeremy on Carr. 35, 36 ; Hollister v. Nowlen, 19 Wend. 234 ; Cole v. Good- win, 19 Wend. 251. ' See opinion of Nelson, J., in New Jersey Steam Navigation Company v. Mer- chants' Bank, 6 How. 344. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 215 the delivery of the goods to the carrier, under the general notice, it is as strong that the owner intended to insist upon his rights, and the carrier's duties, as it is that he>assented to their qualifica- tion. The carrier is in the exercise of a public duty, a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. The owner of the goods, by entering into an express contract, virtually agrees that in respect to the particular transaction the carrier is not to be regarded as in the exercise of his public employment, but as a private person, who incurs no other responsibility than that • of an ordinary bailee for hire.^ This view of the subject is in this country well sustained by authority, (a) § 238. The point which was expressly decided, upon great de- liberation, in HoUister v. Nowlen, in New York, at the May term of the Supreme Court, 1838, was, that stage-coach proprietors and other common carriers could not restrict their Common-Law lia- bility by a general notice that the " Baggage of Passengers is at the Riskofthe Owners." The same point was decided at the same term of the court in Cole v. Goodwin,^ in which the whole doctrine of notices generally is elaborately and learnedly discussed by Mr. Justice Cowen, and in which the English decisions iipon the subject of notices in general are carefully reviewed by that learned judge ; ® and the opinion of the learned judge may be in- terpreted as going even to the extent, that a common earner can- not exclude his Common-Law liability by an express contract, as will appear by the following section. ' Ante, Chap. HI. " Cole V. Goodwin, 19 Wend. 251. ' Inthe case of Camden R. v. Belknap, 21 Wend. 354, the defendant brought an action on the case in the court below, (the Superior Court of the city of New York,) against the company as common carriers for the loss of baggage. The chief justice in the court below charged the jury that notice limiting the liability of the defendants, if it reached the plaintiff or came to his knowledge, controlled the Common Law. But in error, in the Supreme Court of the State, Bronson, J., in delivering the opinion of the court, said : " The case was tried before we had formatty refused to -engraft upon our code the modern English innovation of allow- ing the carrier to limit his Common-Law liability, by a notice brought home to the employer." In Clark v. Faxton, 21 Wend. 153, it was held the same as in Hollister v. Nowlen, and Cole v. Goodwin. (a) See Western Transp. Co. v. Newhall, 24 111. 466. 216 LAW OF CARRIERS. [CHAP. Vn. § 239. The decision in the case of Gould v. Hill, in New York, in 1842,^ is, that common carriers cannot limit their liability, or evade the consequences c^ a breach of their legal duties as such, by an express agreement. And accordingly the court decided, that where common carriers, on receiving goods for transportation, gave the owner a memorandum, by which they promised to for- ward the goods to their place of destination, " danger of /re, &c. excepted," they were liable for a loss by fire, though not resulting from negligence. The opinion of the court was delivered by Co wen, J., who. said he should do little more than refer to the case of Cole v. Goodwin, and the reasons for such opinion as stated in that case. He then proceeded to say : " It was to the effect that I could no more regard a special acceptance as operating to take from the duty of a common carrier than a general one. I collect what would be a contract from both instances, provided it be lawful for the carrier to insist on it ; and such is the construc- tion which has been given to both by all the courts. The only dif- ference lies in the different kinds of evidence by which the contract is made out. "When the jury have found that the goods were de- livered with intent to abide the terms of the general notice, I un- derstand a contract to be as effectually fastened upon the bailor as if he had reduced it to writing. Indeed, the contrary construc- tion would, I think, be to tolerate a fraud on the part of the bail- or. The true ground for repudiating the general notice is, there- fore, its being against public policy ; and this ground goes not only to the evidence, — the mode in which you are to prove the assent, — but to the contract itself. After forbidding the carrier to impose it under the form of a general notice, therefore, we cannot consistently allow him to do the same thing in the form of a spe- cial notice or receipt. The consequences to the public would be the same, whether we allow one form or the other." ^ » Gould V. Hill, 2 Hill, 623. " The reasoning of Chief Justice Gibson, in Atwood v. Eelianee Trans. Co., 9 Watts. 87, was much to the same effect, though the question was not decided. In 1849 it was considered by Bronson, J., in giving the opinion of the Court of Appeals in New York, still a debatable question, whether common carriers and innkeepers can contract for a more restricted responsibility than the law imposes upon them. Wells v. Steam Nav. Co., 2 Comst. 204. Of course there is no room to doubt that other bailees may contract (private carriers, for example) for a more restricted responsibility than would be implied against them m the absence of a special contract ; and so, in that manner they may become in- CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 217 § 239 a. But since the opinion of the court in the case of The New Jersey Steam Navigation Company v. Merchants' Bank,^ the courts of New York, in the cases of Parsons v. Monteith ^ and Moore v. Bvans,^ have receded from the doctrine of former cases, so far as respects the competency of a carrier to make a special agreement, and have adopted the views of the United States Su- preme Court, in the case first named. The rule may be said to be sustained by authority, that a common carrier may by express contract or agreement with the owner so vary and change his rela- tion as to become a private carrier.* \ 240. In Ohio, the question whether a common carrier could limit his Common-Law responsibility by notice was first brought before the Supreme Court of that State in 1840, on a special ver- dict, in the case of Jones v. Voorhees,^ and the court, upon great deliberation, held, and in their opinion delivered by Wood, J., earnestly insisted, that the proprietors of stage-coaches cannot avoid their responsibility for negligence by actual notice to a trav- eller, that the baggage is at " his own risk." § 241. The doctrine, as above established in New York and in Ohio, is defended by an elaborate opinion of the Supreme Court of Georgia, which was delivered by Nisbet, J., who says : " I have Burers against all possible hazards. lb. And see ante, § 59. The following im- portant intelligence appeared in the Boston Daily Advertiser about the first of October, 1850, and was copied from the New York Express: "The General Term of the Court of Common Pleas has decided that a common carrier has a right to make a special contract with those sending goods by him, a rule, the con- trary to which has usually hitherto been held. The Merchants' Mutual Insurance Company insured goods for a party at the West, which were placed on board a harge belonging to the Western Transportation Company, and burnt at the great fire at Albany, while on their way. The Insurance Company paid the loss and sued the Transportation Company, contending they were bound to deliver the goods at the place of destination. The printed receipts of the Transportation Company expressly proved that they will not be liable for loss by fire. The court holds that said clause is good and valid, and gave judgment for the Trans- portation Company, no negligence having been shown on their part." ' New Jersey Steamboat Co. v. Merchants' Bank, 6 How. 344 ; and see ante, § 221. ' Parsons v. Monteath, 13 Barb. 358. ' Moore ». Evans, 14 lb. 624. * Kimball v. Rutland R., 26 Vt. 247. And see post, § 245. The case of Gould V. Hill is also overruled in Dorr v. New Jersey Steam Nav. Co., 4 Sandf. 136, 1 Kern. 485. ' Jones V. yoorhees, 10 Ohio, X45. 218 LAW OF CAEEIEES. [CHAP. VU. said that a common carrier cannot vary his liability as it existed at Common Law in 1776, by notice or special acceptance. On account of the importance of this subject, I propose to give it a more minute exposition. This is an age of railroads, steamboat- companies, stage companies, locomotion, and transportation. It is an era of stir, — men and goods run to and fro, and common carriers are multiplied. The convenience of the people and safety of property depend more now, I apprehend, upon the rules which regulate the liability of these public ministers than at any other period of the world's history. Steam, as a transporting power, has supplanted almost all other agencies, and it is used for the most part by public companies or associations. It is very impor- tant that their liability should not only be accurately defined, but publicly declared. Anterior to 1776, the common carrier was an insurer for the delivery of goods intrusted to him, and liable for losses occasioned by all causes except the act of God and the king's enemies, and without the powe* to limit his responsibility. That this was the law, is proven by the numerous authorities which I have before referred to. No adjudication, before that time, had relaxed its stringent but salutary severity." The learned judge re- ferred to the case of Forward v. Pittard, in 1785, as the first case in which the doctrine of notice was recognized, according to Mr. J. Burrough, in Smith v. Home, and to the case of Nicholson v. Wil- liams, in 1804,^ when it was finally settled by judicial decision ; and, referring to the decisions in New York and Ohio, he further observed : " We adhere, then, to the sound principles of the Com- mon Law, sustained by the courts of our own Union, and hold notices, receipts, and contracts, in restriction of the liability of a common carrier, as known and enforced in 1776, void, because they contravene the policy of law." ^ (a) § 242. In Hale v. The New Jersey Steam Navigation Company, in Connecticut,^ it was held, that where a steamboat was in the • business of transporting goods from New York to Providence; and the goods were lost in Long Island Sound, near Huntingdon, Long Island ; the contract of the parties was.to be governed by the law of New York ; and that by the law of New York, common ' See ante, § 232. » Fish V. Chapman, 2 Kelly, 349. ' Hale V. New Jersey Steam Nav. Co., 15 Conn. 539. (a) But see Cooper «. Berry, 21 Ga. 526. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 219 carriers could not, by a public notice, restrict the liability imposed upon them by the Common Law. § 243. The doctrine established in the above States, that com- mon carriers cannot exclude their Common-Law responsibility by a general notice to that effect, or by a notice that the property is at the " risk of the owners," was recognized by the court in Ben- nett V. Button, in New Hampshire ; ^ and in Massachusetts, there is no disposition to relax the requisitions of the doctrine of the Common Law, as applied to, common carriers, nor to give counte- nance to ingenious devices, by which its provisions may be evad- ed.^ (o) There is also a like indisposition to favor or extend the indulgence of notices in Maine.^ The question in Prentiss v. Bar- ney, in Maryland,* was left undecided. In Pennsylvania there are numerous and strong dicta against the expediency of allowing any limitation of the carrier's liability.^ " Notwithstanding," says C. J. Gibson, " the unfortunate direction given to the decisions of an early day, it is still almost susceptible of a doubt, whether an agreement to lessen the Common-Law measure of a carrier's re- sponsibility, like an agreement to forego a fee-simple tenant's right of alienation, or a mortgagor's right of redemption, is not void by the policy of the law. Though," said he, " it is perhaps too late to say that a carrier may not accept his charge in special terms, it is not too late to say that the policy which dictated the rule of the Common Law requires that exceptions to it be strictly inter- preted, and that it is his duty to bring his case strictly within them." 6 ' Bennett v. Button, 10 N. H. 487. ' Per Hubbard, J., in Thomas v. Boston E., 10 Met. 479. ' Per Weston, C. J., in Bean v. Green, 12 Maine, 422. * Barney v. Prentiss, 4 Harris & J. 317. ' Beckman v. Shouse, 5 Kawle, 179 ; Eagle v. "White, 6 Whart. 505. ' Atwood V. Reliance Trans. Co., 9 Watts, 87. In Bingham v. Eogers, 6 Watts & S. 495, it seems to be admitted rather reluctantly, on the authority of Beckman v. Shouse, that carriers by land may by special contract limit their re- sponsibility, though in the court below the jury were instructed that common carriers could not, by notice, limit their liability as to the safety of the property, though they might by notice brought home to the owner, require the latter to state the nature or value of the property, or might for that purpose make a spe- cial acceptance ; but they could not by notice rid themselves of the duty imposed by law to be answerable for the property, unless the loss accrue by inevitable accident. (a) See Judson v. Western E., 6 Allen, 486. 220 ^. LAW OF CAEEIEES. [CHAP. VII. § 244. Finally, that a common carrier cannot exempt himself entirely from the responsibility, or from the duties which the law- has annexed to his employment, by a notice published by the car- rier, was very lately declared by the Supreme Court of the United States, in the case of the New Jersey Steam Navigation Company V. The Merchants' Bank.^ The court, in this case, gave their as- sent to the law as laid down by the court in HoUister v. Nowlen, in New York ; ^ and they say : " We lay out of the case the notices published by the respondents, seeking'to limit their responsibility; because the carrier cannot in this way exonerate himself from du- ties which the law has annexed to his employment." The Ameri- can Reports, therefore, afford additional testimony of the truth of the assertion made by Burrough, J., in Duff v. Budd,^ viz., that " carriers are constantly endeavoring to narrow their responsibil- ity and to Cfeep out of their duties ; and I am not singular in thinking that their endeavors ought not to be favored." ' New Jersey Steam Nav. Co., v. Merchants' Bank, 6 How. 344. See ante, §§ 238, 239. ' The courts of South Carolina appear inclined to give effect to notices which claim to exonerate a common carrier from his Common-Law liability. Ante, §§ 159, 224. In the case of Singleton o. Hilliard, 1 Strob. 203, in which the action was to recover damages for the loss of a large number of bales of cotton, that were consumed by fire on the defendants' steamboat, the general legal prop- osition of the appellants was, that the ship-owners, HUliard & Brooks, were ex- empt from their liability at Common Law for the accidental loss by fire, by reason of the express notice, that they were not to be held liable for such losses by fire, unless upon payment of certain specified and additional freight. The notice in question, and duly signed by the agent, was as follows: " Steamboat Notice. — The proprietors of the steamboat line plying from Camden and Columbia to Charleston, having made arrangements with the Augusta Insurance and Banking Company, to insure all cotton shipped by their boats from the above places, in- form their friends and the public generally, that bills of lading for cotton will be given by the agents at Camden and Columbia, free of all risks, both from fire and the navigation, without additional charge." Richardson, J., who gave the opinion of the court in reference to this notice, said : " From this advertisement in a Cam- den paper, I cannot conceive that any one could understand that the shipper had to pay twelve and a half cents on each bale, in order to render the owners of the steamboats liable for losses by fire." Another fact the learned judge mentioned as worthy of notice, which was, the uncertainty of a knowledge on the part of the shippers and their agents, of the advertisement in question in the public papers ; and, in short, the court considered the case, " that of a man shipping his cotton on a steamboat, paying customary freight, which cotton has been destroyed in the boat by fire, apd the owner of course liable." ' Duff u. Budd, 3 Brod. & B. 177. CHAP. VII.] LIMITATION OF EESPONSIBILITY BY NOTICES. 221 § 245. Thus, in the words of an eminent legal -writer, " the right of a common carrier, by a general notice, to limit, restrict, or avoid the liability devolved on him by the Common Law, on the most salutary grounds of public policy, has been denied in . American courts, after the most elaborate consideration." ^ That a common carrier is bound to receive goods offered to him for car- riage, we have seen.^ But, at the same time, as the learned wri- ter above referred to says, " it is now well settled that a common carrier may qualify his liability by a general notice to all who may employ him; of any reasonable requisition to be observed on their part, in regard to the manner of delivery and entry of parcels, and the information to be given to him of their contents, the rates of freight, and the like ; as, for example, that he will not be re- sponsible for goods above the value of a certain sum, unless they are entered as such, and paid for accordingly." ^ Notwithstand- ing such notice the owner of the goods has (as before men- tioned) a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment.* ' 2 Greenleaf, Ev. § 215. ' See ante, Ch. V. " Ibid., ante, § 235, Kent, Com. 606, 607 ; Story on Bailm. § 557 ; Slim v. Great Northern R., 14 C. B. 647, 26 Eng. L. & Eq. 297; Chippendale v. Lancashire E., Q. B. 1851, 7 Eng. L. & Eq. 395 ; Moses v. Boston R., 4 Foster, 71 ; David- son V. Graham, 2 Ohio, State, 131. For example, the plaintiff delivered a horse to a railroad company, to be by them carried, but upon his doing so, he was re- quired by them to, and did, sign a ticket, which contained the following words : " This ticket is issued subject to the owner undertaking to bear all the risk of in- jury by conveyance and other contingencies ; the company will not be responsible for any damage, however caused, to horses," &c. This, it was held, amounted to a " special contract," and the company were thereby exempted from all liability for any damage that might be occasioned to the horse. Morville v. Great North- ern R., Q. B. 1852, 16 Jur. 528, 10 Eng. L. & Eq. 366. In Orange County Bank V. Brown, 9 Wend. 115, the court, by Nelson, J., say, that " if he " (the carrier) " has given general notice that he will not be liable over a certain amount, unless the value is made known to him at the time of delivery, and a premium for insur- ance paid, such notice, if brought home to the knowledge of the owner, is as effectual in qualifying the acceptance of the goods, as a special agreement, and the owner at his peril, must disclose the value, and pay the premium ; and the carrier, in such case, is not bound to make the inquiry." The only modification which the Supreme Court of Georgia would admit, of the rule of responsibility of a common carrier at Common Law, by a general notice, is as above stated in the text. Fish v. Chapman, 2 Kelly, 349. See also the modern English case of Wyld V. Pickford, 8 M. & W. 443, and the earlier English cases referred to in Hollister v. Nowlen, 19 Wend. 234 ; Cole v. Goodwin, 19 Wend. 251. And see ante, § 234. ' See Hollister v. Nowlen, 19 Wend. 234 ; Kimball v. Rutland R., 26 Vt. 247. 222 LAW OF CARRIERS. [CHAP. Vn. § 246. If the carrier has published two different notices, each of which is before the public at the time of the carriage, that will bind him which is least beneficial to himself; and if, at the time of the carriage, he delivers a written notice without any limita- tion of responsibility, that nullifies his prior notice containing a limitation.^ § 247. In all cases where the notice cannot be brought home to the person interested in the goods, directly or constructively, it is a mere nullity ; and the burden of proof is on the carrier to show that the person with whom he deals is fully informed of the terms and effect of the notice.^ When the notice is thus brought home, in the absence of all contravening circumstances, it is deemed proof of the contract between the parties, and is then to be con- strued like every othei- written contract ; and, so far as the excep- tions extend, they convert the general law into a qualified respon- sibility.^ (a) § 248. The most usual evidence to show that the plaintiff has had notice of the defendant's terms has been by proof- that a no- tice was put up in the office where the goods were received and entered for the purpose of carriage, in so conspicuous a situation that it must (unless he were guilty of wilful negligence') have attracted the attention of the plaintiff or his agent;* and the printed conditions of a line of public coaches were held to be made sufficiently known to passengers by being posted up at the place where they book their names.^ But this proof fails where the party who delivers the goods at the office cannot read.^ If courts admitted the validity of mere presumptive notices, they ' Munn V. Baker, 2 Stark. 255 ; Cobden tf. Bolton, 2 Camp. 108. ' Story on Bailm. § 560 ; 2 Greenl. Ev. § 216 ; HoUister v. Nowlen, 19 Wend. 234 ; Brooke v. Pickwick, 4 Bing. 218 ; Beekman v. Shouse, 5 Kawle, 189 ; Sager V. Portsmouth R., 31 Maine, 228 ; Farmers' Bank v. Champlain Trans. Co., 23 Vt. 186; Great Western R. v. Goodman, 12 C. B. 313, 11 Eng. L. & Eq. 546; Camden R. v. Baldauf, 16 Penn. State, 67. ' Ibid. * 2 Starkie, Ev. 338. ' Whitesell v. Crane, 8 Watts & S. 369. • Davis V. Willan, 2 Stark. 279. (a) Walker v. York R., 2 Ellis & B. 750, 22 Eng. L. & Eq. 315. A notice posted on a steamboat that the owners will not be responsible for ba^age, un- less it is checked, will not protect them against the claim of a passenger, if, oh demand, a check is refused. Freeman v. Newton, 3 E. D. Smith, 246. , CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 223 and juries would be continually perplexed by a thousand nice questions. Thus if a notice posted upon the walls of the office of delivery is to be held primd facie evidence that it has been read by the bailor, the rule certainly will not prevail if he happen to be very near-sighted, and so unable to read the notice.^ Where the goods were delivered by a porter, who admitted that he had frequently been at the defendant's office, and that he had seen a printed board, but did not suppose that it contained anything ma- terial, and, in fact, had never read it, it was held that, although the board in fact contained a notice, the evidence of notice was insufficient ; and that it was incumbent on a party who wished to lessen his Common-Law responsibility, to give effectual notice.^ So there was a failure of proof where the notice at the office at Cheltenham stated the advantage of carriage by the particular wagon, in large letters, and the notice of non-responsibility, in small characters,^ although at the terminus of the carrier's route notice was given at the office by means of a board inscribed with large letters. So also where goods are not delivered at the office where the notice is exhibited, but are delivered into a cart sent round to receive goods;* or, at an intermediate stage between the two places, from each of which the carrier conveys goods to the other,' if there be no notice a,t the place of delivery ; although notices are suspended at the two termini.® § 249. Another usual mode of proof of notice, is by evidence, that the notice was given by printed cards, or by advertisements in the public newspapers ; but this is insufficient, unless it be proved that the plaintiff has seen such cards, or read the newspa- pers ; ^ or is accustomed to read the newspapers so as to lay a foundation for presuming knowledge.'^ If the carrier relies on the distribution of printed handbills, he must show that one of them was actually delivered to the owner, or to the person bring- ing the goods for conveyance.^ ' See Law Rep. for September, 1852. ' Kerr v. Willan, 2 Stark. 53. " Butler v. Heane, 2 Camp. 415. ' Clayton v. Hunt, 3 Camp. 27. ' Gouger v. Jolly, 1 Holt, 317. ' 2 Stark. Ev. 338 ; Jenkins v. Blizard, 1 Stark. 418 ; Clayton v. Hunt, ub. sup. ; Leeson v. Holt, 1 Stark. 186. ' Ibid, and Rowley v. Home, 3 Bing. 2; Griffiths v. Lee, 1 Car. & P. 110. ' Palmer v. Grand Junction R., 4 M. & W. 749. Parol evidence is admissible to show the contents of a handbill put up in a stage-office four years before, con- taining a notification of limited responsibility. Whitesell v. Crane, 8 Watts & S. 369. 224 LAW OF CARRIERS. [CHAP. VIE. § 250. It was said by Best, J., in Brooke v. Pickwick .-i "If coach proprietors wish honestly to limit their responsibility they ought to announce their terms to every individual who applies at their office, and, at the same time, place in his hands a printed paper specifying the precise extent of their engagement. If they omit to do this they attract customers under the confidence in spired by the extensive liability which the Common Law imposes upon carriers, and then endeavor to elude that liability by some limitation which they have not been at the pains to make known to the individual who has trusted them." This course received , the full approbation of the court, by Bronson, J., in Hollister v. Nowlen.^ The usual practice of railway companies in England, in respect to this subject, is, upon the receipt of the goods, to de- liver a ticket explaining the terms upon which the company are willing to accept them, Proof of the delivery on the one side; and the acceptance on the other, of such a ticket, is sufficient to constitute a special contract ; but if there is no proof of the production and delivery of the ticket to the other party the ground of exemption fails, and the company consequently must be taken to stand on the ordinary footing of carriers at Common Law.^ (a) § 251. A notice known to the owner of the goods binds him in respect to all his agents who send goods by the same carrier.* And, on the other hand, a notice known to the porter, messenger, or ag-ent of the owner of the goods is notice to him uotwith- ' Brooke v. Pickwick, 4 Bing. 218. " Hollister v. Nowlen, 19 Wend. 234. " Waif. Sum. of Laws of Kailways, 308. * Story on Bailm. § 558 ; Mayhew v. Eames, 3 B. & C. 601 ; Maving v. Todd, 1 Stark. 72 ; Clark v. Hutchins, 14 East, 475 ; Great Western K. v. Goodman, 12 G. B. 313, 11 Eng. L. & Eq. 546 ; Great Northern E. v. Morville, Q. B. 1852, 21 L. J. N. s. Q. B. 319. (a) There is no legal presumption that rules printed on the back of a passen- ger ticket are read by the passenger, and they do not, unless read, constitute no- tice to him. Brown v. Eastern E., 11 Gush. 97. And the rule is the same where the words " look on the back " are printed in small type on the face of the ticket. Malone v. Boston E., 12 Gray, 388. So where the general object of the ticket is printed in large letters and the restriction in small. Verner v. Sweitzer, 32 Penn. State, 208. See Nevins v. Bay State Steamboat Co., 4 Bosw. 225. That the words on the ticket of a passenger " carried gratuitously " are evidence of a con- tract, see Perkins v. New York R, 24 N. Y. 196. See ahopost, § 528, note. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 225 standing the owner is personally ignorant of such notice ; ^ for indeed the maxim that the principal is civilly bound by the acts of his agents universally prevails, both in courts of law and equity;^ it being taken for granted that the principal knows whatever the agent knows.^ But a knowledge of notice by a postmaster to whom a trunk is delivered by the plaintiff's servant, ' to be by him delivered to a stage-driver, will not affect the owner of the trunk if the knowledge has not been communicated to him or to his agent or servant, by the postmaster.* § 252. Where several persons are carriers as partners, and pub- lish a notice, and one of the partners afterwards undertakes, with- . out any communication with, or knowledge of, the others, to carry packages for a particular person, free of expense, it seems^ that such a contract is not binding on the partnership, in derogation of their notice ; that is, if such act is not within the scope of his au- thority, or is done by connivance in fraud of their rights.^ § 253. Had carriers, by a general consent, adopted one certain approved legal form of notice to qualify their responsibility in ex- traordinary cases, few rules of construction of notices woiild have been necessary, and few difficulties would have arisen in deter- mining when the circumstances of any case came within the gen- eral rules of exception. But as carriers have in general adopted each a peculiar form of notice, the cases have been decided in ref- erence only to, and upon a construction of, such particular no- tices. Hence, it has seldom happened in England, that one case affords a parallel or precedent for another, which arises upon a differently worded limitation.^ In one case, where the terms of the contract were, that " cash, plate, jewels, &c., would not be accounted for, if lost, of more than £ 5 value, unless entered as such, and paid for," the carrier was not held liable for any loss ' Bean v. Green, 12 Maine, 422 ; Baldwin v. Collins, 9 Rob. La. 468 ; New . Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344 ; and see ante, §§ 91, 98. ' As per Lord Kenyon, C. J., in Doe v. Martin, 4 T. K. 66. ' As per Ashhurst, J., in Fitzherbert v. Mather, 1 T. K. 12. And see also An- derson V. Highland Turn. Co., 16 Johns. 88. * Bean v. Green, 3 Fairf. 422. " Story on Bailm. § 559. ' Bignold V. Waterhouse, 1 Maule & S. 255 ; Helsby v. Mears, 5 B. & C. 504. ' See Jeremy on Carr. 45 ; and Hollister v. Nowlen, 19 Wend. 34; and Cole ». Goodwin, 19 Wend. 251 ; and ante, § 234. .15 226 LAW OF CAEEIEES. {CHAP. m whatever, in case the goods exceeded the specified value, and no ■ entry or payment of the increased value had been made.^ In an- other case, where, the terms of the notice were, that " no more than £1 5 will be accounted for, for any goods or parcels delivered at this office, unless entered as such, and paid for accordingly," the plaintiff was allowed to retain his verdict for £ 5, as a hmited amount of damages recoverable by him under the conditions of this contract.^ (a) § 254. It is very obvious, as has been truly said, that " it is of great practical importance to carriers to fix the terms of their no- tices in such a manner as to avoid all ambiguity; as, in all cases of doubt, they will be construed unfavorably to the carrier."' Where the notice of a stage company related solely to the bag- gage of passengers, it was contended that the notice extended not only to the baggage, but included also goods and merchandise under the superintendence of the carrier, but the court refused to accede to such a construction ; and they said that if the defend- ants wished to be understood as they insisted, it was certainly not unreasonable to require something more explicit, and less liable to ambiguity than what the notice on which they relied contained.* ' Clay V. Willan, 1 H. Bl. 298 ; and see Hutton v. Bolton, there cited. " Clarke i). Gray, 6 East, 564. ' Jeremy on Carr. 47 ; and see Story on Bailm. § 556. * Beekman v. Shouse, 5 Rawle, 179. An action was brought against common carriers, being the proprietors of a line of stage-coaches running between Balti- more and Philadelphia, for the transportation of passengers and goods and me^ chandise for hire, for negligence in not delivering a case of goods, delivered by the plaintiff at the stage-office, and entered on the way-bill for transportation. The defendant had published in the various newspapers printed in B. (and wliich advertisement was known to the plaintiff) the time when the stages would start from, and arrive at, the respective cities, and the publication contained also these clauses : " Fare and allowance of baggage as usual. All baggage at the risk of the owners thereof." " All the baggage over twenty pounds will hereafter posi- tively be charged, and be at the risk of the owners thereof." It was held, that if the owners of stage-coaches, which carry not only passengers and their baggage, but goods which the owner does not accompany, can by their publications exempt themselves from their liability, which the court did not mean to decide, then such publication should, in that respect, be plain and explicit. That in this case the defendants' advertisement was in doubtful and ambiguous language, and that they were as responsible for the loss of the goods as if no advertisement had been pub- lished by them. Barney v. Prentiss, 4 Harris & J. 317; and Dwight v. Brewster, 1 Pick. 50. (a) Newstadt v, Adams, 5 Duer, 48. CHAP. Vn.] LIMITATION OF RESPONSIBILITY BY NOTICES. 227 § 255. A general inclination of the public to avoid their sub- jection to extortion by the power allowed to carriers of thus fix- ing the additional premium on valuable goods, and a consequent general neglect to give the information required, carriers, instead of beuig what they originally were intended, proved arbitrary ex- tortioners, and successful evaders of the Common-Law policy. The interests of commerce demanded the legal enforcement of some gradual scale of price, proportionate to the value or bulk of the articles; and thereby control the power which carriers had as- sumed.^ These considerations, together with that of the diffi- culty of proving the notice to have come to the knowledge of the other party, at length induced the English Parliament to inter- fere, by the statute 11 Geo. IV., and 1 Wm. IV. c. 68 ; a statute wliich has, to some extent, as relates to carriers by land, restored the operation of the Common Law.^ By thus substantially reas- serting the rule of the Common Law, it has been considered that rehef has been afforded both to the courts and to the public ; and that, if the people of Great Britain, " after a long course of legal controversy, have retraced their steps and returned to the sim- plicity and certainty of the Common-Law rule, we (in tliis coun- try) ought to profit by their experience." ^ (a) § 256. The statute above referred to (the adoption of the pro- visions of which is so decidedly recommended) is entitled " An Act for the more effectual protection of mail contractors, stage- coach proprietors, and other common carriers for hire, against the loss of or injury to parcels or packages delivered to them for con- veyance or custody, the value and contents of whicli shall not be declared to them by the owners thereof." It recites that, " by reason of the frequent practice of bankers and others, of sending ' Jeremy on Carr. 41. ' Story on Bailm. § 554. ' Bronson, J., in giving the opinion of the court in HoUister v. Nowlen, 19 "Wend. 234. (a) If there is an entire contract to carry partly by land and partly by sea, as to the land journey the act applies. Le Conteur v. London R., Law Rep., 1 Q. B. 54. See also act of 1854, 17 & 18 Vict. c. 31 ; Simons v. Great Western R., 18 C. B. 80b, 37 Eng. L. & Eq. 286 ; London R. u. Dunham, 18 C. B. 826, 37 Eng. L. & Eq. 299 ; Pardington v. South Wales R., 1 H. & N. 392, 38 Eng. L. & Eq. 432 ; Wise v. Great Western R., 1 H. & N. 63, 36 Eng. L. & Eq; 574. This statute is considered at length in Peek v. North Staffordshire R., 10 H. L. Cas. 473; and see post, § 257. 228 LAW OF CAEKIEES. [CHAP. VIL by the public mails, stage-coaches, wagons, vans, and other public .conveyances by land, for hire, parcels and packages containing money, bills, notes, jewelry, and other articles of great value in small compass, much valuable property is rendered liable to dep- redation, and the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire is greatly increased; and that, through the frequent omission by persons sending such parcels and packages to notify the value and nature of the con- tents thereof, so as to enable such mail contractors, stage-coacU proprietors, and other common carriers, by due diligence, to pro- tect themselves against, losses arising from their legal responsi- bility, and the difficulty of fixing parties with knowledges of no- tices, published by such mail contractors, stage-coach proprietors, arid other common carriers, with the intent to limit such respon- sibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses " ; it is therefore enacted in section 1, that no mail contractor, stage-coach proprietor, or other common carriers by land, for hire, shall be liable for the loss of, (a) or injury to, any article or property of the description fol- lowing ; that is to say, gold or silver- coin of this realm, or of any foreign state, or any gold or silver in a manufactured or unman- ufactured state, or any precious stones, jewelry, watches, clocks, or timepieces of any description, (V) trinkets, (c) bills, notes of the governor, and company of the banks of England, Scotland, and Ireland, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or for- eign stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate, or plated articles, glass, (d) china, silks in a manufactured (e) or unmanufactured state, and whether wrought up or not wrought up with other materials, (/) furs, or lace ; or any of them, contained in any parcel or package which shall liave been delivered, either to be carried for hire, or (a) See Hearn v. London R., 10 Exch. 79S, 29 Eng. L. & Eq. 494; Pianciani «. London K., 18 C. B. 226, 36 Eng. L. & Eq. 418. (6) This includes a chronometer for use on shipboard. Le Contenr v. Londoa E., Law Rep., 1 Q. B. 54. (c) As to the meaning of this word, see Bernstein v. Baxendale, 6 C. B. N. s. 251. (rf) See Bernstein v. Baxendale, 6 C. B. n. s. 251. (e) Ibid. (/) See Brunt v. Midland R., 2 H. & C. 889. CHAP. VII.] LIMITATION OP RESPONSIBILITY BY NOTICES. 229 to accompany the person of any passenger in any mail or stage- coach, or other public conveyance, when the value of such article or articles, or property contained in such parcel or package, shall exceed the sum of ten pounds ; unless at the time of the delivery thereof at the office, warehouse, or receiving house of such mail contractor, coach proprietor, or other common carrier, or to his, her, or their bookkeeper, coachman, or other servant, for the pur- pose of b^ing carried, or of accompanying the person of any pas- senger as aforesaid, the value and nature of such article or arti- cles, or property, shall have been declared^ by the person sending or delivering the same, and such increased charge as is herein- after mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. The second sec- tion enacts, that when any parcel or package containing any of the said articles shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage-coach proprietors, and other common carriers, to demand and receive an increased rate of charge, to be notified by some notice affixed in legible characters in some public and conspicuous part of the office, warehouse, or other receiving house, when such parcels or packages are received by them for the purpose of conveyance, stating the increased rates of charge required to be paid, over and ' The following alphabetical list of the above articles may be found useM : Bank-notes. Bills of exchange. Checks on bankers. China. Clocks. Coin (gold or silver) of this country, of a foreign state. Deeds. Engravings. Foreign coins (gold or silver). Furs. Glass. Gold coin, or other gold (manufactured or not), or gold plate, or plated articles. Jewelry. Lace. Maps. Money (coins) or orders, notes, or securities for payment of money. Notes of banks of England, Scotland, or Ireland, or other bank in Great Britain or Ireland, or notes for payment of money. Orders for payment of money. Paintings. Pictures. Plate (gold or silver). Plated articles. Precious stones. Promissory notes. Securities for payment of money. Silks in a manufactured or unmanufactured state, or wrought up or not with other articles. Silver, silver coin, or silver plate, or plated articles. Stamps (English or foreign). Stones (precious). Timepieces of any description. Title-deeds. Trinkets. Watches. Writings. 230 LAW OF CAEBIERS. [CHAP. Vn. above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles ; and all persons sending or delivering parcels or packages containing such valuable articles at such office, shall be bound by such notice, without further proof of the same having come to their knowledge. By the third section, when the value shall have been so declared, and the increased rate of charge' paid, or an engagement to pay the same shall have • been ac- cepted, (a) the person receiving such increased rate of charge, or accepting such agreement, shall, if thereto required, sign a re- ceipt for the package, or parcel, acknowledging the same to have been insured (which receipt shall not be liable to any stamp duty) ; and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the mail con- tractor, stage-coach proprietor, or other common carrier, as afore- said, shall not be entitled to any benefit or advantage under the act ; but shall be liable as at the Common Law, and be liable to refund the increased rate of charge. The fourth section provides that no public . notice or declaration shall limit or in anywise affect the liability at Common Law of any of such mail contract- ors, stage-coach proprietors, or other public common carriers, for or in respect of any goods to be carried and conveyed by them ; but that they shall be liable, as at the Common Law, to answer for the loss of, or injury to, any articles and goods, in respect whereof they may not be entitled to the benefit of the act, any pubhc no- tice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. Section sixth provides that nothing in the act contained shall extend or be con- strued to annul or in anywise affect any special contract between such mail contractor, stage-coach proprietor, or common carrier, and any other parties, for the conveyance of goods. By the seventh section it is enacted that where any parcel or package shall have been delivered at any such office, and the value and contents declared, and the increased rate of charges been paid, and such parcel or package shall have been lost or damaged, the party entitled to recover damages in respect thereof shall also be (a) Under this section, if the shipper of goods declares their nature and value, he is not bound to tender, but the carrier must demand, the increased charge; and if no such demand is made the carrier is liable for a loss, although the increased charge is not made. Behrens v. Great Northern R., 6 H. & N. 366, 7 lb. 950. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 231 entitled to recover back such increased charges in addition to the value of such parcel or package. The eighth section provides that nothing in the act shall protect any .mail contractor, stage- coach proprietor, or other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever, arising from the felonious acts of any coachman, guard, book- keeper, porter, or other servant, in his employ, nor protect any such coachman, guard, bookkeeper, or other servant from liabil- ity for any loss or injury occasioned by his own personal neglect or misconduct. By the ninth section, such mail contractors, stage-coach proprietors, or other common carriers for hire, are not to be concluded as to the value of any such parcel or package by the value so declared as aforesaid, but that he or they shall in all cases be entitled to require from the plaintiff proof of the ac- tual value of the contents by the ordinary legal evidence ; and that the mail contractors, stage-coach proprietors, or other com- mon carriers as aforesaid, shall be liable to such damages only as shall be so proved as aforesaid, not exceeding the declared value, together with the increased charges. § 257. In regard to the general effect of the above act, 1st, it relates solely to carriers by land ; (a) 2dly, it extends to the par- ticular articles enumerated only in case their aggregate value ex- ceeds £ 10 ; 3dly, that it exempts the carrier from his Common- Law responsibility as to such goods (unless the loss arise from the felony of his servants) (&) only in the event of his affixing a public and conspicuous notice in the receiving office, notifying the extra charges for carrying such valuable articles, or in the event of a special contract ; 4thly, that if the notice be affixed, although not seen by the consignor or owner, the carrier is not responsible as to the enumerated description of goods (if the loss do not arise from the felony of his servants), unless the value and nature of the goods be made known, and the increased or insurance rate of charge for carriage, or an agreement to pay it, be accepted by the carrier; but the refusal to give on demand a receipt for the goods and extra charge deprives him of the protection of the act ; (a) Neither the Carrier's Act, 11 Geo. IV. & 1 Will. IV. i;. 68, nor the Rail- way and Canal Act, 17 & 18 Vict. c. 81, applies to carriers by sea. Peninsular Steam Nav. Co. v. Shand, 3 Moore, P. C. n. s. 272. (6) See Metcalfe v. London R., 4 C. B. n. s. 307 ; Great Western R. v. Rimell, 6 C. B. N. s. 916. 232 LAW OF CARRIERS. [CHAP. VH. Stilly, that as to all goods not specifically mentioned in the act, and as to goods of the description therein mentioned, when the value of the latter is not above £ 10, the Common-Law liability remains, although such notice be given, or any public notice or declaration be made or given, by the carrier attempting to vary such liability ; 6thly, that the act does not preclude, the parties from entering into a special contract as to the conveyance of goods of any description or value ; and under the act, the merely giving the public notice, though known to the consignor or owner of the goods, cannot be deemed to constitute a special contract for. this purpose ; and 7thly, it seems that if the loss or injury be occa- sioned by the personal neglect or misconduct of the coachman, guard, bookkeeper, or other servant of the carrier, in a case in which the carrier himself is not responsible, such coachman,, &c., may be sued by the owner of the goods for the consequent dam- age.i (a) ' Chit, on Contr. 493. ' For an analysis of this statute, by Bronson, J., see Hollister v. Nowlen, 19 Wend. 234. As to the special plea, under it, in Boys v. Pink, 8 Car. & P. 361, the declaration stated, that the defendants were common, carriers of goods by a van from Bristol to London, and that they so being such carriers, received from the plaintiff a box containing certain goods, to wit, prints and colored prints to be safely carried by the defendants from Bristol to London, and that the defendants, not regarding their duty, did not convey the goods safely, but, on the contrary, so negligently conducted themselves, that the goods were spoiled. Pleas : first. Not guilty ; and second, a special plea founded on the stat- ute : " And for further plea, the defendants say, that the said prints and colored prints in the said declaration mentioned, at the time of the said delivery thereof (a) A by-law of a railroad company repugnant to an act of Parliament is void. Williams v. Great Western R., 10 Exch. 15, 28 Eng. L. & Eq. 439. The 17 & 18 Vict. c. 31, § 7, makes void all notices, conditions, and declarations, made and givjen by a railway or canal company, unless such as the court or the judge trying the cause may adjudge to be just and reasonable. This has been held to extend to cases where a special contract has been signed in conformity with the subsequent provisions in the statute. Simons v. Great Western R., 18 C. B. 805 ; Peek V. North Staffordshire R., Ellis B. & E. 958, 10 H. L. Cas. 473 ; M'Manus V. Lancashire R., 4 H. & N. 327. This last case was in the Exchequer Cham- ber, and overrules Wise v. Great Western R., 1 H. & N. 63; Pardingtbn ». South Wales R., 1 H. & N. 392. See also Lewis v. Great Western K., 5 H. Se N. 867 ; Beal v. South Devon R., lb. 875 ; Garton v. Bristol R., 1 Best & S. 112 ; M'Cance i'. London R., 7 H. & N. 477 ; In re Baxendale, 11 C. B. n. s. 787 ; In re Baxendale, 12 C. B. n. s. 758 ; In re Palmer, Law Rep. 1 C. P. 588 ; Booth V. Northeastern R., Law Rep., 2 Ex. 1 73 ; Lord v. Midland R., Law Rep., 2 C. P. 339. CHAP. Vn.] LIMITATION OF RESPONSIBILITY BY NOTICES. 233 / § 258. In further considering the subject of notices, it becomes proper to consider the effect of misrepresentation, fraud, and con- cealment of the owner of the goods, in respect to the nature, amount, and value of them. It is plainly the duty of every per- son sending goods by a common carrier, in the absence of notice, not to practice such imposition and deception upon liim as will add to his risk and lessen his requisite care and diligence ; and any false statement or unfair concealment, or material suppres- sion of facts, whereby the carrier is misled, will exempt him from the responsibility of a common carrier.^ (a) " In the absence of notice," says Mr. J. Nelson, " if any means are used to conceal the nature of the article, and thereby the owner avoids paying a reasonable compensation for the rigk, this unfairness, and its con- sequence to the carrier, upon the principles of common justice, to the defendants, were engravings, and that the said delivery in the declaration mentioned, of the said box, containing the said goods and chattels, was a delivery thereof to the defendants as common carriers by land of goods for hire, to a cer- tain servant of the defendants, and at a certain office and receiving house of the defendants, situate at Bristol aforesaid, and that the value of the goods and chat- tels contained in the said box, at the time of the said delivery thereof as afore- said, exceeded the sum of ten pounds, and amounted, to wit, to the said sum of two hundred pounds, in the said declaration mentioned. And the defendants fur- ther say, that at the time of the said delivery of the said box and its contents as aforesaid, for the purpose of their being carried as aforesaid, the value and nature of the said goods and chattels were not declared by the plaintiff or the person sending or delivering the same, nor was such increased charge as is hereinafter mentioned, nor any engagement to pay the same, accepted by the defendants, or either of them, or the person receiving the said box and its contents as aforesaid ; and the defendants further say, that before the time when the said box and its contents aforesaid were so delivered to, and received by, the defendants as such carriers as aforesaid, the defendants had caused to be affixed, in the said office and receiving house, according to the ybrm of the statute in such case made and provided, in legible characters, in a public and conspicuous part of the said office and receiving house, a notice, whereby they, the defendants, stated and notified that certain increased rates of charge, therein mentioned, specified, and stated, were required to be paid, over and above the ordinary rate of carriage, as a com- pensation for the greater trouble and care to be taken for the safe conveyance of a parcel or package containing engravings of a value exceeding ten pounds, and this the defendants are ready to verify." , ' 2 Kent, Com. 603, 604 ; Story on Bailm. § 665 ; Edwards v. Sherratt, 1 East, 604; Batson v. Donovan, 4 B. & Aid. 21; Titchburne v. White, 1 Stra. 145; Eelf V. Rapp, 3 Watts & S. 21. (a) Coxe V. Heisley, 19 Penn. State, 243. 234 LAW OF CAKRIEES. [CHAP. Vn. will exempt him from responsibility ; for such a result is alike due to the carrier, who has received no reward for the risk, and to the party who has been the cause of it, by means of disingeit-t uousness and unfair dealing." ^ § 259. Whenever the owner of a package represents the con- tents of it to the carrier, to be of a particular value, he will not be permitted, in case of a loss, to recover from the carrier, at the most, any amount beyond that value.^ (a) Where a carrier re- ceived two bags of money sealed up, and he was told that they contained £200, and a receipt was given, charging 10s. per cent. for carriage and risk, and the bags of which the carrier was robbed contained ^6400, it was held that the plaintiff could not recover more than £200;^ and it may be doubted whether the defendant would now be considered as liable even to that extent, and whether the whole contract would not be considered as avoided, and rendered a nullity, by the fraudulent representa- tion.* § 260. There is another old case, which turned on the doctrine of unfair representation by the owner of the property,, and which has been often cited by the courts, and is introduced by Story, in his very learned and valuable work on Bailments.^ It was an ac- tion on the case, brought against a country carrier for not deliv- ering a box with goods and money in it. The evidence was, that the plaintiff delivered the box to the carrier's porter, whom he appointed to receive goods for him, and told the porter that there was a book and tobacco in the box, when, in fact, there was JEIOO besides in the box. It was agreed by the counsel, and given m charge to the jury, that if a box, with money in it, be delivered to a carrier, he is bound to answer for it, if he be robbed, although it was not told him what was in it. But Lord Chief Justice RoUe directed the jury, that although the plaintiff did tell * Per Nelson, J., In Orange County Bank v. Brown, 9 Wend. 116. ' Story on' Bailm. § 565 ; and see the authorities cited, ante, to § 258, and Kiley V. Home, 5 Bing. 217. ' Tyly V. Morrice, Carth. 485. ' 2 Stark. Ev. 293 (Eng. ed. 1842) ; Story on Bailm. § 565 ; Harris v. Pack- wood, 3 Taunt. 264; Bull. N. P. 71. See also cases cited in HoUister w.Nowlen, 19 Wend. 234; and Cole v. Goodwin, 19 lb. 251. ' Story on Bailm. § 565 a. (a) M'Cance v. London R., 7 H. & N. 487. GHAP. VII.J LIMITATION OF EESPONSIBILITY BY NOTICES. 235 him of some things in the box only, and not of the money, yet he must answer for it, for he need not tell the carrier all the particu- lars in the box ; but it must come on the carrier's part to make a special acceptance. But, in respect of the intended cheat to the carrier, he told the jury they might consider him in damages ; notwithstanding which, the jury gave £91 against the carrier for the money only (the other things being of no considerable value), abating only £B for carriage.^ There may well be a difficulty in accounting for the finding of the jury in this case.^ § 261. It is well established that the owner of the goods, or the person delivering them, must^ take care not to do or say any- thing which shall tend to mislead the carrier in respect to the requisite care to be taken of them.^ If the owner aldopts a dis- guise for his box, which is calculated to prevent the carrier from taking the particular care of it which the real nature and value of its contents demand, he cannot recover in case of loss, even in the case of gross negligence, beyond the value of the box itself;* as, for example, by labelling a box^ or a trunk, as containing arti- cles of a different nature and inferior value from what are its real contents.^ § 262. The case of Orange County Bank v. Brown, in New York,^ which has been already noticed,'^ is in accordance with the incontrovertible principle that no person has a right, by practis- ing concealment or fraud, to impose a duty upon another, which he would not, if acting advisedly, have undertaken. That was a case in which a traveller's trunk contained 111,250, and the plaintiff sought to recover it as a part of the baggage lost. The ' Kenrig v. Eggleston, Aleyn, 93. ' The reporter has added, " quod durum videbatur circumstanixhus." The re- mark of the reporter, says Story (Bailm. § 566 a), " seems well founded ; and it IS difficult to account for the verdict of the jury, unless upon the supposition, that they were of opinion that there was some fi'aud in the carrier." Lord Mansfield,, speaking of the reporter's note, said upon one occasion : " Now I own, that I should have thought this a fraud, and I should have agreed in opinion with the eircumtantibus." Gibbon v. Paynton, 4 Burr. 2301. ' 2 Kent, Com. 602-604. See also HoUister u. Nowlen, 19 Wend. 234; and Cole v. Goodwin, 19 Ib.-251. ' Bradley v. Waterhouse, 1 Moody & M. 154 ; and see Story on Bailm. § 77. ' Eelf V. Rapp, 3 Watts & S. 21. ' Orange County Bankw. Brown, 9 Wend. 85, recognized in Hawkins v. HoflF- man, 6 Hill, .586. ' Ante, § 115. 236 . LAW OF CAKKIEES. [CHAP. VII. court held that it did not fall within the commonly received im- port of the term " baggage " ; and that an attempt to have it car- ried free of reward, under cover of " baggage," was an imposition upon the carrier ; that he was thereby deprived of his just com- pensation, besides being subjected to unknown hazards. Tlie principle of this case was applied in the case of Pardee v. Drew, in the same State,' in which it was held that a carrier was not lia- ble for the loss of a trunk which contained valuable merchandise, and nothing else. The court, by Nelson, J., would not say that the plaintiff intended to impose upon the defendant, and under the cover of " baggage," to obtain the transportation of merchan- dise free of expense, for that was not material ; it was sufficient that that was the practical effect of his conduct, and that neither the captain of the steamboat nor any of the hands on board could have suspected that it was a box of costly merchandise, requiring extraordinary attention and care ; the defendant was doubly wronged: first, deprived of his just reward for carrying the goods ; and second, prevented from exercising proper precaution against the dangers to which the property may be exposed, (a) § 263. Not unlike in principle from the two cases cited in the preceding section is the case of Miles v. Cattle.^ In this case, the plaintiff, a passenger by the defendants' coach, having received a parcel of value from a friend, to be booked and conveyed by the same coach, instead of doing as directed, he placed it in his own bag, which was subsequently lost ; being a wrong-doer towards the defendants, the loss was held to be imputable to his own misfeas- ance, and he could not sue them for the value. § 264. Where there is no notice, if there are no improper means or artifice adopted by the person who sends the goods, to conceal the nature and value of the contents of the box, parcel, or package, to mislead or deceive the carrier, the person sending the goods is not bound to make the disclosure unless inquiry is made of him on the subject ; although the carrier has the right to make the inquiry, and to have a true answer, and if a false an- ' Pardee v. Drew, 25 Wend. 85. ' Miles V. Cattle, 6 Bing. 743, and cited ante, § 41. (o) In Richards v. Westcott, 7 Bosw. 6, an ordinary travelling-trunk was deliv- ered to an expressman to be carried to a passenger depot. The trunk contained jewelry. Held, the carrier was not liable, even though the owner practised no intentional fraud. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICKS. 237 swer is given, he will not be responsible.^ In Walker v. Jackson, decided in 1842, in the English Court of Exchequer ,2 Baron Parke says : " I take it now to be perfectly well understood, according to the majority of opinions upon the subject, that if anything is delivered to a person to be carried, it is the duty of the person re- ceiving it to ask such questions about it as may be necessary ; if he ask no questions, and there be no fraud to give the case a false complexion, on the delivery of the parcel, he is bound to carry the parcel as it is. It is the duty of the person who receives it to ask questions ; if they are answered improperly, so as to deceive him, then there is no contract between the parties ; it is a ground which vitiates the contract altogether." ^ Mr. J. Nelson, in giv- ing the opinion of the court, in Orange County Bank v. Brown, in New York,* says : " As a general rule, when there has been no qualified acceptance of the goods by special agreement, or where an agreement is not to be inferred from notice, the carrier is bound to make the inquiry as to the value of the box or the arti- cle delivered to him; and the owner must answer at his peril; and if such inquiries are not made, and it is received for such price for transportation as is asked, with reference to its bulk, weight, or external appearance, the carrier is responsible for tl],e loss, whatever may be its value." ^ ' Opinion of Chancellor Walworth, in SewaJl v. Allen, 6 Wend. 349 ; HoUis- ter V. Nowlen, 19 lb. 234 ; Cole v. Goodwin, 19 lb. 251 ; Phillips v. Earle, 8 Pick. 182; 2 Kent, Com. 603, 604; Story on Bailm. § 567; Brooke i>. Pickwick, 4 Bihg. 218 ; Sleat v. Fagg, 5 B. & Aid. 342 ; Batson v. Donovan, 4 lb. 21. ' Walker 0. Jackson, 10 M. &. W. 168. ' In this case, it appeared that the plaintiff went on board the defendant's steamboat, with his horse and carriage, paying the defendant's charge of a light four-wheeled phaeton ; that jewelry and watches of great value, which much in- creased its weight, were contained in a box under the seat ; and that he made no communication of that fact to the defendant. The carriage was taken safely across the river, and on the arrival of the boat at the pier head at Liverpool, two of the defendant's servants put the carriage out upon the slip, towards the quay, but in doing so were overpowered by its weight, and it ran down into the river, whereby the jewelry and watches were much injured : it was held, that the plaintiff's right of action for this injury was not affected by his not having communicated the fact of the jewelry and watches being contained in the carriage. ' Orange County Bank v. Brown, 9 Wend. 115. " And see the case referred to, ante, §§ 115, 262 ; and see also Hawkins v. Hoff- man, 6 Hill, 586. Lord Mansfield, in Gibbon v. Paynton, does not deny that mere silence as to the amount may in general be honest. 4 Burr. 2298. 238 LAW OF CARRIERS. [CHAP. VH. § 265. But it is not competent to the carrier, in an action against him for negligence, to set up as a defence, under a plea of not guilty, that the owner of the goods misrepresented them; the plea operating only as a denial of the loss or damage, and not of the receipt of the goods by the carrier, who ought either to plead the misrepresentation specially, or traverse the acceptance of the goods for the purpose of being carried.^ (a) § 266. It is said that it was to obviate the inconvenience of ask- ing questions in every case, and the difficulty of proving the state- ments made on each occasion, that common carriers in England resorted to the expedient of a general notice, that they would not be liable for the loss of money and valuables unless they were in- formed of their existence ; nor for the loss of ordinary goods and chattels beyond a certain amount, unless the value of such goods was declared and entered at the office, and an increased rate of remuneration paid for their conveyance,^ But there has been some question as to whether the carrier is not bound to inquire, although he has given notice.* The case of Gibbon v. Paynton* was among the earliest, if not the very first, of the cases in which a carrier's notice appears.^ The defendants in this case had advertised that their coachman would not be answerable for money or jewels, or other valuable goods, unless he had notice that such were delivered to him ; and it was probable that the plaintiif knew of the notice, and understood that by the course of trade, money was not carried without an extra premium. Yet the plaintiff delivered to the coachman £100, hid in hay in an old nail bag: (6) The bag and the hay were carried safely, but the money was lost. It was held, the plaintiff could not recover. Lord Mansfield proceeded entirely independent of the notice; but » Webb V. Page, 6 Scott, N. R. 951, 6 Man. & G. 196. = Add. on Contr. 814 ; Jordan v. Fall River R, 5 Cush. 69. ' Story on Bailin. § 568. * Gibbon V. Paynton, 4 Burr. 2298. 5 9 Geo. III. Easter Term, 1769. (a) Where an article is delivered to a common carrier for transportation, he must exercise his own judgment as to the mode of carrying it, and cannot escape liability by proving misrepresentations, unless they relate to mattei's latent in their character. New Jersey R. v. Pennsylvania R., 3 Dutch. 100. (b) See also Chicago R. v. Thompson, 19 111. 578; Richards v. Westcott, 2 Bosw. 589 ; Belfast R. v. Keys, 9 H. L. Cas. 556. CHAP. VII.] LIMITATION OF KESPONSIBILITY BY NOTICES. 239 Yates, J., considered the notice equivalSnt to a special accept- ance, and Aston, J., hinted at the same ground. The judges in the case of Batson v. Donovan,^ with the exception of Best, C. J., held that the effect of the notice is to prevent the necessity of a .particular inquiry in eacli case; and that, in cases of notices, the party who sends the goods, without payment for the extraordinary value, holds them out impliedly as articles of ordinary value ; and under such circumstances the contract itself becomes a nul- lity.^ But Mr. J. Best was of opinion that when there is notice the carrier is Bound to inquire, and held that the owner of the :goods is not hound to disclose their value unless asked ; and to this opinion he has steadily adhered,^ and so strenuously, that in one case,* he said he must continue to retain his opinion till the twelve judges decided he was wrong.^ In Orange County Bank V. Brown,^ the court, by Nelson, J., hold that in case of notice the carrier is not bound to make the inquiry, and that if the owner omits to make known the value, and does not therefore pay the premium at the time of the delivery, " it is considered as dealing unfairly with the carrier, and he is not liable to the amount mentioned in his notice, or not at all, according to the terms of the notice." '^ § 267. As the carrier may set up fraud and imposition on the part of the person sending the goods, the latter, although the former is protected by a general notice, may charge and prove negligence in the former ; so that, in effect, proof of negligence is an answer to proof of notice.^ " If the carrier should per- chance refuse to carry the goods unless promise were made unto him thJt he should not be charged for any misdemeanor that should be in him, the promise were void ; for it were against .' Batson v. Donovan, 4 B. & Aid. 21. = See Story on Bailm. § 568. = Sleat V. Fagg, 5 B. & Aid. 342. * Brooke v. Pickwick, 4 Bing. 218; Butt v. Great "Western K., 11 C..B. 140, 7 Erg. L. & Eq. 443. ' See also Garnett v. Willan, 5 B. & Aid. 53; Kiley v. Home, 5 Bing. 217; Bignold i). Waterhouse, 1 Maule & S. 255. ' Orange County Bank v. Brown, 9 Wend. 115. ' But see HoUister v. Nowlen, 19 Wend. 234 ; Cole v. Goodwin, lb. 251 ; Sager V. Portsmouth E., 31 Maine, 228 ; Davidson v. Graham, 2 Ohio State, 131 ; Penn- sylvania R.. V. MeCloskey, 23 Penn. State, 526 ; Dorr v. N. Haven Nav. Co., 4 Sandf. 136. , ° See ante, § 239 a, el seq. ; 2 Stark. Ev. 291. 240 LAW OF CAEKIEES. [CHAP. VD. reason, and against good manners."^ It cannot, therefoFe,r;be supposed, that the person sending goods, and the carrier who is to convey them, intended to enter into a contract for tlie letting and hiring of labor and care,^ and agreed, at the same time, to dispense with the exercise of such labor and care. " It is im- possible," according to Lord EUeuborough, " without outraging common sense, so to construe the notice as to make the carrier say, ' We will receive your goods, but will not be bound to take any care of them, and will not be answerable at all for any loss occasioned by our own misconduct, be it ever so gross and inju- rious.' "^ In Newborn v. Just,* it was affirmed by Best, C. J.; " It has been decided over and over again, that notice does not protect a carrier against negligence." A notice, therefore, ap- plies only to the responsibility of the carrier as an Insurer, and does not exempt him from the consequences of his own negli- gence, or from the negligence of his servants and agents. Neither by public notice seen and read by his employer, nor even by special agreement, can the carrier exonerate himself from the consequences of gross neglect.^ (a) § 268. What constitutes gross neglect or gross negligence, in these and other cases, and whether there is any real distinction ' Doct. & Stud. Dial. 2, c. 49 ; Noy's Max. c. 43, 92, Best, C. J. ; Newborn ». Just, 2 Car. & P. 76. 2 See ante, § 1. " Lyon V. Mells, 5 East, 438. It is evident that one contracting party cannot impose a condition upon the other, going to the destruction of the thing granted^ ■when, by the well-known rule, the thing granted passes freed fiom the condition. Tindal, C. J., Lucas v. Goodwin, 4 Scott, 509. • « Newborn v. Just, 2 Car. & P. 76. » HoUister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 lb. 251 ; New Jer- sey Steam Nav. Co. v. Merchants' Bank, 6 How. 344 ; Riley v. Home, 5 Bing. 217; AVyld v. Pickford, 8 M. & W. 461 ; Hinton v. Dibbin, 2 Q. B. 646; Cam- den K. 0. Burke, 13 Wend. 611 ; Swindler v. Hilliard, 2 Rich. 286; Boyle «. M'Laughlin, 4 Harris & J. 291 ; Bean v. Green, 12 Maine, 422. Notice, clearly, would not screen the defendants from loss occasioned by their negligence or want of ordinary care. Per Hubbard, J., in Thomas v. Boston R., 10 Met. 480. (a) Pennsylvania R. Co. u. McCloskey, 23 Penn. State, 526 ; Powell v. Penn- sylvania R., 32 Penn. State, 414 ; Hibler v. McCartney, 31 Ala. 501 ; Smith u. New York Central R., 29 Barb. 132; Ashmore u. Penn. Steam Towing Ca, 4 Dutch. 180; Boswell v. Hudson River R., 5 Bosw. 699; Welsh ii. Pittsburg R, 10 Ohio State, 65. CHAP. VII.J LIMITATION OF RESPONSIBILITY BY NOTICES. 241 b'etween negligence and gross negligence, as we have already shown, has been a matter of judicial doubt ; and that the distinc- tion could not, with precision, be stated.^ In Wyld v. Pickford,^ Mr. Baron Parke says : " The weight of authority seems to be in favor of the doctrine, that, in order to render a carrier liable after notice, it is not necessary to prove an abandonment of that char- acter, or an act of wilful misconduct, but that it is enough to prove an act of ordinary negligence. Again, " he (the carrier, nbtwithstanding the notice) undertakes to carry from one place to another, and for some reward in respect of the carriage, and is, therefore, bound to use ordinary care in the custody of the goods." This case has been considered as putting at rest any further question on the subject, it being entirely satisfactory in its reasoning ; so that, in cases of notices, the carrier is liable for losses and injuries occasioned not only by gross negligence, but by ordinary negligence.^ Therefore, as there has been occasion before to observe, in cases and by means of notices, common car- riers descend only to the situation of private carriers for hire.* There has also been occasion before to show, that in most cases the question of ordinary negligence is more a question of fact to be determined by a jury, than of law.^ It may be repeated, that, if the want of fair dealing, by an improper concealment of the nature and value of the goods, has been the cause of negligence in the carrier, of which he would otherwise have not been guilty, the person sending the goods cannot complain of the consequences of his own act.^ § 269. The carrier will also be liable, although protected by a notice, if the loss has happened in consequence of his misfea- sance, the difference between which and negligence has already been explained ; and it appeared, that the first is in direct con- travention of the carrier's contract, by which its performance is ' See ante, §§ 22, 23, et seq. ' Wyld V. Pickford, 8 M. & W. 461. ' Story on Bailm. § 571. See also the opinion of Lord Denman, in Hinton v. Dibbin, 2 Q. B. 646. ' Ante, § 54, et seq.; and see the subject of ordinary negligence treated at large, ante, Ch. HI. As to what was sufficient negligence to render the owners of the steamboat Lexington liable, under a special contract, see the New Jersey Steam Nav. Co. V. Merchants' Bank, 6 How. 344. " Ante, § 51, and sections following. See also post, § 559. ' Ante, § 258, et seq. 16 242 LAW OF CABRIEES. [CHAP. Vn, prevented, and that the later takes place in the course of perform- ing the contract.! If the carrier takes the goods beyond the place of destination, and they are lost, he is responsible, although otherwise his notice would protect him ; because in so doing he has committed a misfeasance.^ Of this description of misfea- sance is the case of Ellis v. Turner.^ A vessel belonging to the defendant, and plying from Hull to Gainsborough, took on board some goods of the plaintiff, to be delivered at Stockwith. It went safe as far as Stockwith, and there delivered a part of the, cargo, but not the goods in question ; and, in proceeding on her voyage, sunk before she arrived at Gainsborough., The defendants had published a notice, protecting themselves from the want of care in the master or crew ; but they were, notwithstanding, made accountable for this, misfeasance of their servant, the master of the vessel, in not delivering the goods at Stockwith in safety, when he might have done so. § 270. In like manner it will be a misfeasance . to deliver the goods to the wrong person, as well as it is at the wrong time and place.* If the delivery be by the carrier to the wrong person, although it may have been innocently made by mistake, or by, his being imposed upon, he will be liable to the owner of the goods, for the full value of them, which are thus lost. Such a wrong- ful delivery is a misfeasance, and indeed a conversion of tlje, property.^ (a) § 271. In like manner, also, if the goods are sent by a different; conveyance from that implied in the undertaking, or in a different manner, and they are lost, the carrier will be liable for the mis- feasance, although otherwise he would be exonerated from thei loss by the terms of a notice. In Garnett v. Willjan,® such an act ' Ante, § 12; Austin v. Manchester, &c. Sailwa^r Co., 10 C. B. 454, 11 Eng. L. & Eq. 506 ; Whitesides v. Thurlkill, 12 Smedes & M. 599. » Story on Bailm. § 661. = Ellis V. Turner, 8 T. R. 531. * Story on Bailm. § 545 6. ' Stephenson v. Hart, 4 Bing. 476; Duff v. Budd, 3 Brod. & B. 177; Youli). Harbottle, Peake, 68 ; Devereux v. Barclay, 2 B. & Aid. 702 ; Stephens ». El- well, 4 Maule & S. 259 ; Powell v. Myers, 26 Wend. 591. " Garnett v. Willan, 5 B. & Aid. 53 ; and see Glover v. North Staffordshire R, 16 Q. B. 912, 5 Eng. L. & Eq. 385. (a) See Crouch v. Great Northern R, 11 Exch. 742, 34 Eng. L. &Eq. 573, 685. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 243 of misfeasance annulled the notice. The defendants, Jones & Willan, had accepted a parcel, booked to be sent by their coach from London to "Worcester ; it was carried, conformably to their contract, a part of the way, and then forwarded on by another coach, in which Jones had no interest, and was ultimately lost. It was held, that the plaintiffs having contracted for the care and attention of both Willan and Jones, had had the care and atten- tion of one only ; so that they had not obtained that for which they contracted, by the wrongful acts of the defendants ; and this being in direct contravention of their contract, they were made responsible for the whole loss, notwithstanding the notice. An- other decision upon this point is that in Sleat v. Fagg.^ The defendants, in this case, having published the usual notice, re- ceived a parcel of considerable value, and contracted to send it by the mail ; no insurance was made thereon, or intimation given of its value ; it was sent by another coach and lost. The court held, that if the defendant had forwarded the parcel by the mail, in pursuance of his contract, he would not have been liable for the loss ; but as he had acted in direct contravention of it,' it was a misfeasance, and against that the notice was no pro- tection. § 272. The above case of Sleat v. Pagg is so similar in its facts to Batson v. Donovan,^ and yet so opposite in its decision, that it is proper to compare the two determinations. In each of them the bailment was precisely the same ; in each there was proof of the publication of the notices, of the value of the goods, of the concealment of that value, and of their loss. In the last case, the defendant was protected by his notice ; in the first-named ease he was held responsible for the goods. In the former case, the loss proceeded from the negligence of the defendant ; in the latter, from his misfeasance ; and, as the concealment of the value, which was the plaintiffs fault, had caused the negligent perform- ance of the contract, he was barred from complaining of that which was the consequence of his own act ; but such a conceal- ment could never cause a misfeasance, that is, a non-performance of the contract, and therefore, in that case, he is entitled to main- tain his action. The principle on which the decisions in these ' Sleat V. Fagg, 5 B. & Aid. 342. ' ' Batson v. Donovan, 4 B. & Aid. 21. 244 LAW OF CAKKIEES. [CHAP. VU. cases proceeded is perfectly intelligible, so long as misfeasance and negligence are not confounded with each other.^ § 273. The carrier commits an act of misfeasance if he disre- gards public regulations established by law for the navigation of a canal ; and consequently damage, sustained by bilging in a lock which was entered by him in contravention of those regulations, must be compensated by him. The damage done by bilging would have been avoided had the carrier's canal-boat been where it ought by the law of the canal to have been.^ § 274. In like manner and on the same principle a common carrier iindertaking to transport by water is not protected by his notice, if he does not employ a vessel reasonably stout, strong, and well equipped for the voyage ; for the existence of the common notice will not in any respect change this implied duty.^ Neither will it change the implied duty of a common carrier to guard against a defect in the vehicle or machinery used for the trans- portation ; for there is a breach of the implied warranty in such cases, that the vehicle and machinery shall be in good order and condition, and suited to the nature of the business and employ- ment. Indeed, if they are not in such condition, and the carrier might, by exercising proper diligence, have ascertained it, it will amount to negligence.^ Still further, it has been held, that if the defect in the vehicle or machinery is unknown to the carrier, and is not discoverable on inspection, and the loss happens without any culpable negligence on the part of the carrier or his agents, and there is a notice that " all baggage is at the risk of the owner," the carrier will, notwithstanding, be liable for any loss occasioned to the baggage by the defect of the vehicle or machin- ery.^ But still it seems by an old case that those means would be deemed sufficient, which, without any extraordinary accident, will probably perform the voyage or the journey.* It is the duty of common carriers on Lake Champlain to provide boats which shall ' See Jones on Cair. 29. 2 Atwood V. Reliance Trans. Co., 9 Watts, 87. ' See as to seaworthiness, ante, § 173 ; Story on Bailm. § 562 ; Lyon v. Mells, 5 East, 428 ; Clark v. Richards, 1 Conn. 54. * Story on Bailm. § 571 a (edit. 1846). Carriers by land must have good ve- hicles, and -well-broke horses. M'Kinney v. Niel, 1 M'Lean, 450. 5 Camden R. v. Burke, 13 Wend. 611 ; Story on Bailm. § 571 a; and see the case of the unknown and undisooverable defect in a rudder, ante, § 171. ' Amies u. Stevens, 1 Stra. 128, CHAP. Vn.] LIMITATION OF RESPONSIBILITY BY NOTICES. 245 be safe and seaworthy for the season of the year at which goods are shipped.? § 265. The utmost effect, then, that can be given to a general notice, or special contract, both in England (a) and in this coun- try, although as broad and absolute in its terms as it can be, will not discharge a common carrier from liability for negligence, mis- feasance, or want of ordinary care, either in the 'seaworthiness of the vessel, or her proper equipments and furniture ; nor is it al- lowed to exempt the carrier from accountability for losses occa- sioned by a defect in the vehicle or mode of conveyance used in the transportation.^ § 276. It has been shown that the burden of proof is on the carrier to show a knowledge of his notice in the person sending the'goods ; ^ but when that is made fully to appear, the burden of proof is then on the person sending the goods to show negligence, &o. in the carrier ; which is contrary to the general rule in cases of common carriers, where there is no notice;* for, primd facie, the burden of proof is on a common carrier to exempt himself from liability.^ § 277. The question was presented by the pleadings for decision in Hinton v. Dibbin,^ whether, since the passing of the act of 11 Geo. 4 & 1 Wm. 4,^ a carrier is liable for the loss of goods there- ' Day !). Ridley, 16 ¥1.48. ' See the opinion of Nelson, J., in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. " Ante, § 247. * Ante, § 282 ; Story on Bailm. § 573 ; and see ante, Chap. III. § 61. ' See Story on Bailm. § 929. ' Hinton v: Dibbin, 2 Q. B. 646. By the Common Law, the servants of the carrier ai'e not liable in any way ex contractu to the owner of the goods for loss or damage arising from their own personal negligence. Cavenagh v. Such, 1 Price, 328 ; Williams v. Cranston, 2 Stark. 82 ; Hyde v. Trent Navigation Co., 5 T. K. 397. ' Ante, § 256. (o) In England, the carrier might, before the Carrier Act of 1854, limit his liability to any extent, and provide by special contract against liability for his own gross negligence or that of his servants. Carr v. Lancashire B,., 7 Exch. 704; Austin v. Manchester R., 10 C. B. 454; Great Northern R. v. Morville, 21 Law J., N. s., Q. B. 319; York R. v. Crisp, 14 C. B. 527; Hughes v. Great Western R., 14 C. B. 637 ; Slim v. Great Northern R., lb. 647 ; Chippendale v. Lancashire R., 21 Law J., n. s., Q. B. 22; Austin v. Manchester R., 16 Q. B. 600; Shaw v. York R., 13 Q. B. 347. 246 LAW OP CAERIEES. [CHAP. VH in specified, by reason of gross negligence ; and the decision of the Court in Queen's Bench was, that under the act, if a parcel containing any of the valuable goods enumerated in Sect. 1 be sent to a carrier for conveyance without a declaration of the na- ture and value of such goods, and without paying, or engaging to pay, an increased charge, according to Sect. 2,, the carrier is not liable for their loss, though it happens by the gross negligence of his servants. Lord Chief Justice Denman, who delivered the judgment of the court, said : " By Sect. 8 it is enacted, that noth- ing in this act shall be deemed to protect such carrier from the felonious acts of any servant in his employ, nor to protect such servant from liability for any loss or injury by his own personal neglect or misconduct. The former branch of the clause is, to say no more, at least consistent with the supposition, that for conduct shorfof felony the carrier is no longer liable ; whereas it is obvi- ous that, before the passing of the act, the carrier would have beai liable for acts of the servant not amounting or approaching to fel- ony, — negligence. The latter branch seems to have been intro- duced ex abundanti cauteld, merely, seeing that there is nothing in any part of the act to vary the liability of the servant to the master for any misconduct of the former."^ (o) ^ See the Keport of Officers of Railway Department of Board of Trade in Eng- land (1842, p. xix.), whicli contains the following remarks: — ■ " The Carriers' Act distinctly provides, that no general notice shall limit the liability of common carriers with regard to objects other than those enumerated in the act, and the proper rule appears to be, that although railway companies may refuse to take charge of passengers' luggage, unless such reasonable regflla- tions as they find necessary are complied with, yet, that if they do take charge of such luggage they incur the ordinary Common-Law liability of carriers, subject only to the limitation of the Carriers' Act. " The same principles apply to regulations limiting the company's Kahility as regards carriages and horses. This is sometimes done by refusing to carry horses or carriages unless the owner will sign a special agreement, exempting the com- pany from all liability. This is clearly illegal as regards the general liability, railway companies being bound, like other carriers, by the Common Law, to un- dertake the carriage of all articles offered to them, unless there is some reason- able ground for refusal, and it is only allowable to the extent of guarding against any extraordinary risk arising from the nature or value of the object, unless a proper insurance is paid. In the case of carriages it is generally admitted that there is no ground for charging any insurance ; but in the case of horses, it ap- pears fair that the company should not be responsible for accidents arising from (a) Great Northern R. Co. v. Rimell, 18 C. B. 575, 37 Eng. L. & Eq. 245. CHAP. VII.] LIMITATION OF RESPONSIBILITY BY NOTICES. 247 §278. There may be a wa«J)er of notice.^ Bayley, J., in Helsby V. Mears,^ entertained no doubt that a common carrier, notwith- standing he has limited his responsibility by a notice that he will not be answerable for goods of more than a certain value, may be bound by a special contract made with any individual, which is contrary to the terms of the notice ; and in this opinion both Hol- the viciousness or restiveness of the animal, and that they should not be respon- sible for more than a fair average value, unless the horse has been entered as of extraordinary value, and a reasonable insurance paid." That a company would not be liable for accidents to horses, arising from the animal's own viciousness, &c., see ante, § 214 a. The ■ report goes on to remark in a subsequent part, p. xx., that " in two in- stances representations had been made to the department of the Board of Trade, to the effect that railway companies were in the habit of enforcing an illegal reg- ulation, requiring parties who sent carriages or horses by the railway, to sign a special agreement exempting the company from all liability for loss, however oc- casioned. Letters were written to companies pointing out the illegality of such a course, excepting so far as might be necessary to protect themselves against ex- •traordinary risk, arising from the nature or value of the object, and the result was, that the regulation as regarded carriages was entirely withdrawn, and as re- garded horses modified in conformity with principles above stated." In the case of Shaw v. York R., 13 Q. B. 347, the declaration in case stated that defendants were proprietors of the Y. and N. M. Railway, and of certain carriages for the conveyance of passengers, cattle, and goods and chattels upon the said railway for hire ; that they received nine horses of the plaintiff, to be safely an3 securely carried in the carriages of the defendants by the railway for hire ; and that, therefore, it was the duty of the defendants safely and se- curely to carry and convey and deliver the horses of the plaintiff; and then averred the loss of one by reason of the insufficiency of one of the carriages. It appeared, that when the horses were received a ticket was given to the plaintiff, stating the amount paid by the plaintiff for the carriage of the horses, and the journey they were to go, and having at the bottom the following memorandum : "N. B. This ticket is issued subject to the owner's undertaking all risks of con- veyance whatsoever, as the compzlrty will not be responsible for any injury or flimage, however caused, occurring to horses or carriages while travelling, or in loading or unloading." It was held that the terms contained in the ticket formed a part of the contract for the carriage of the horses ; and that the alleged duty of the defendants safely and securely to carry and convey the horses did not arise upon that contract. But Lord C. J. Denman, in giving judgment, said: " It may be that, notwithstanding the terms of the contract, the plaintiff might have al- leged that it was the duty of the defendants to ha've furnished proper and suf- fident carriages, and that the loss happened from a breach of that duty ; but the plaintiff has not so declared, but has alleged a duty which does not arise upon the contract, as it appeared in evidence." See post, §§ 436-451. ' Jeremy on Carr. 48 ; Story on Bailin. § 572. * Helsby v. Mears, 5 B. & C. 504. 248 LAW OF OARBIEES. [CHAP. VII. royd, J., and Littledale, J., concurred. And it was held in this case that an express agreement to carry a package of extraordi- nary value for the common hire will be a waiver of the notice, even if made by one partner only, if it be within the scope of his authority .1 So also if made by the agent or servant of the carrier. If, before sending goods by a carrier, the sender applies at his wharf to know at what price certain goods will be carried, and he is told, by a clerk transacting the business there, a certain sum per cent, and on the faith of this he sends the goods, the carrier can- not charge more, although it be proved that the carrier had pre- viously ordered his clerk to charge all goods according to a printed book of rates, in -which a greater sum is set down for goods 'of the sort in question.^ Again, in the case of the Grand Junction Rail- way Company,^ which has been before referred to,* who publishejl a printed notice, which was affixed over the door of their station, to the effect that all goods received after four o'clock, P. M., would not be forwarded until the next working-day ; notwith- standing this notice, inasmuch as the company was in the habit of forwarding goods for the plaintiff delivered at the station after four o'clock, and the company's weigher, on a particular evening, told a servant of the plaintiff who brought goods to the station after the hour limited by the notice, that there was then " plenty of time," and the goods were left upon the faith of this assurance; it was held, that there was evidence to go to a jury of a special contract on the part of the railway company to forward the goods (which were perishable) the same evening. § 279. It appears at one period to have been thought that the mere receipt of goods whose value was manifestly beyond the sum in the notice, without any extra payment therefor, was a waiver of the notice.^ But the later doctrine seems to exclude any pre- sumption founded merely upon the knowledge of the fact above stated, and requires some auxiliary circumstance to support it.^ • See ante, § 69. If the carrier is told what is the value of the goods, and he is directed to charge what he pleases, and he chooses to charge only the ordinary hire, it is a waiver of the notice as to the goods. Evans v. Soule, 2 Maule & S. 1 ; Wilson v. Freeman, 3 Camp. 527. = Winkfield v. Packington, 2 Car. & P. 599. " Pickford v. Grand Junction R., 12 M. & W. 766. * Ante, § 136. " Beck V. Evans, 16 East, 244, 3 Camp. 267. » Story on Bailm. § 572, citing Marsh v. Home, 5 B. & C. 322. See on(e, § 231. CHAP. VIII.J DELIVEEY BY. 249 CHAPTER VIII. OF THE TERMINATION OF THE CARRIER'S RESPONSIBILITY, BY DELIV- ERY, AND WHAT EXCUSES A NON-DELIVERY. § 280. Having considered the duty of a common carrier to re- ceive goods for conveyance, and having endeavored to show when, in the sense of the law, they are delivered to him, and that, with the delivery to him, his extraordinary responsibility commences, and having also endeavored to show the extent of that responsi- bility, as imposed by the Common Law, and as it may be limited, modified, or varied by special agreement and by general notices, the subject which next claims attention is that of the delivery of goods by the carrier, by which his duties and responsibilities are terminated. It is, therefore, proposed now to consider, 1st, the obligation properly to deliver ; and 2dly, what will excuse a non- delivery. § 281. First. It has been shown to be an implied engagement on the part of every undertaker of the work of carrying as a com- mon carrier, to proceed without deviation from the usual and ordinary course, to the place of delivery,^ (a) or the port of desti- nation ; ^ and also to be the duty of the carrier, if the goods he receives for conveyance are directed to a place beyond the place to which he ordinarily professes to carry, to see that they are deliv- ered at the place to which they are directed.^ (&) It has been shown likewise, that if, by the terms of the bill of lading, the carrier has the privilege of re-shipping the goods in the course of transportation, he is bound for their safe delivery at the place of their ultimate destination.* But if a carrier is instructed by his ' Ante, § 164. = ^„(g^ g 175^ g^ jgj_ ' Ante, § 95 et seq. ; Burritt v. Rench, 4 McLean, 325 ; Smith v. Nashua K., 7 Poster, 86. ' Ante, § 227. (a) In London E. v. Bartlett, 7 H. & N. 400, it is held, that a carrier who has contracted with the consignor to deliver goods at a particular place is not liable to him if he delivers the goods elsewhere, at the request of the consignee. (b) Michigan K. v. Day, 20 111. 375. 250 LAW OF CAEKIERS. [CHAP. Vm. employer to deliver goods on board of another vessel for a cbntin- uance of the transportion and the goods are lost on board such other vessel, he is not responsible if he has safely placed them on board such other vessel, as, by so doing, his character, as-common carrier, has ceased.^ Thus, common carriers who received goods to transport from New York to Troy, and, at the latter place, transferred them pursucmt to instructions from the bailor on board a canal-boat bound for the north, and the goods were lost by the upsetting of the boat, it was held that their character, as common carriers, ceased at Troy ; and that having taken proper care that the goods were safely put on board the canal-boat they were not responsible for the loss.^ (as) § 282, The undertaking of a common carrier to transport the goods to a particular destination necessarily includes the duty of delivering them in safety; (6) and his obligation is. to deliver safely at all events, excepting the goods be lost by the act of God, or the public enemy. It is not enough that the goods be carried in safety to the place of delivery, but the carrier must, and with- out any demand upon him, deliver; and he is not entitled, to • Abbott on Shipp. 465 (5th Am. edit.) ; Strong v. Natally, 4 Bos. &. P. 16. ' Ackley v. Kellogg, 8 Cow. 223. Where the master of a vessel is directed to transship or deliver on board another vessel, a delivery on board such other ves- sel is the termination of the duty of a common carrier. The master, at the end of the tKinsit, is only a foriiiarder. Van SantvoOrd v. St. John, 6 Hill, 158, -reversing the decision of the Supreme Court of New York, in 25 Wend. 661, and ante, § 95. As to forwarding merchants, see ante, § 75. (a) Wright v. Boughton, 22 Barb. 561 ; Hempstead v. New Tork Central K., 28 Barb. 485. See also ante, § 97. In the case of The Convoy's Wheat, S Wall. 225, wheat was shipped at Chicago, to be delivered by the terms of the bill of lading " as per margin." On the margin was written : " Acct. Carrington & Preston, Oswego, N. Y., via Welland Railway, from Port Colbourne to Port Dal- housie, thence by sail or steam to Oswego. Freight to Port Colbourne eight and one half cents per bushel." The vessel only went as far as Port Colbourne, and tendered the wheat there to the agent of the Welland Railroad. He refused to receive it until the vessels that had arrived previously had unloaded. There was but one elevator there, and all wheat had to go through it. The master, without notifying the consignees, then went to Buffalo and libelled the wheat for freight and demurrage. Held, that the course of trade required the vessel to wait, and that the master must be held to have made his contract with full knowledge of the course of trade, that he had no right to take the cargo to Buffalo, that he should have telegraphed the consignees from Port Colbourne, and that he was not entitled to his freight. (6) See Chicago R. v. Warren, 16 HI. 602. mAP. VIII.] DELIVERY BY. 251 freight until the contract for a complete delivery is performed.^ Hence it has been held that if a common carrier on a canal uses the tackle or machinery of a third person in hoisting the goods from his boat, and the machinery breaks, and the goods are there- by injured, he is responsible for the damage ; for, although the machinery does not belong to him, it is his pro hac vice, and so as to render him answerable for its sufficiency.^ But if the ware- houseman has fairly taken the goods into his own custody, the moment he applies his tackle to them, from that moment the car- rier's liability is determined.^ It appears, therefore, to be of im- ' Forward v. Pittard, 1 T. E. 27 ; Garside v. Trent Navigation Co., 4 lb. 581 ; Hyde v. Trent Navigation Co., 5 lb. 389 ; Harris v. Kand, 4 N. H. 259, 555. When tlie responsibility has begun, it continues, until there has been a due delivery by the carrier, or he has discharged himself of the custody of the goods in his character of common carrier. 2 Kent, Com. 604 (6th edit.) ; Eagle V. White, 6 Whart. 505 ; Gibson v. Culver, 17 Wend. 305 ; Ludwig v. Meyre, 5 Watts & S. 435; Erskine v. Thames, 6 Missis. 371 ; Parker v. Flagg, 26 Maine, 181. It is no excuse for non-delivery, for the owners of a steamboat, who are common carriers, for the loss of a shipment on board of her by means of collision with another vessel, and without any fault imputable to either ; there being no express stipulation of any kind, between the owner of the goods and the owners of the boat, that they should be exempted from the " perils of the sea.'' Plaisted ». Steam Navigation Co., 2 7 "Maine, 132. And see Graff a. Bloomer, 9 Barr, 114. In Harrell v. Owens, in North Carolina, 1 Dev. & B. 273, it was held, that where the master of a vessel undertakes to deliver articles on board of his vessel, on freight, at a certain place, he Cannot allege ignorance, or any excuse arising from human fault or human weakness, as a defence for violating his engagement ; that the true question is not one of actual Name, but of legal obligation. Nothing short of the act of God, or of the public enemy will excuse, in a common carrier, a neglect to deliver. See also Griffith u. Ingledew, 6 S. & K. 429 ; Farmers' Bank v. Champlain Trans. Co., 23 Vt. 286 ; Woods v. Devin, 13 HI. 746 ; Logan ». Mathews, 6 Barr, 417. ' De Mott V, Laraway, 14 Wend. 225. ' Thomas v. Day, 4 Esp. 462. Where a carrier (a master of a vessel, for ex- ample) has once fairly delivered goods to the consignee, his duty is fulfilled, and his responsibility ceases ; and this ought to apprise the consignee, that every in- stant of the time he allows to elapse after such delivery, without objection or com- plaint, carries a presumption with it in favor of the master, that the goods were safely delivered, or that no blame is to be imputed to him ; for it is inconsistent with his duties and obligations, and would be injurious to commerce, that his re- sponsibility should be continued for months and years after such delivery. There- fore where several packages of goods were shipped at London to a merchant in Quebec, where, upon the arrival of the vessel, and after delivery of the packages, some of the goods were missing from one of the packages ; it was held, that, no notice having been given until several months afterwards, the master was not re- 252 LAW OF CAEEIEES. [CHAP. Vm. portance to consider what is requisite to constitute a competent delivery, or such a delivery as will determine the transit and dis- solve the carrier's liability. This, in a great measure, is left to the jury to determine. In a trial of an action to recover dama- ges for an injury to the plaintiff's gondola, occasioned by the neg- ligence of the defendant to whom it was bailed, in suffering it to be frozen in the ice, where the defence was that it had been deliv- ered up to the plaintiff before any injury to it had taken place ; it was held proper to instruct the jury that the testimony of cer- tain witnesses, if believed, would prove that the gondola had been so delivered up to the plaintiff.^ § 283. The carrier is bound in all cases to make a proper deliv- ery with reasonable expedition, if no particular time be fixed upon ; for the duty to deliver within a reasonable time is a term ingrafted, by legal implication, upon a promise or duty to carry generally .2 (a) A receipt given for merchandise at Baltimore^ sponsible for the deficiency. The court said, that although no decision of the English courts had been adduced upon this question, yet as the general principles of law in all commercial countries, in relation to the duties of masters of trading vessels, are drawn from the same source as the French law which they quoted, have the same objects in view, and are founded in reason and justice, they must consider them as applying strongly to the present case. Swinburne v. Massue, Stuart, Low. Canada, 569 ; and see Pardessus, No. 730 ; 2 Boulay Paty, p. 325. ' Alley V. Blen, 28 Maine, 308. ' Story on Bailm. § 545 a (4th edit.) ; Boyle v. M'Laughlin, 4 Harris & J. 291 ; Hand v. Baynes, 4 Whart. 204, and cited ante, Chap. VI. § 177 ; Parsons v. Har- dy, 14 Wend. 215 ; Eagle v. White, 6 Whart. 505 ; Hill v. Humphreys 5 Watts & S. 123 ; Wooley v. Kiddlelien, 6 Scott, N. E. 206 ; Wallace v. Vigus, 4 Blackf. 261 ; Ludwig v. Meyre, 5 Watts & S. 435 ; Erskine v. Thames, 6 Missis. 371; Wibert v. New York R., 19 Barb. 36 ; Hughes v. Great Western E., 14 C. B. 637, 25 Eng. L. & Eq. 283, 317 ; Wallace v. Vigus, 4 Blackf. 261 ; Kome R. v. Sullivan, 14 Ga. 277. (a) Hales v. London R., 4 Best & S. 66 ; Nettles v. South Carohna K., 7 Rich. 190 ; Broadwell v. Butler, 6 McLean, 296 ; Michigan E. v. Day, 20 111. 375 ; Nudd v. Wells, 11 Wis. 407 ; Boner v. Merchants' Steamboat Co., 1 Jones, N. C. 211. If the delay is caused by the act of God the carrier is not liable, if he uses all reasonable means to carry the goods to their destination. As where the delay is caused by a freshet sweeping off a railroad bridge. Lipford v. Char- lotte R., 7 Rich. 409. If a railroad is well equipped, and a delay is occasioned by an unusual influx of business beyond the immediate capacity of the road, and goods Jire transported as expeditiously as possible in the then condition of the road and the business, the railroad is not liable for a delay. Wibert v. New York R., 19 Barb. 36, 2 Kern. CHAP. VIII.] DELIVERY BY. 253 with a promise to deliver the same to a person in Philadelphia, and to be carried by the Chesapeake and Delaware Canal, it was held, in Hand v. Baynes,^ was an engagement to deliver in a rea- sonable time ; and what would be a reasonable time, the court also held, must be determined, under all the circumstances, with a view to the condition of the canal, the season of the year, the state of the weather, and such other matters as might enter into the question. § ^84. A declaration in case alleged that the defendants were common carriers, and that the plaintiff delivered to them certain goods to be carried for him from London to Birmingham, and there to be delivered to the plaintiff for reasonable hire or reward ; and then averred, that it was the duty of the defendants safely and securely to carry and to deliver the said goads ; but although that a reasonable time for carrying and delivering the goods had long since elapsed, yet the defendants, neglecting their duty in that behalf, did not deliver the goods to the plaintiff, but that the goods, by the negligence of the defendants, were wholly lost to the plaintiff. At the trial, it appeared that the parcel in question had been delivered to the defendants in London on the 8th of August, addressed to the plaintiff at Birmingham, where it ought to have arrived on the 10th, but did not arrive until the 3d or 4th of September. It was held, upon this evidence, that the plaintiff was entitled to recover.^ Again, the plaintiff sent certain goods by the defendant (carriers) to be delivered in Bedford on a cer- '■ Hand v. Baynes, 4 Whart. 204. ' Raphael v. Pickford, 6 Scott, N. R. 478. 245 ; Galena E. t'. Rae, 18 III. 488. Unless the carrier contracts to deliver the goods in a particular time, he is not liable for a delay not caused in any way by his fault. Conger v. Hudson River E., 6 Duer, 375. But if the delay is caused hy the fault of the employees of the carrier, the carrier is liable, although he is not personally in fault. Blackstock v. New York R., 1 Bosw. 77, 20 N. Y. 48. In this case the delay was caused by all the engineers refusing to work. In Briddon V. Great Northern R., 4 H. & N. 847, it was held that a carrier of goods or cattle IS only bound to carry in a reasonable time under ordinary circumstances, and is not bound to use extraordinary efforts, in order to surmount obstructions caused by the act of God ; as, a fall of snow. Where the delay was caused by the act of a third party who had, by agreement with the carrier, sanctioned by an act of Parliament, running rights on the carrier's line, it was held, that the carrier was not liable. Taylor v. Great Northern R., Law Rep., 1 C. P. 385. See ante, § 201, n., for rule where a delay occurs through the fault of the carrier, and the goods are afterwards damaged by an excepted peril. 254 LAW OF CAEEIEES. [OHAP. Vm tain day, in order to be ready for the market on Saturday, but did not give notice that they were left for that purpose. On that day the plaintiff's clerk proceeded there, and, owing to the non-deliv- ery till the Monday following, he removed them to another place for sale. The carrier was held liable for the non-delivery of the goods within a reasonable time ; and the expenses so incurred, it was also held, might be given by the jury as damages.^ (a) § 285. Where an action was brought in which it was alleged that the defendant undertook, for compensation, to convey an ac- count delivered to him from W. to H., and to be safely delivered to one A. E. ; and that the defendant having so long delayed to deliver the same the debt was barred by the statute of limitations, and thus wholly lost ; it was held, that the plaintiff was entitled; to recover .2 § 286. It is no excuse for an omission to deliver money deliv- ered to a common carrier to be by him delivered to a bank, that he went to the bank and found it shut. Thus, in an action of assumpsit against the defendant as a common carrier, for a breach of his undertaking, in that capacity, to convey a package of money belonging to the plaintiff in Connecticut to Poughkeepsie in the State of New York, and there deliver it to a bank in that village i and it appeared, that when the defendant arrived at Poughkeepsie, the bank was shut ; that he went twice to the house of the cashier, and not finding him at home, brought back the money, and offered it to the plaintiff, who declined to accept it ; and that the defend- ant then refused to be further responsible for any loss or accident; it was held, that in the absence of any special contract (none was proved in the case) these facts did not constitute a legal excuse to the defendant for the non-performance of his undertaking. That the bank was shut when the carrier went there could amount to nothing, unless it further appeared that he went there at a proper time during the ordinary business hours ; and even then, the court could not say, as a matter of law, that this would be a legal excuse. That there may be circumstances wliich would ex- cuse a carrier from the delivery of a package of money to a bank ' Black V. Baxendale, 1 Exch. 410. See also Crouch v. Great Northern B., 11 Exch. 742, 34 Eng. L. & Eq. 573. ° Favor v. Philbrick, 5 N. H. 358. (a) This case has been overruled as to the jillowance of expenses. Woodger V. Great Western R., Law Rep., 2 C. P. 318. CHAP. Vin.] DELIVEKY BY. 255 to which he has undertaken to convey and deliver it, is doubtless true ; it would depend upon the degree of diligence which the carrier used to let the officers of the bank know that he had a package to deliver there.^ The proper time for a carrier of specie to deliver it to a bank to which it is consigned, is not limited to, banking' hours, unless such, is the special contract or the implied, usage of the place ; and an offer to deliver it at any time during the usual hours of business, reasonable regard being had to its, safety and the convenience of the consignee, is as good as one made in banking hours.^ , § 287. If in the opinion of the jury it is proved that goods are tendered by the carrier to the consignee late in the day, after the termination of the hours of business, and when the consignee has dismissed his hands, and is thus- incapable of receiving and putting away the goods, the tender of delivery is then unreasonable as to tme, arfd the consignee is guilty of no fault or laches in declining to receive them. Therefore, the duty of the carrier, under such qiT)3ttmstances, is to keep the goods still in custody, and he con- tinues to hold them under all his responsibilities as carrier.^ (a) § 288. In Eagle v. White, in Pennsylvania,* the defendants, who were common carriers on a railroad from Philadelphia to Cplumbia, undertook to carry certain boxes of goods belonging to ' Merwin v. Butler, 17 Conn. 138. ' Young V. Smith, 3 Dana, 91. ' Hill V. Humphreys, 5 Watts &. S. 123. ' Eagle V. White, 6 Whart. 505. (a) In Marshall v. American Exp. Co., 7 Wis. 1, a carrier delivered a package of money to the teller at a bank, at half past five in the afternoon. He refused to receive it, on the ground that the cashier had gone home, and the vault was locked up. The carrier put it in his own safe, and in the night the money was stolen. Banking hours closed at 4 P. M. Held, that the carrier was not liable. It appeared in evidence that the bank had been accustomed to receive money from the carrier after banking hours. The consignee is not bound to receive the goods on a stormy day, if the goods would be damaged thereby. The Grafton, Olcott, Adm. 43, 1 Blatchf. C. C. 173. Delivery should be made on a business day. Sleade v. Payne, 14 La. Ann. 453. In Goddard v. Bark Tangier, 23 How. 28, goods were put on the wharf in Bos- ton, and notice given on Fast day ; and while on the wharf they were destroyed by fire. Held, that as the evidence did not show that there was a general usage of the port of Boston not to unload vessels on Fast day, and as there was no law of . the State making the transaction of business, on that day illegal, the me^ter had a right to deliver his cargo. ^ 256 LAW OF CARRIERS. [CHAP. Vm. the plaintiff from Pliiladelphia to Columbia. The cars arrived at the latter place about sundown on a Saturday evening, and by direction of the plaintiff were placed on a sideling, that is, a side track. The plaintiff declined receiving the goods that evening, on the ground that it was too late ; whereupon the agent of the de- fendants left the cars on the sideling, taking with him the keys of the padlocks with which the cars were fastened, and promised to return on Monday morning. The cars temained in this situation until Monday morning, when they were opened by the plaintiff by means of a key which fitted the lock ; and on examination it was discovered that one of the boxes had been opened and the contents carried away. It was held, that the defendants were liable to the plaintiff for the value of the goods lost. Rogers, J., who gave the opinion of the court, was of opinion that if the tender was want- ing in any one of the essential requisites of a proper time, a proper manner, and a proper place, the responsibility as carrier still con- tinues. Although his strict accountability of carrier may cease, said the learned judge, he becomes a bailee, and as such must take ordinary care of the goods. But in this case, said he, neither party supposed the goods were delivered, or that the responsibility had ceased. But from this opinion Huston, J., dissented. § 289. But if, by any accident or misfortune, not amounting to the act of God, (a) or the act of the public enemy, the trausportar tion of the goods is obstructed and delayed, the carrier wUl not ba answerable for the delay so occasioned, if he has nsed a reason- able degree of exertion and diligence in the transportation. A temporary unavoidable obstruction only suspends, and does not avoid, the contract.^ A common carrier on a canal may be pre- vented by reason of ice from accomplishing, without serious deten- tion, the whole Toyage ; and in such event he is only bound to • Hadley v. Clarke, 8 T. R. 259. In respect to the time of the delivery of goqds, a common carrier is responsible only for the exertion of due diligence, and he may excuse delay in delivery by accident or misfortune, although not inevita- ble. It is enough, that he uses proper endeavors to prevent delay. In other words, the principle upon which the extraordinary responsibility of common carriers is founded does not require that that responsibility should be extend edto the time occupied in the transportation ; the danger of robbery, or collusion and fraud, has no application in such case. Parsons v. Hardy, 14 Wend. 215. (6) * (a) See ante, § 283, n. (6) Boner v. Merchants' Steamboat Co., 1 Jones, N. C. 211. See cases, an(«) § 283, u. • CHAP. VIII.] DELIVERY BY. 257 deliver at the place to which he undertook to transport the goods, on the canal again becoming navigable .^ (a) The freezing of the canal may, indeed, as has already appeared,^ be deemed the act of God ; but suppose the canal-boat has been retarded or obstruct- ed in its voyage by reason of any accident or misfortune not amounting to an act of God, as by the disordered condition of some lock, in such case the carrier will not be liable for any damage occasioned to the shipper thereby, if the goods finally arrive in safety, unless he has been guilty of negligence.^ § 290. The keeper or owner of a public ferry is bound to trans- port goods across the stream after night, and a failure to do so will, in Alabama, subject him to an action under the statute, without suit upon the bond ; but yet, in such actions, the defendant may show the prevalence of high winds rendering it dangerous ; or that the application was after the usual bedtime, and that the residence was at some distanoev from the ferry.* § 291. So the carrier will be excused for his delay in delivery, if the consignee is dead or absent, or has refused to receive the goods, though, in those cases, he is not justified in abandoning the goods, as by leaving them unprotected on a wharf ; his duty, on the contrary, being to secure them for the owner.^ Although in Eisk V. Newton,^ the general rule is recognized, that a common carrier is bound seasonably to deliver the goods intrusted to him to carry, personally to the consignee, at the place of delivery, yet it was held, that where goods are safely conveyed to their place of destination, and the consignee is dead, absent, or refuses to receive, or is not kn'own, and cannot after reasonable efforts be found, the carrier may discharge himself from further liability, by pla- cing the goods in store with some responsible third person in that ' Parsons v. Hardy, ub. sup. ' Ante, § 160. ' Story on Bailm. § 545 a (4th edit.) ; and see Evans v. Button, 5 Scott, N. R. 670. ' P^te V. Henry, 5 Stew. & P. 101. ' Ostrander v. Brown, 15 Johns. 39 ; Clendaniel v. Tuekerman, 17 Barb. 184 ; Gooldi;. Chapin, 10 lb. 612. ' Fisk V. Newton, 1 Denio, 45. (a) In Beckwith v. Frisbie, 32 Vt. 559, where goods were delayed by the freezing of a canal, and it became necessary to take the goods out and store them, it was held, that the owner of the goods was liable to the carrier for money paid out by him for the storage. 17 258 LAW OP CAKKIEES. [CHAP. VIH business, at that place, for and on account of the owner ; the storehouse-keeper, in such event, becoming the bailee of the owner of the property. In this case, the consignee of butter, sent from Albany to New York by freightbarge, was a clerk having no place of business of his own, and whose name was not in the city directory, and who was not known to the carrier, and, after reasonable inquiries by the carrier's agent, could not be found ; and it was held, that the carrier discharged himself from further liability, by depositing the property with a storehouse-keeper then in good credit, for the owner, and taking his receipt for the same, according to the usual course of business in that trade ; though the butter was subsequently sold by the storehouse-keeper, and the proceeds lost to the owner by his failure, (a) § 291 a. Where a carriei*. by water, upon his arrival at the place of delivery, reports himself ready to deliver his cargo, and the consignee is not ready to receive it, and the carrier's vessel, after waiting several days for an opportunity to discharge her cargo, is, while thus waiting, carried away by a freshet, and her cargo lost overboard by the upsetting of the vessel, so that it could not be delivered to the consignee, freight is nevertheless recover- able. For if the owner or consignee neglects to receive the mer- chandise, the carrier, if practicable^ may leave it in store, and so discharge himself from further liability.^ (o) ' Clendaniel v. Tuckerman, 17 Barb. 184. (a) If the carrier delivers goods to a warehouseman, the nature of the delivery determines whether the warehouseman is to act as the bailee of the carrier or of the owner of the goods. If for the latter, the carrier cannot reclaim them of the warehouseman by tendering him the amount of his charges. Hamilton ». Nick- erson, 11 Allen, 308. See Boilvin u. Moore, 22 EI. 318. In Steamboat Keystone V. Moies, 28 Misso. 243, the consignee refused to receive the goods, and the car- rier thereupon brought them back to the consignor and claimed freight both ways and charges, under an alleged custom of the Missouri River. The court held, that if the carrier, in acting as agent for the owners, pursued such course as men of ordinary prudence would follow, he would be protected, and doubted whether a custom to return all goods to the consignors would be valid. In" Lyons V. Hill, 46 N. H. 49, goods were sent by a carrier to a purchaser, the lat- ter to pay cash on delivery. On arrival the purchaser took the goods home to examine them, leaving with the carrier the price, on condition that if the goods were not right, they should be returned and the money given back. After ex- amination the purchaser refused to keep them, gave them back to the carrier, and received back his money. The carrier took the goods to the consignor, who re- fused to receive them. Held, that the carrier was not liable to the consignor. (J) But if a railroad company contracts to deliver the goods to its own agent, CHAP. Vni.] DELIVERY BY. 259 § 292. When a ship-owner or master of a ship cannot, with- out delay, deliver the goods, from their being unlawfully detained by revenue officers, his liability, nevertheless, continues, inas- much as he has a remedy over against the offiqigrs for the illegal detention.! § 293. If a due delivery of goods is interrupted by persons in- vested with legal authority to prohibit the landing and delivery at the place at which they are destined, such legal authority must be fully disclosed in the defendants' pleading. Thus, to a declara- tion upon a contract to carry goods from Liverpool to Canton, and there to deliver them, (all and every dangers and accidents of the seas and navigation, of whatever nature or kind soever, ex- cepted,) to the plaintiffs agents, the defendants pleaded, that they caused the ship to sail to Canton, and that she, with her goods on board, arrived near to the port of Canton ; that then and there certain persons, authorized officers of the British govern- ment, and then and there exercising the power of her Majesty's government, to wit, one C. Elliott, then being the chief superin- tendent of the trade of her Majesty's subjects to and from the dominions of the Emperor of China, according to the form of the statute in that case made and provided, and one Smith, then being captain of her said Majesty's ship the Volage, then being the commanding ofBcer of her said Majesty's naval forces there, did, for divers goods and sufficient and lawful causes and reasons, them in that behalf moving, and not for any wrongful, negligent, unlawful, or improper act or behavior of the defendants, their master or mariners, done or committed, forcibly interrupt the said ship, being a British ship, from further proceeding on its said voyage to Canton aforesaid ; and did, by virtue of the powers and authorities to them in that behalf committed, and by means of her said Majesty's naval forces then and there being under their com- mand, and by the force and duress thereof, forcibly constrain and compel the said ship, and continually had constrained and com- pelled the same not to proceed to Canton aforesaid, and thereby ' Gosling V. Higgins, 1 Camp. 451. it becomes liable as a carrier for their transportation, and as a w.arelioaseman for their subsequent safe-keeping and dellivery, and if the agent deposits the goods in the warehouse of a third person, who, by mistake, delivers them to a person not authorized to receive them, the railroad company is liable. Alabama R. v. Kidd, 35 Ala. 209. See Hathorn v. Ely, 28 N. Y. 78. 260 LAW OF CARRIERS. [CHAP. VIH. prevented, and thenceforth always Jiitherto had prevented, and still did prevent, the defendants from delivering the goods at Canton. On special demurrer to this plea, it was held bad for not suf- ficiently disclosing, that Elliott and Smith, as chief superintendent and commander of the naval forces in the Chinese seas respec- tively, had legal authority, by statute or otherwise,' to act in the manner alleged.^ But this case has been referred to in support of the position, that if an agreement be made to do an act law- ful at the time of such agreement, but afterwards, and before the performance of the act, the performance is rendered unlawful by the government of the country, the agreement is absolutely dissolved.^ § 294. But the principles of law in respect to the obligation of a carrier to deliver goods in a reasonable time, depending upon circumstances, though they apply, as in the foregoing cases, to implied contracts, will not apply to an express contract to dehver in a prescribed time. In the latter case no temporary obstruction, or even the absolute impossibility of complying with the engage- ment, will be a defence to an action for failure in performing the contract.^ There is a distinction founded in reason and authority, which is, that when the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, then the law will excuse him ; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay, by inevitable necessity, because he might have provided against it by his contract.* (a) 1 Evans v. Hutton, 5 Scott, N. E. 670. ' Abbott on Shipp. 704 (5th Am. edit.). ' Ante, §§ 37, 59. * Per Rogers, J., in delivering the opinion of the court in Hand v. Baynes, 4 Whart. 214 ; Paradine v Jane, Aleyn, 27 ; Brecknock Canal Nat v. Pritchard, 6 T. R. 750 ; Hadley v. Clarke, 8 T. K. 259. There are also authorities on the subject as between insurers and insured. In Shubrick v. Salmond, 3 Burr, 1637, Lord Mansfield takes the distinction between implied covenants, by operation of law, and express covenants, that is, that express covenants are treated strictly. (a) Nor is this construction barred by a subsequent covenant,Jthat a certain deduction shall be made from the freight in the event of a delay in the delivery of the goods beyond the period limited. Nor is the carrier excused, where there is an express agreement to deliver in a certain time, by reason of a hill of lading being given which excepts all unavoidable accidents. Harmony v. Bingham, 1 Duer, 209. See also Place v. Union Express Co., 2 Hilton, 19. So where a CHAP. VIII.] DELIVEEY BY. 261 § 295. When the carriage is by land, and in the absence of any- established usage, or any special contract to the contrary, the goods must be carried to the residence of the consignee ; ^ so that coach proprietors, for example, are not released from responsi- bility by having the goods left at the coach-ofiSce, or at an inn at which the coach usually stops.^ If the carrier tenders the goods at the residence of the consignee, and is ready to deliver them on receiving payment of his hire, he has fulfilled his contract as a carrier ; and if the hire is not paid, he is not bound to part with the possession of the goods ; but he is authorized to take them back to his warehouse, or place of business, and he holds them thenceforward, not as a common carrier,^ (a) but as a private bailee See also De Habn v. Hartley, 1 T. K. 343. It has also been ruled, that if a ship, warranted to sail on or before a certain day, be prevented from sailing on that day by an embargo, the warranty is not complied with. Home v. Whitmore, 2 Cowp. 784 ; Pawson u. Watson, 2 Cowp. 785. Notwithstanding any custom to the contrary, if the carrier specially undertakes to deliver, he is chargeable. Warden v. Mourillyan, 2 Esp. 693. ' See 2 Kent, Com. 604. ' Add. on Contr. 810. Leaving at the stage-office can only be authorized, in the absence of express permission, by long-established and a generally well-known usage. Gibson v. Culver, 17 Wend. 305, ' Storr V. Crowley, 1 M'Clel. & Y. 136 ; 2 Kent, Com. 604. common carrier contracted to convey, in a reasonable time after delivery, all the tobacco which the other party to the contract might deliver by a certain day, it was held to be no defence that the falling of the river prevented his boat from going, as boats of lighter draught could go. Collier v. Swinney, 16 Misso. 484. See also Higginson v. Weld, 14 Gray, 465 ; Tirrell v. Gage, 4 Allen, 251 ; Ware- ham Bank v. Burt, 5 Allen, 113. In Gage v. Tirrell, 9 Allen, 299, in a well-con- sidered opinion, the court held that a common carrier did not, by giving a bill of lading which contained only the exception of perils of the seas, thereby make a special contract to deliver subject only to this exception, but that he was excused from delivery if prevented by the act of God or the public enemy. (a) In Great Western E. v. Crouch, 3 H. & N. 183, a parcel was carried from London to Plymouth and tendered at noon to the agent of the consignee. He refused to receive, alleging that the charge was too high, and was then informed that the parcel would be sent to London. The next morning the parcel was sent to London. Two hours after it was sent a tender of the freight was made at Plymouth and the parcel demanded. The jury found that the parcel was sent back unreasonably soon, that it ought not to have been sent to London, and that the demand and tender were made in a reasonable time after the parcel had been- refused. Held, that the carrier was liable for the value of the parcel. . If the master of a vessel acts as the Consignee of the shipper at the port of destination, the liability of the owner of the vessel as carrier ceases as soon as the liability of the master as consignee commences. Labar v. Taber, 35 Barb. 305. 262 LAW OF CARRIERS. [CHAP. VUl. for hire ; ^ or (if he is not to charge warehouse rent) as a gratui- tous bailee.^ § 296. In Hyde v. Trent and Mersey Navigation Company,^ the subject was considerably discussed, whether the carrier was bound to deliver to the individual at his house, or whether he dis- charged himself from liability by delivery to a porter, at the inn in the place of destination. The opinion of Lord Kenyon was, that the carrier was thus discharged, but the three other judges, BuUer, Ashhurst, and Grose, were of opinion, that the risk of the carrier continued until a personal delivery at the house or place of deposit of the consignee. It was said by BuUer, J. : " According to the argument, from the inconvenience, that car- riers are not bound to deliver goods, I think the same argument tends to establish a much greater inconvenience, the necessity of three contracts, in all cases where the goods are sent by a coach or wagon ; one with the carrier, another with the innkeeper, and a third with the porter. But, in fact, there is but one contract ; there is nothing like any contract, or even communication, be- tween any other .person than the owner of the goods and the car- rier : the carrier is bound to deliver the goods, and the person who actually delivers them acts as the servant of the carrier. If the innkeeper has some interest in the concern, then he is liable as a carrier. It has been said, too, that the place of a porter is valuable, and the subject of a purchase ; but who sells it ? Not the person to whom the goods are sent, but the carrier, or the innkeeper, whom I consider as the same person. If the innkeeper has no share in the profits, then he is the servant of the carrier as well as the porter. Therefore, whether there be the innkeeper and the porter, or the porter only, the carrier is liable in all cases where the goods are lost, after they get into the hands of the inn- keeper or porter, because they are delivered to those persons with the consent, and as the servants of the carrier. The different pro- prietors may divide the profits among themselves, in any way they choose ; but they cannot, by their own agreement with each other, exonerate themselves from their liability to the owner of the goods. They may fill the two different characters of ware- housemen and carriers, at different times, but I deny that they ' As to private bailees for hire, see ante, Chap. III. " As to gratuitous bailees, see ante, Chap. II., and Young v. Smith, 3 Dana, 91- ' Hyde v. Trent Nav. Co., 5 T. R. 389. CHAP. VIII.] DELIVEEY BY. 263 can be both wareliousemen and carriers at the same instant. If the undertaking was to carry and deliver, then the goods remain in their custody, as carriers, the whole time." ^ § 297. On more recent occasions, in England, the opinions "of other distinguished judges have settled down in favor of the doc- trine as above laid down by Mr. J. Buller, and concurred in by Ashhurst and Grose, Js. ; ^ and an actual delivery to the proper person is now generally conceded to be the duty of the car- rier.^ (&) Cowen, J., in delivering the opinion of the court, in Gibson v. Culver,* considers it well settled that primd facie the carrier is under obligation to deliveir the goods to the consignee personally. In Eagle v. White, in Pennsylvania,^ the general rule, unless modified by usage or special contract on the subject of delivery of goods by a carrier, is considered to be that in the contract for carriage, the common carrier engages to deliver the goods intrusted to him into the actual custody of the person for whom they are intended, at his residehce or place of business ; and that, in no other way can he discharge himself of his respon- sibility as a common carrier, except by proving that he has per- formed such engagement, or has been excused from the perform- ance of it, or has been released from it by the act of God, &c.^ And, indeed, it has been considered to have been repeatedly ruled that delivery at a point or place in close proximity with the place stipulated will not relieve the carrier from his responsibility as such ; and that mere propinquity of delivery is no delivery .'^ ' And see Golding v. Manning, 3 Wils. 429, in which a delivery to a porter was held to be no delivery to the consignee. Smith v. Nashua R., 7 Foster, 86. ' Storr V. Crowley-, ub. sup.; Stephenson v. Hart, 4 Bing. 476 ; Garnett v. WiUan, 5 B. & Aid. 53 ; Bodeuham «. Bennett, 4 Price, 34 ; Duff v. Budd, 3 Bred. & B. 177 ; Birkett v. Willan, 2 B. & Aid. 356. ' 2 Kent, Com. 604 ; Story on Bailm. § 543. ' Gibson V. Culver, 17 Wend. 305. » Eagle V. White, 6 Whart. 505. . ° See also Moore v. Sheredine, 2 Harris & M'H. 453 ; Cbickering v. Fowler, 4 Pick. 453 ; Young v. Smith, 3 Dana, 92. ' Graff V. Bloomer, 9 Barr, 114. And see DeMott v. Laraway, 14 Wend. 226, and ante, § 282. (a) Haslam v. Adams Exp. Co., 6 Bosw. 235, cited post, § 319 ;'Baldwin v. Am. Exp, Co., 23 III. 197; Am. Exp. Co. v. Baldwin, 26 111. 504. If the carrier is Ignorant that the property carried belongs to the consignor, he is authorized to deliver it to whomsoever the consignee directs. Sweet v. Barney, 23 N. Y. 335. 264 LAW OF CAKEIERS. [CHAP. YIH. § 298. It is important for the master of a vessel to recollect that his engagement is to deliver the goods to the persons men- tioned in the bill of lading or their assigns.^ Where the owner of, a canal-boat gave a receipt for a quantity of nails which he agreed to deliver to W. L., No. 17 Walnut Street, Philadelphia, and on arrival of the boat in Philadelphia the captain delivered the nails at the wharf of the defendants, who were forwarding and commission merchants, with instructions not to deliver them un- til the freight was paid ; the court considered that the delivery oa the wharf was no delivery to the owner or the consignee.^ (a) § 299. To cases where the engagement is to deliver to the per- sons mentioned in the bill of lading, the before-mentioned case of Hyde v. Trent and Mersey Navigation Company is applicable. To the declaration on a contract by the master of a steam-vessel to convey goods from Dublin to London, and to deliver the same at the port of London to the plaintiff or his assigns, a plea that, after the arrival of the vessel at London the defendant caused the goods to be deposited on a wharf, there to remain until they could be delivered to the plaintiff or his assigns, the wharf being a place where goods from Dublin were accustomed to be landed, and fit and proper for such purposes ; and that before a reasonable time for delivery had elapsed they were destroyed by a fire which broke out by accident, was held ill. The reason stated by Tindal, 0. J., was, that it left the matter in uncertainty. At what interval, after the arrival of the vessel, the defendants caused the goods to be landed did not appear ;. and whether a reasonable time was allowed to elapse after the vessel's arrival in the port of London, in order to give time to the plaintiff to claim and receive his goods from alongside the vessel, the plea was altogether silent. It was quite consistent, said the learned judge, with the allegations in the plea, that the plaintiff demanded the delivery of his goods be- fore they were landed, and that the defendants refused or neg- lected to permit him to receive them. It left, said he, the matter in uncertainty, whether the plaintiff was not compelled against 1 Abbott on Shipp. 463 (5th Am. ed.). " Humphreys v. Beed, 6 Whart. 435. (a) If the master has wrongfully omitted to sign bills of lading, and has sailed ■without learning the names of the consignees, he cannot avail himself of this ig- norance as an excuse for not giving notice of the landing of the goods. The Peytona, 2 Curtis, C. C. 21. CHAP. VUlJ DELIVERY BY. 265 his will to receive his goods from a wharf where there is no alle- gation that such is the usual practice in the port of delivery ; and he thought the principle laid down in the case of Hyde v. Trent and Mersey Navigation Company had a close bearing upon and governed the decision of the case before the court.^ The judg- ment in this case was affirmed in the Exchequer Chamber,^ in which Patteson, J., said, that the defendants were calling upon the court to hold that a delivery of the goods in question at a strange wharf is a delivery according to the contract. And Lord Den- man, C. J., said : " The delivery at Fenning's wharf was certainly not a delivery under the bill of lading, unless the usage and prac- tice of the port .of London made it so." The judgment in the Exchequer Chamber was also affirmed in the House of Lords, excepting in so far as it related to a question of costs.^ \ 300. The doctrine appears to be established in this country that, in the absence of a special contract or of well-established usage, the mere landing of goods from a vessel on a wharf is not such a delivery to the consignee as will discharge the carrier. Where goods were put on board the defendant's sloop to be car- ried from New York to Albany,' and on their arrival at Albany were, by the direction of the defendant, put on a wharf there, it was held not to be a delivery to the consignee, even though the goods were taken by a cartman who had often carted for the con- signee.* (a) The responsibility of a common carrier on the Ohio Eiver does not cease, it has been held, by the delivery of goods on the wharf, and notice given to the consignee ; but the duty of the carrier is to attend to the actual delivery.^ Landing cotton on a wharf in Charleston (S. C.) was held not a delivery, it not being made so by usSge.^ In the absence of usage to the contrary, it has been held in Vermont, that a delivery of the goods on the wharf is not necessarily a delivery to the wharfinger.'' If a con- signee goes on board a vessel and sees a list of the goods which • Gatliffe v. Bourne, 4 Bing. N. C. 314. ' 1 Scott, N. K. 1. 8 8 Scott, N. R. 604. ' Ostrander v. Brown, 15 Johns. 39. ^ Hemphill v. Chenie, 6 Watts & S. 62. " Galloway v. Hughes, 1 Bailey, 553. Blin V. Mayo, 10 Vt. 56. That a delivery to a wharfinger is not in general a delivery according to the direction, see Wardell v. Mourillyan, 2 Esp. 693. (a) Eowland v. Miln, 2 Hilton, 150; Sleade v. Payne, 14 La. Ann. 453. 266 ■ LAW OF CAEKIEES. [CHAP. VIH. are then in the hold of the vessel, that is not evidence of a deliv- ery ; nor is it, if the master soon afterwards puts them on the dock, but not in the presence nor with the knowledge of the con- signee.-' § 301. But the primd facie obligation of the carrier to make an actual delivery to the consignee personally may be affected by a well-established and generally known custom and usage.^ (o) The doctrine in respect to all commercial usage is, that, to have it take the place of general law, it must be so uniformly acquiesced in by length of time, that the jury will feel themselves constrained to say, that it entered into the minds of the parties, and made a part of the contract.^ (ft) It was agreed in Hyde v. Trent and Mersey Navigation Company, that the obligation of a carrier to deliver might be affected by the customs of the trade, though primd facie the carrier is bound to a personal delivery.* In ' Ostrander v. Brown, ul. sup. * Story on Bailm. § 543 ; 2 Kent, Com. 604 ; Blin v. Mayo, 10 Vt. 56. ' By Lord EUenborough, C. J., and Grose, J., in Knshforth ». Hadfield, 6 East, 519, and the doctrine recognized in Gibson v. Culver, 17 Wend. 305. And see ante, §§ 229, 230. * Hyde v. Trent. NaT. Co., 5 T. R. 389. So also in Ostrander v. Brown, 15 Johns. 39 ; Gibson v. Culver, 17 Wend. 305 ; Blin v. Mayo, 10 Vt. 56 ; Galloway V. Hughes, 1 Bailey, 553 ; Hemphill v. Chenie,'6 Watts & S. 62; Chickering v. Fowler, 4 Pick. 371 ; "Van Santvoord *. St. John, 6 HUl, 158; Cope v. Cordova, 1 Rawle, 203. (a) Huston v. Peters, 1 Met. Ky. 558. A usage that the master of the vessel may select the wharf is valid. Dixon v. Dunham, 14 111. 324. In The Brig Fittler, TJ. S. D. C, Mass., 1866, Lowell, J., a suit, was- brought to recover damages for an alleged refusal of the master to land the libellaut's goods at East Boston. The vessel arrived Saturday night. On Sunday the wners sent an order to the mas- ter to haul to Union Wharf, which he did early onTtlonday. Soon after he had made fast and had discharged his tugboat, he received an order from the libellant to haul to East Boston. This he refused to do. The libellant owne4 the greater part in bulk and value of the cargo, and was to pay the greater part of the freight. There were several other consignments. Evidence of the usage in such cases was taken at great length. The court held, that the delivery must be in accordance with the usage ; that, except in some particular trades, the consignees had the right to order the master to go to any wharf they pleased ; that if no or- der was given he could select a wharf; that if there were several consignees, those who had to pay the greater part of the freight might make the selection, but that the notice should be given in due season, and that after the vessel was at the wharf selected by the master, it was not reasonable to require him to change. The libel was dismissed. (b) Alabama R. v. Kidd, 35 Ala. 209 CHAP. VIII.] DELIVERY Bt. ' 267 Garside v. the Same Company, usage and course of business were received to determine wheth'er tlie defendants, at the time when the goods were burned, held them ag common carriers, or mere warehousemen for the plaintiff; the proof was confined to the course of business in the particular line of stages, and the cause was determined in favor of the defendants.^ Lord Tenterden, in treating of the duties of carriers by water, says : " The manner of delivering the goods, and consequently the period at which the responsibility of the master and owners will cease, de- pend upon the custom of particular places and the usage of par- ticular trades."^ § 302. If a common carrier from A to B receives goods to be carried from A to B, and by the known usage and course of busi- ness the goods are to be deposited in the carrier's warehouse at B.j'the responsibility, as common carriers, is limited to the arrival of the goods at B., when he holds them, not as common carrier, but as a mere warehouseman.^ (a) The keeping of the goods in the warehouse in such cases is, as was observed by BuUer, J., " not for the convenience of the carrier, but of the owner of the goods ; for when the voyage is performed, it is for the interest of the carrier to get rid of them directly." * Afloat in any town or city is not in any proper or legal sense a warehouse.^ (6) § 30-3. In the case of Thomas v. Boston and Providence Rail- road Corporation,^ whose terminus was at Boston, the plaintiff, who lived in a town in the neighborhood of the defendants' ware- house in Boston, was not ready to receive all his goods, and ' Garside v. Trent. Nav. Co., 4 T. R. 581. ^ Abbott on Shipp. 463 (5th Am. ed.) ; Cox v. O'Eiley, 4 Port. Ind. 368, and see ante, § 289. ' Kowe V. Pickford, 8 Taunt. 83 ; In re v. Webb, 8 Taunt. 443, and see ante, §§75,131-135. ' Garside v. Trent Nav. Co., ub. sup. ' Goold V. Chapin, 10 Barb. 612. (c) See ante, § 95. ' Thomas v. Boston R., 10 Met. 472. (a) McCarty v. New Tork R., 30 Penn. State, 247 ; Billiard v. Wilmington R., 6 Jones, 343 ; New Albany R. v. Campbell, 12 Ind. 55. If the carrier agrees to let goods remain on his boat for ninety days after arrival without extra charge, he is liable only as a warehouseman after arrival. Hathorn v. Ely, 28 N. Y. 78. (b) See Miller v. Steam Nav. Co., 6 Seld. 431. (c) Affirmed, 20 N. Y. 239. 268 LAW OF CARRIERS. [CHAP. VIII. agreeably to usage, they were left for his convenience in the ware- house, and, not for any benefit to the 'defendants ; but the defend- ants were charged, as common carriers, with the loss of a roll of leather from the warehouse. At the trial, in the Court of Com- mon Pleas, before Wells, C. J., it was proved or admitted, that four rolls of leather, the property of the plaintiff, were delivered to the defendants at Providence, to be transported to Boston; that they were so transported, and were deposited at the defend- ants' depot at Boston ; that a teamster, employed by the plaintiff, shortly after called at the depot, with a bill of the freight re- ceipted by. the defendants, and inquired for the leather ; that it was pointed out to him by the defendants' agent, who had charge of the depot ; that the teamster then took away two of the rolls, and soon after called again and inquired for the other two ; that he was directed to look for them ; and that he found only one. The defendants, to show that they were not liable for any loss oc- curring while the goods were deposited at their depot, offered to prove that they had, prior to this time, posted up notices contain- ing this expression : " Merchandise, while in the company's store- houses, is at the risk of the owners thereof" ; and that these notices had been so long posted up, and so extensively circulated, that the plaintiff must be presumed to have known their contents ; and that the plaintiff, prior to the time of the loss, had frequently. em- ployed the defendants to transport goods for him. The judge ruled that the evidence was inadmissible. The jury were in- structed " to ascertain from all the evidence what was the con- tract between the .parties, and if they were satisfied that it was the usage and practice of the defendants, not only to transport goods over the road, but also to deposit them in their warehouses, without charge, until the owner should have a reasonable time to remove tl^em, and that they did provide warehouses or depots for the purpose of so storing the goods, this usage and conduct would be sufficient evidence for the jury to find that it was a part of the contract that the defendants should so store and keep the goods delivered to them for transportation ; and that, if such was the contract, then their liability as common carriers would continue while the goods were stored in the depot ; but that in the present case, if the goods, after having been so stored, were actually delivered to the plaintiff or his agent, or if an arrangement was entered into between the parties, by themselves or their agents, CHAP. Vm.] DELIVERY BY. 269 by which the defendants agreed to part with the custody and con- trol over the property, and the plaintiff agreed to assume the custody and control over it, although there was no actual delivery, or if the plaintiff or his agent so improperly conducted himself, either by language or acts, as to lead the defendants or their agents to believe (they acting with proper care and discretion) that the plaintiff had undertaken to assume the control of the property, and had discharged the defendants from any further responsibility, and the defendants, in consequence, ceased to take any further charge or oversight of the property, the responsibility of the defendants would be thereby terminated ; that the burden of proving these facts was upon the defendants." A verdict was returned for the plaintiff, and the defendants alleged exceptions to the instructions given to the jury. Hubbard, J., by whom the opinion of the Supreme Court was delivered, after stating the question to be, whether the defendants were liable as "common carriers, after the goods were safely stored in their warehouse depot, proceeded to say ; " The transportation of goods and the storage of goods are contracts of a different character ; and though one person or company may render both services, yet the two contracts are not to be confounded or blended ; because the legal habilities attending the two are different. The proprietors of a railroad transport merchandise over their road, receiving it at one depot or place of deposit, and delivering it at another, agreeably to the direction of the owner or consignor. But from the very nature and peculiar construction of the road, the proprietors can- not deliver merchandise at the warehouse of the owner, when situated off the line of the road, as a common wagoner can do. To make such a delivery, a distinct species of transportation would be required, and would be the subject of a distinct con- tract. They can deliver it only at the terminus of the road, or at the given depot where goods can be safely unladed ancJ put into a place of safety. After such delivery at a depot, the carriage is completed. But, owing to the great amount of goods transported and belonging .to so many different persons, and in consequence of the different hours of arrival, by night as well as by day, it becomes equally convenient and necessary, both for the proprie- tors of the road and the owners of the goods, that they should be unladed and deposited in a safe place, protected from the weather and from exposure to thieves and pilferers. And where 270 LAW OF CARRIERS. [CHAP. Vm. such suitable "warehouses are provided, and the goods, which are not called for on their arrival at the places of destination, are un- laded and separated from the goods of other persons, and stored safely in such warehouses or depots, the duty of the proprietors as common carriers is, in our judgment, terminated. They hme done all they agreed to do ; they have received the goods, have transported them safely to the place of delivery, and, the con- signee not being present to receive them, have unladed them, and have put them in a safe and proper place for the consignee to take them away ; and he can take them at any reasonable time. The liability of common carriers being ended, the proprietors are, by force of law, depositaries of the goods, and are bound to reason- able diligence in the custody of them, and consequently are only liable to the owners in case of a want of ordinary care. In the case at bar, the goods were transported over the defendants' road, and were safely deposited in their merchandise depot, ready for delivery to the plaintiff, of which he had notice, and were in fact in part taken away by him ; the residue, a portion of which was afterwards lost, being left there for his convenience. No agree: ment was made for the storage of the goods, and no further com- pensation paid therefor; the sum paid being the freight for carriage, which was payable if the goods had been delivered to the plaintiff immediately on the arrival of the cars, without any stor- age. Upon these facts, we are of opinion, for the reasons before stated, that the duty of the defendants as common carriers had ceased on their safe deposit of the plaintiff's goods in the mer- chandise depot ; and that they were then responsible only as de- positaries without further charge, and consequently, unless guilty of negligence in the want of ordinary care in the custody of the goods, they are not liable to the plaintiff for the alleged loss of a part of the goods." With regard to the notices posted up, and which were relied on by tlie defendants, that merchandise in their warehouse was at the risk of. the owners, the learned judge said: " In the course of the trial, the defendants offered to prove that, px'ior to the transportation of the plaintiff's leather, they had posted up notices containing this provision, viz. ' merchandise, while in the company's storehouses, is at the risk of the owners thereof ' ; and that from the length of time they had been posted, and the prior dealings of the plaintiff with them, he must be pre- sumed to have had knowledge of the fact ; but the evidence was CHAP. Vin.J DELIVERY BY. 271 not admitted. We are not called upon, in this case, to decide as to the legal character of such notices ; a subject which has been fully considered in this country as -well as in England. See Hol- lister V. Nowlen, 19 "Wend. 234, and Cole v. Goodwin, 19 Wend. 251, and the long list of English authorities there cited, on page 269. In the view of the law bearing upon this case, viz. that the defendants are not liable as common carriers, the notice, we think, becomes unimportant, as it clearly would not screen the defendants from loss occasioned by their negligence or want of ordinary care ; and beyond that they are not chargeable. Other questions which arose upon the trial it is not necessary to notice. For the reasons stated, we think the learned judge erred in his instructions to the jury, that the liability of common carriers con- tinued to attach to the defendants while the goods were stored in their depot. The verdict must therefore be set aside. Upon the evidence as reported, there appears little ground to charge the defendants with want of ordinary care in the custody of these goods ; but that is a question to be settled on the further trial of the case." ^ (o) ' Sage V. Gittner, 11 Barb. 120 ; Bristol v. Rensselaer R., 9 lb. 158. (o) In Norway Plains Co. v. Boston & Maine R., 1 Gray, 263, it was held that a railroad was not liable as a common carrier, but only as a warehouseman, after the goods, were unladen from the cars and placed in the warehouse, although the consignees had no opportunity to fake the goods away before the loss. See also Lamb v. Western R., 7 Allen, 98. But the better view seems to be that there is no change in the nature of the liability of the carrier until the consignee has had reasonable opportunity to take the goods away. Moses v. Boston & Maine E., 32 N. H. 523 ; Smith v. Nashua R., 7 Foster, 86 ; Michigan Central E. V. Ward, 2 Mich. 538 ; Blumenthal v. Brainerd, 38 Vt. 402. If a special contract is made to deliver goods at a particular place, the carrier is liable until delivery, as a carrier, and not as a warehouseman, although the goods are destroyed in his warehouse. Moore v. Michigan E., 3 Mich. 23. If goods are destroyed by fire after the end of the journey, and while they are in the possession of the carrier as a warehouseman, the burden is on the carrier to show that the fire was not occasioned by his negligenpe. Wardlaw v. South Carolina E., 11 Eich. 337. In Milwaukee E. v. Fairchild, 6 Wis. 403, goods arriving at night were placed on the platform surrounding the warehouse of the company, and were stolen therefrom during the night. The company was held liable. A regulation by a railroad requiring a receipt for all the goods consigned to one person is valid, and the company is not bound to take a receipt for each por- tion as it is carried away. Morris R. v. Ayres, 5 Dutch. 393. See also Skinner ". Chicago E., 12 Iowa, 191. • 272 LAW OF CAEEIERS. [CHAP. Vin., § 304. Therefore, when a common carrier pursues the business both of transportation and warehouse-keeping, the nature and ex- tent of his liability will depend upon the character in which he is accustomed to hold the goods at the time of the loss.^ If they are received into the warehouse of such carrier to await the future orders of the owner or consignor as to their destination, the car- rier is clothed only with the .ordinary duties and responsibilities of a warehouseman ; his responsibility, as common carrier, hav- ing ceased.^ (a) If a common carrier between A and B receives goods to be carried from A to B, and thence to be forwarded by a distinct conveyance to C ; as soon as he arrives with the goods at B, and deposits them in his warehouse there, his responsibility as carrier ceases ; for that is the termination of his duty as such.' A common carrier, it has been shown, is liable for losses by fire not occasioned by inevitable necessity, as by lightning ; whereas a warehouseman is not liable for any losses by fire, unless it be in consequence of ordinary negligence.* But if the' destination is marked out, and the carrier has nothing to do but to forward the goods on the earliest opportunity to the place indicated, he is responsible, as common carrier, for any loss or damage that may happen to the goods in the warehouse, as they are then in transitu, in contemplation of law.^ (6) If the consignee, having no ware- house of his own, asks the carrier to keep the goods until he can conveniently send for them, the carrier's liability, as common car- rier, is at an end, and he thenceforth holds them only as a ware- houseman for hire, or a gratuitous bailee, according as he may or may not be paid for care and custody of them.^ A common carrier, therefore, when his responsibility as such is thus changed to that of a warehouseman, is in the same situaltion as if he had offered to deliver the goods at the residence of the consignee ; that is, he has fulfilled his contract as a carrier ; and if the hire is not paid, ' Ante, §§ 75, 131 - 135 ; Story on Bailm. § 446.] 2 Garside v. Trent Nav. Co., 4 T. R. 581. » Ante, §§ 75, 131 - 135. * Ante, Chap. III. » Forward v. Pittard, 1 T. R. 27; Goold v. Chapin, 10 Barb. 612. • See ante, § 295 ; Webb In re, 8 Taunt. 449. (a) As to what is necessary to change the liability of a carrier into that of a warehouseman, see Chicago R. u. Warren, 16 111.502; Porter v. Chicago B., 20 111. 407 ; Michigan Central R. v. Hale, 6 Mich. 243. (6) See anti, § 131. CHAP. VIII.] DELIVERY BY. 273 he is not bound to part with the possession of the goods ; but he may lawfully take them back to his warehouse or place of business, and he holds them thenceforward, not as a common carrier, but as a bailee for hire ; or if by agreement he is not to charge warehouse rent, as a gratuitous bailee.^ In all cases of this description the material consideration is, whether the carrier retains the posses- sion of the goods, or is to perform any further duty either by cus- tom or contract, as carrier .^ § 305. It has been stated and shown to be the duty of the mas- ter of a vessel, under his engagement to deliver goods to the per- sons mentioned in the bill of lading or their assigns, to make an actual delivery to the proper person ; ^ that is, in the absence of any special contract or well-knov^n usage to the contrary.* The defendant, in Ostrander v. Brown,^ offered to prove that it was customary in the city of Albany for the captains of vessels freight- ed with goods for merchants in that place, to deliver them by put- ting them upon the dock, and giving notice to the consignees, who usually had cartmen to carry them to their stores, and that such delivery, with notice, was by custom considered a good delivery. Piatt, J., who delivered the opinion of the court, said : " In a case where the precise place of delivery is material, it may be proper to allow evidence of local usage. For instance," says he, " the usage at Havana is often proved to show that some species of cargoes, such as slaves, are to be delivered at the Moro Castle, and that other articles are delivered only on the wharves in the inner harbor." § 306. In Chickering v. Fowler,^ the action was an action of assumpsit upon the following contract, dated Newburyport: "Eeceived on board brig Fanny 93 barrels of onions, which I promise to deliver to Thomas Haven, of Portsmouth, he paying freight for the same five cents per barrel." Trial was had on the general issue. The brig, of which the defendant was master, it appeared, was going from Newburyport to Portsmouth, for freight to some Southern port, and she had only these onions on board as freight from Newburyport to Portsmouth. The defendant went ' Storr V. Crowley, 1 M'CIel. & Y. 136 ; Young v. Smith, 3 Dana, 91. " See ante, § 301 ; Gibson v. Culver, 17 Wend. 305. ' Ante, § 298, et seq. ' Ante, § 301, eZ seg. ' Ostrander v. Brown, 15 Johns. 39. ° Chickering v. Fowler, 4 Pick. 371 ; S. P. in House v. Schooner Lexington, N. Y. D. C, 2 N. Y. Legal Observer, 4. 18 274 LAW OF CARRIERS. [CHAP. VTO. with the brig to the pier wharf in Portsmouth, where vessels fre- quently go to deliver goods which they have on freight for persons in Portsmouth, and gave notice to Haven .that the onions were there for him. Haven told the defendant that he must deliver them at his (Haven's) wharf, or he would not receive them. The defendant, the master, refused to do this, and a day or two after put the onions on the wharf, where they remained two nights and, were frozen and injured. The plaintiff contended that the de^ fendant, both by the custom of Portsmouth, and by the general rules of law, was bound to deliver the onions at the wharf of the consignee, and that he was liable for his gross negligence in not taking reasonable and ordinary care of them. It appeared, that the goods were shipped by the plaintiff by the order of Haven. The court held, that a promise by a master of a vessel to deliver goods to a consignee does not require that he should deliver them to the consignee personally, or at a particular wharf, it being suf- ficient if he leaves them at some usual place of unlading, giving notice to the consignee that they are so left ; and if after such notice the consignee refuses to receive the goods, it is the duty of the master to take care of them for the owner, unless the consignee is under an obligation to receive them, when they will be at his risk ; and such facts are for the jury. § 307. In case for not delivering, according to the plairaiff's direction, an anchor sent by defendant's hoy, but by him left with the wharfinger (at the quay where the hoy usually discharged her cargo), who had paid the defendant the freight, and gave him a receipt for the goods delivered ; although it was proved that by the custom the hoymen never troubled themselves about the goods after their delivery at the wharf (except in cases of flour) ; it was held, " that such custom did not discharge the hoyman from his implied undertaking to deliver the goods according to the direction ; and the delivery to the wharfinger was not a deUvery according to the direction." ^ § 808. If the goods, after their arrival, are put on board of a lighter in the customary way, and the owner then takes exclusive custody of them before they are landed, the carrier is discharged from any subsequent loss.^ '' In the river Thames, in England, the ' Wardell «. Mourillyan, 2 Esp. 693. See Jeremj on Carr. 19, 65; Add. on Contr. 798, 810. » Strong V. Natally, 4 Bos. & P. 16. CHAP. Vm.] DELIVEBV BY. 275 liability of the master by custom continues whilst the goods are delivering into a lighter, sent by the consignee to receive them, until the loading is completed.^ In an action of assumpsit against the master of a ship, for not safely conveying and delivering a quantity of tallow to the plaintiffs in London, who were the con- signees, the plaintiff had sent a lighter to fetch the tallow from the ship, which had arrived in the Thames. Whilst the lighter was left lashed to the ship, with part of the tallow on board, it was cut from the ship, and part of the tallow stolen thereout; and although the defendant had told the lighterman that he had not hands enough to guard the lighter (to which no answer was returned) it was said by Lord Kenyon : " The custom of the river must un- doubtedly govern the parties. There might have been a special contract, limiting the defendant's duty, but he could not do that by any act of his own, without the consent of the other party." ^ But it has been much contested,* says Lord Tenterden, whether the master is by usage bound to take care of the lighter, after it is fully laden, until the time when it can be properly removed from the ship to the wharf ; ^ and at a trial, he says, on this question, it was held, that the master was not obliged to do this.* § 309. In England, when goods are brought by ships tiom. for- eign cowntries, the bill of lading is merely a special undertaking to ca,nj from port to port; and in such case it has i)een consid- eredthat, according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the ship- owner.5 (a) BuUer, J., in Hyde v. Trent and Mersey Navigation ' Jeremy on Carr. 66. ' Cafley v. Wintringham, Peake, N. P. Cas. 140. " Abbott on Shipp. 465 (5th Am. edit.). ' Eobinson v. Turpin, cited in Abbott, sup., as decided at Guildhall sit. after Trin. Term, 1805, Lord Ellenborough, C. J. This was an action by the owner of the goods against a lighterman, and the plaintiff obtained a verdict. At a former trial before Sir James Mansfield, C. J., the plaintiff had been nonsuited. But see Strong u. NataUy, ub sup. ' Abbott on Shipp. 463 (5th Am. edit.). (o) In Wilson v. London Steam Nav. Go., Law Rep., 1 C. P. 61, the bill of lad- ing provided that, on the ship being ready to unload the whole or any part of the goods (pipes of lemon-juice), the consignee should be ready to receive the same from the ship's side ; and in default the master was authorized to enter the goods at the custom-house, and land, warehouse, or place them in lighters at the risk and expense of the consignee. The consignee was not ready to receive the goods 276 LAW OF CAERIERS. [CHAP. Vm. Company ,1 says : " When goods are brought here from foreign countries, they are brought under a bill of lading, which is mere- ly an undertaking to carry from port to port." Ashurst, J., in the same case says : " The case oi foreign goods brought to this country depends on the custom of the trade, of which the persons engaged in it are supposed to be cognizant ; by the general cus- tom, the liability of ship-carriers is at an end when the goods are landed at the usual wharf." But this difference in the ingredi- ents necessary to constitute a sufficient delivery by the inland and foreign ship-carrier, seems not to be incidental to their respective characters, but to arise from the nature of their respective con- tracts ; the latter undertaking, by the bill of lading, to convey from port to port, is discharged by a delivery pursuant to the un- dertaking ; the former contracting to deliver to the consignee is bound to the performance of an actual delivery in accordance witli his contract ; though if he had only engaged to convey genera% from one place to another, a delivery at the latter place might discharge him, as that at the port does the ship-carrier ; in the case, for instance, where the land-carrier's warehouse is the place of delivery .2 § 310. In this country, the rule adopted in regard to foreign voyages seems to be that, in spch cases, the carrier is not bound to make a personal delivery of the goods to the consignee ; but it will be sufficient that he lands them at the usual wharf or proper place of landing, and gives due and reasonable notice thereof to the consignee.* § 311. In Cope v. Cordova, in the Supreme Court of Pennsyl- vania,* it was held that the master of a vessel arriving at the port of Philadelphia from a foreign port is not bound by the bill of lading to deliver the goods personally to the consignee ; and that the liability of the ship-owner ceases when the goods are landed on the usual wharf. Eogers, J., who gave the opinion of the court, said : " In unloading a vessel at the port of Philadelphia, ' Hyde v. Trent Nav. Co., 5 T. R. 389. « See arde, §§ 302 - 304. » Story on Bailm. § 545 ; 2 Kent, Com. 604. * Cope V. Cordova, 1 Kawle, 203. until part had been put on the wharf. Held, that the ship-owner was bound to de- liver the rest of the cargo, unless it would cause him expense and loss of time to change the mode of delivery which had been begun. CHAP. VIII.] DELIVERY BY. 277 it is usual, as soon as articles of bulk, such as crates, are brought upon deck, to pass them over the side of the ship and land them on the wharf. The owners station a clerk on the wharf, who takes a memorandum of the goods, and the day they are taken away, and this for the information of his employers. A manifest or report of the cargo is made by the master, and deposited at the custom-house, and the collector, on the arrival of the vessel with- in his district, puts and keeps on board one or more inspectors, whose duty it is to examine the contents of the cargo, and super- intend its delivery. And no goods from a foreign port can be un- laden or delivered from the ship in the United States, but in open day, between the rising and setting of the sun, except by special license; nor at any time without a permit from the collector, which is granted to the ' consignee upon payment of duties or securing them to be paid. The holders of a bill of lading are presumed to be well informed of the probable period of the ves- sel's arrival, and at any rate such arrival is matter of notoriety in all maritime places. The consignee is previously informed of the shipment, as it is usual for one of the bills of lading to be kept by the merchant, a second is transmitted to the consignee by the post or packet, while -the third is sent by the master of the ship, to- gether with the goods. With the benefit of all these safeguards, if the consignee uses ordinary diligence, there is as little danger in this country as in England and France of inconvenience or loss ; whereas the risk would be greatly increased if it should be the duty of the ship-owner to see to the actual receipt of the goods, and particularly in the case of a general ship with numer- ous consignments on board, manned altogether by foreigners unacquainted with the language at the port of delivery. I have taken some pains to ascertain the opinion and practice of mer- chants of the city on this question, which is one of general con- cern. My inquiries have resulted in this, that the goods, when landed, have heretofore been considered at the risk of the con- signee, and that the general understanding has been, that the lia- bility of the ship-owner ceases upon the landing of the goods at the usual wharf. I see no reason to depart from a rule which has received such repeated sanctions, from which no inconvenience has heretofore resulted, and which it is believed in practice has conduced to the general welfare. If the special verdict had found a uniform usage in the one way or the other, we should 278 LAW OF CAEEIEBS. [CHAP. VKI. have held ourselves bound by the custom ; for I fully accede to the principle that the mode of delivery is regulated by the prac- tice of the place. The contract is supposed to be made in refer- ence to the usage at the port of delivery. But if no usage had been found, we hold it to be equally clear that we should be governed by the general custom. The case finds that the con- signee obtained a permit for the landing of the goods, that they were landed on the wharf, that he was aware the master was em- ployed in discharging his cargo, and that the consignee sent his own porter to receive and take them away ; that he inquired for them but did not receive them. If, under such circumstances, the goods were lost, it was in consequence of his own negligence or his servant's. It was the duty of the porter, instead of merely inquiring, to stay till he had actually received the goods. It is beside the question to say that perishable articles may be landed at improper times, to the great damage of the consignee. When such special cases arise they will be decided on their own circnm- stances. This goes on the ground that the master has acted with good faith, and in the usual manner, and in such case it is the opinion of the court that the ship-owners are discharged." The learned judge concluded by saying that the court would wish to be understood as giving no opinion on the law which regulates the internal or coasting trade, to which he understood the case of Ostrander, in New York, to apply ; and he did not consider that the opinion of the court interfered with the principles of the case.i § 312. In England, when ships arrive from Turkey, and are obliged to perform quarantine before their entry into the port of London, it is usual for the consignee to send down persons at his own expense, to pack and take care of the goods ; and, therefore, where a consignee had omitted to do so, and goods were damaged by being sent loose to shore, it was held that he had no right to call upon the master of the ship for compensation.^ ' See Ostrander v. Brown, ante, § 300. In Hemphill v. Chenie, 6 Watts & S. 62, the court considered that the rule, as to landing goods upon the wharf, how- ever it might apply to maritime vessels in foreign trade, did not properly apply to transportation on our Western waters, or the internal or the coasting trade, (a) ' Dunnage v. Joliffe, before Lord Kenyon, C. J., at Guildhall Sit Mich. Term, 1789, cited in Abbott on Shipp. 465 (5th Am. edit.). (o) Usage to deliver goods on the wharf must be shown. Steamboat Sultana V. Chapman, 5 Wis. 454. CHAP. Vin.] , DELIVERY BY. 279 § 313. If it is customary for the carrier by water to carry merely from port to port, or from wharf to wharf, and for the owner or consignee to receive the goods at tlie vessel or at the wharf as soon as the arrival of the vessel is reported, it is of the essence of the rule that such is a good delivery, that due and rea- sonable notice should be given to the owner or consignee, so as to afford him a fair opportunity of providing suitable means to take care of, and carry off the goods.^ (a) Such notice comes in lieu of, and answers for, an actual delivery, where the goods, according to the usual course of business, are to be deposited in any partic- ular plaee.^ Carriers by ships and boats must stop at the wharf; railroad cars must remain on the track, and notice of the arrival and place of deposit, in these cases, comes in lieu of personal de- livery.^ The general rule is recognized in Fiske v. Newton, in New York,* to be, that a common carrier is bound to deliver the goods intrusted to him for conveyance, personally to the consignee at the place of delivery, with the qualification that, in certain cases where the transportation is by vessels and boats, notice of the arrival at the place of deposit is sufficient. (&) ' 2 Kent, Com. 604 ; Cope v. Cordova, ub. sup. ; Wardell v. Mourillyan, 2 Esp. 693 ; Quiggiu v. DuflF, 1 M. & W. 174 ; Packard v. Getman, 6 Cow. 757 ; Scholes V. Ackerland, 15 111. 474 ; Crawford v. Clark, lb. 561 ; ante, § 145. ' Gibson v. Culver, 17 Wend. 305. •Ibid. * Fiske V. Newton, 1 Denio, 45 ; and see Story on Bailm. § 545. (a) Barclay v. Clyde, 2 E. D. Smith, 95. In Howland u. Greeuway, 22 How. 491, goods were put into the custom-house at the port of destination, and the consignees paid the duties. The master had omitted to include the goods in his manifest, and by the law of the port they were confiscated and sold. The vessel was held liable, on the ground that the delivery contemplated by the contract, viz. a transfer of the property into the power and possession of the consignees, had not taken place. The court said : " The surrender of possession by the mas- ter must be attended with no fact to impair the title or affect the peaceful enjoy- ment of the property. tThe failure to enter the property on the manifest was a cause of confiscation from the event, and rendered nugatory every effort subse- quently to discharge the liability of the ship and owners." (i) A public notice that all goods, not taken away by consignees from a rail- road depot by twelve o'clock on the day after their arrival, will be sent to a certain warehouse, does not justify a railroad corporatioil in not giving notice of the arrival of goods, or entitle them to charge consignees with warehouse ex- penses, until the consignees have neglected within a reasonable time after notice to remove the goods. Home R. u. Sullivan, 14 Ga. 277. 280 LAW OF CARRIERS. [CHAP. Vm. .. § 314. Goods were forwarded by K., a carrier from London to Liverpool, addressed to the plaintiff (at the Isle of Man), " care of D. (the defendant), Brunswick Street, Liverpool." The goods were landed by K. on a public wharf at Liverpool, and on the same day notice was sent to the defendant of their arrival, and he signed the carrier's book containing an acknowledgment that the goods in question had arrived for him (the defendant). He caused them also to be entered in the clearance and manifest of a steam-vessel about to sail for the Isle of Man. It was proved also, that on former occasions, when goods had been brought by K. for the defendant, he had desired that they might remain at the wharf till he sent for them. The defendant never sent to the wharf for the boxes until six days after their arrival, when they were not to be found. In an action on the case against the defendant for negligence in not taking proper care of the goods, it was held that there was evidence for the jury of a delivery to, and accept- ance by, him.i § 315. The carrier is, of course, bound to continue his care of the goods until a knowledge of the notice is brought home to the owner or consignee.^ It has been held by the Supreme Court of Louisiana, that landing goods by the captain of a vessel on the levee at New Orleans, being the usual place of unloading, with notice in the newspapers to the consignees, is not sufiScient.^ (a) In Vermont it has been held that a person undertaking to carry lumber down a river to a certain cove, and being refused a place of deposit there, he left them near by in as proper a place as could be found, from which they were carried away by a flood, and lost, was responsible, because he did not continue his care until he had given notice to the owner, and until the owner had a reasonable time to assume the care over them.* (6) § 316. But the carrier may be permitted to prove, that the 1 Quiggin V. Duff, 1 M. & W. 173. = 2 Kent, Com. 604, 605 (6th edit.) ; Smith v. Nashua K., 7 Foster, 86 ; Price V. Powell, 3 Comst. 322. ' Kohn V. Packard, 8 La. 224. * Pickett V. Downer, 4 Vt. 21. (a) See also Segura v. Reed, 3 La. Ann. 695 ; Northern v. Williams, 6 La. Ann. 578. (6) The carrier is not liable for not storing the goods at the end of the jour- ney, if he acted in compliance with the directions of the shipper. Ide v. Sadler, 18 Barb. 82. CHAP. Vm.] DKLIVERY BY. 281 uniform usage and course of the business in which he is engaged is to leave the goods at his usual stopping-places, in the towns to which they are directed, without notice ; and if such usage has been of so long continuance as to justify a jury to find that it was known to the employer, the carrier will be discharged.^ A trans- portation company on Lake Champlain were intrusted with a package of bank-bills, to carry from Burlington to Plattsburg, which was directed to the cashier of the bank at the latter town, and they delivered the same to the wharfinger at the wharf at the latter town, at. which the boat touched, from whom it was stolen. In an auction by the consignors against the company for the value of the package, it was held, that it was competent for the com,- pany to prove, that it was their uniform usage to deliver such pack- ages of money, when intrusted to them,- to the wharfinger having the care of the wharf where the boat landed, without giving any notice to the consignee ; and that such usage was well known to the consignors.''^ In a subsequent case between the same parties, and before the same court, the court say : " Whatever hereto- fore may have been the views of the court upon this point, a ma- jority are now of opinion that it is not necessary to prove that the plaintiff had personal knowledge of the usage, in order to make it available to the defendants." ^ They considered that, upon this point, the case of Van Santvoord v. St. John * had a direct bear- ing upon the case at bar ; and they considered the doctrine of that case to be, that when goods are delivered to a carrier, marked for a particular place, without any directions as to their trans- portation and delivery, except such as may be inferred from ' Gibson v. Culver, 17 Wend. 305. ^ Farmers' Bank v. Champlain Trans. Co., 16 Vt. 52. " 18 Vt. 131. ' Van Santvoord v. St. Jolin, 6 Hill, 157. Whenever a -wharf is the usual place of receiving goods by a consignee, it is a sufficient place of delivery. Saw- yer V. Joslin, 20 Vt. 1 72. But in Ohio it -was held, that a local custom at Memphis regulating the mode of delivering the goods there, is not binding on shippers in Cincinnati, unless known to merchants and shippers there. Albatross V. Wayne, 16 Ohio, 513. In Delaware, the usage or custom. must have been of standing notoriety, as to warrant a jury to find, that the owner or consignee of the goods had knowledge of it ; because having such knowledge, it is presumed that the usage made part of the contract, and is equivalent to a direction given by the owner or consignee to the carrier to deposit the goods at the stopping-place. . .MeHenry v. Railroad Co., 4 Harring. Del. 448, the court citing as authority, Gib- son V. Culver, 17 Wend. 305. 1282 LAW OF CAERIEES. [CHAP. vm. the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business in which he is engaged, whether the consignor knew of the usage or not. § 317. As to the delivery of the baggage of passengers from stage-coaches, steamboats, railroad-cars, &c., the subject incident- aUy received a degree of attention in a former chapter, in treating of the different descriptions of property for the carriage of which persons become responsible as common carriers.^ The necessity of delivery of baggage to the passenger, at the end of his journey, by the common carrier, before his responsibility can cease, was there inculcated ; but the subject here deserves more particular attention than has before been bestowed upon it. § 318. Stage-coach proprietors were held bound, In the above case the purchaser from the carriers was Md that they were carriers, and he was thereby put on his guard. But it was contended in a case in Pennsylvania, that a wagoner had such a special property in the goods which were sent by him to be delivered to a certain person, as authorized him (the car- rier) to dispose of them ; and the ground taken was, that the party who places confidence in another should be the loser by his breach of faith, and not an innocent purchaser. But the court held, that although the carrier is vested by law with a special prop- erty, by virtue of which he may maintain an action against a wrong-doer, yet that special property does not impair the general property of the true owner, or give to the carrier an authority to sell. In Pennsylvania, there are no markets overt, by a sale, in which the property can be altered ; so that a sale by a carrier of igoods intrusted to him, in the street at Pittsburg, gave no addi- tional validity to the transaction.^ § 352. So, a carrier by sea, although he has, by the law mer- chant, a lien on goods carried by him for the payment of freight, yet he has no right, of his own mere motion, to cause a sale for the payment of freight ;*(&) and a carrier by sea and a carrier by land stand in the same relation to the owner of the goods.^ ' Crowley v. Cohen, 3 B. & Ad. 478 ; Van Natta v. Mutual Ins. Co., 2 Sandf. 490; Chase v. Washington Ins. Co., 12 Barb. 595. " Kitchell V. Vanadar, 1 Blackf. 35fi. ' Lecky !). M'Dermott, 8 S. & K. 500. The decision in this case confirmed in Eapp V. Palmer, 3 Watts, 178. * Hunt v.'Haskell, 24 Maine, 339. ' Saltus V. Everett, 20 Wend. 267. (o) London K. v. Glyn, 1 Ellis & E. 652. (6) A carrier has no right at Common Law to sell goods to enforce his lien. Briggs V. Boston K., 6 Allen, 246. See Staples v. Bradley, 23 Conn. 167. And 308 LAW OF CARRIERS. [CHAP. IX. § 353. If the carrier is instructed to sell the goods he under- takes to carry at a certain price, or to store them, without any stipulation as to payment of freight, he may demand the freight from the warehouseman on delivery ; but it will be a conversion, if, without such demand, he stores the cotton as his own ; and if he refuses to deliver the goods for any other cause than the non- payment of freight, he cannot avail himself of the want of a tender of the freight.^ § 354. It is clearly, however, an exception to the general rule, that the master of a ship in foreign parts may hypothecate or even sell the cargo, as well as the ship, when absolutely necessary to enable him to continue his voyage. In such case of necessity, it has always beein held, says Lord Tenterden, that the master, if he cannot otherwise obtain the money, may sell a part of his cargo to enable him to convey the residue to the destined port ; ^ and the same doctrine has been fully recognized by the courts of this country .3 In case of wreck or stranding, if the master have no means of transshipment, he has a right to sell, but the great ne- cessity of it must clearly exist.* The acknowledged rule is, that the mere shipment of merchandise does not confer on the master of the vessel authority to dispose of the goods, and in case of ne- cessity, the burden of proof showing the necessity lies upon the purchaser.® Where the consignee refuses to receive damaged goods of the carrier, and he sells them, he is accountable to the consignor or owner for so much as will indemnify him, and not paid by insurer.^ § 355. The usage of trade may also operate to take the case from the application of the general principle, that a sale by a car- rier vests no title ; as if it be the usage for the carrier to act as an 1 Blair v. Jeffries, Dudley, S. C. 59. ' ' Abbott on Shipp. 164; where, in consequence of damage to asbip during the voyage, it becomes impossible to prosecute the adventure, the master has autho^ ity to sell her for the benefit of all parties interested ; and a person employed by him to superintend the sale may lawfully pay over the proceeds to him, or to his order. Ireland v. Thomson, 4 C. B. 149. ' Abbott on Shipp., note, p. 165, referring to American cases. * See ante, note 4 to § 187, p. 188 ; U. S. Ins. Co. v. Scott, 1 Johns. 106. ' Saltus V. Everett, 20 Wend. 267 ; Myers v. Baymore, 10 Barr, 114. • Cassilay v. Young, 4 B. Mon. 265. if he keeps the goods to enforce payment of his lien, he cannot add a charge for keeping them. Somes v. British Empire Shipping Co., 3 H. L. Cas. 333. CHAP. K.] BIGHT OF POSSESSION. 309 agent for the sale of the goods intrusted to him for carriage.^ But the usage to -have this effect must have every requisite to give it vahdity ; that is, it must be long established, certain, uniform, and reasonable.^ § 356. But the right of common carriers, which to them is of the most importance, consists of one of the methods prescribed by the law for the recovery of their hire. They are bound, as has already appeared, to carry goods for a reasonable reward, unless their vehicle be already full, or the risk sought to be imposed upon them be extraordinary, or the goods be of such a nature as they cannot convey, or are not in the habit of conveying ; and in case of refusal are liable to an action. Still, if goods are brought to them for the purpose of conveyance, no action will lie against them for refusal to accept them, unless there was at the time an offer of the carriage price.^ If they undertake to carry them with- out having been previously paid, the law presumes that they con- sider the possession of the goods as a sufficient security for their expected remuneration ; and, in conformity with this presump- tion, it authorizes them to retain this possession at the end of the transit, until they have received satisfaction for their labor, &c. ; and this is the foundation of a lien.^ (a) If this security is ' infc, §§104-107. ' Rapp V. Palmer, 3 Watts, 178 ; and see ante, §106. " If a man," says Bay- ley, J., in Pickering t. Busk, 15 East, 44, " puts goods into another's custody, whose common business it is to sell, he confers an implied authority to sell " ; and the cause was decided on that ground. ' See ante, § 124 ; Cross on Lien, &c., 282 ; Jackson v. Rogers, 2 Show. 327; Lane v. Cotton, 1 Ld. Raym. 646 ; Edwards v. Sherratt, 1 East, 60 ; Riley v. Home, 5 Bing. 217 ; Batson v. Donovan, 4 B. & Aid. 21 ; Cole v. Goodwin, 19 Wend. 234. ' See Jones on Carr. 99 ; Story on Bailm. § 588 ; Crouch v. Great Northern K., 9 Exch. 556, 25 Eng. L. & Eq. 449 ; Morgan v. Congdon, 4 Comst. 551. It has appeared that there has been a degree of discrepancy in opinion as to whether private carriers, or carriers for hire, who are not common carriers, have a lien on the goods carried for the carriage. Ante, § 66. But it has long been held, that common carriers have a lien. Skinner v. Upshaw, 2 Ld. Raym. 752 ; and for American cases recognizing the doctrine, see Goodman v. Stewart, Wright, 216 ; (a) A carrier has no lien for the transportation of mailable matter over a usual mail route, such carriage being contrary to law. Hill v. Mitchell, 25 Ga. 704. Nor has he a lien for transporting goods belonging to the government of which te is a citizen. Dufolt v. Gorman, 1 Minn. 301. See also Briggs v. Light- Boats, 11 Allen, 157, where the subject of liens on government property is con- eidered at length. 810 LAW OF CAEEIERS. [CHAP. E. waived by a delivery of tlie goods before the payment of the hire, recourse must then be had to an action for its recovery ; or for the recovery of what is denominated freight. " It is clear," says Smith, " in regard to the remuneration to which a carrier is enti- tled, he must cafrry for a reasonable amount ; and if he insist on receiving more before conveying the goods, or before parting with them, an action for money had and received will lie against him for the excess." ^ (a) But it must be borne in mind, in relation to the obligation of a common carrier to receive goods, and to transport them, that his obligation is correspondent with the na- ture of his employment ; and if he be a carrier of only certain kinds of. property from one given place to another, he cannot he compelled against his will to become a carrier for intermediate places. 2 It is proposed to consider, 1st, the right of the carrier . before the goods are delivered over ; and, 2dly, his right after the possession has been parted with. § 357. First. — Liens are either by the Common Law, usages or agreement, and are of two denominations : the one a particular Hay ward v. Middleton, 3 Const. S. Car. 186 ; Slater v. Gaillard, 1 lb. 428. Al- though a consignee, on a bill of lading, acquires a property in the consignment, and may sell while the goods are in transit, and the goods have not been paid for, the carrier has a right to retain possession of the goods against the consignee until the carriage is paid for. Jordan v. James, 5 Ohio, 49. And see Bowman v. Hil- ton, 11 lb. 303. » Smith Mer. Law, 291, 5th ed. He cites Wyld v. Pickford, 8 M. & W. 443. If such goods are tendered to a carrier, and he gives notice to the owner that he will not be responsible for loss unless a more than ordinary insurance be paid, which the owner declines to pay, but leaves the goods to be carried; it appears that the carrier receives them on the footing of such notice, his liability becomes limited, and he is only bound to use the ordinary care of a bailee for reward. Ibid. And see per Parke, B., Fowles v. Great "Western R., 7 Exch. 700. = Thurmau v. Wells, 18 Barb. 500; and see ante, § 100, et seq., § 10e,etseq. And see Crouch v. Great Northern R., 11 Exch. 742, 34 Eng. L. & Eq. 573. (a) In Holford v. Adams, 2 Duer, 471, bonds valued at forty thousand dollars were carried by the Adams Express Company from New Orleans to New York. Compensation was claimed at the rate of one per cent on the value. Held, that as there was no express contract as to the amount of compensation, the company was only entitled to a reasonable compensation ; and that as by the terms of the contract the company was not liable for loss or damage arising from any other cause than the fraud or gross negligence of their servants, and as packages of great value were not treated with greater care than those of less value, there was no reason for enhancing the price in proportion to the value, unless a general, uni- form, and notorious usage was proved to this effect. CBAP.IX.] EIGHT OF LIEN. 311 01 specific lien, given by the policy of the Common Law, and the custom of the realm, and attacjiing only upon, the specific chattels, for the unpaid price, or carriage thereof, or for work and labor bestowed thereupon ; (a) the other, & general lien, authorizing detention of the goods, not only for demands arising out of the article retained, but for a general balance of accounts, relating to dealings of a like nature. The latter is an encroachment upon the Common Law, and has consequently been regarded by courts wi,th much jealousy. Hence it is that, in the absence of some general usage affecting the custom of the realm, or an express agreement between the contracting parties, or evidence to show that such was their common mode of previous dealing, a further extension of tlie general privilege has met with much discourage- ment, and a jury is warranted in negativing any right beyond the specific lien to which parties are entitled at Common Law.^ As it has been held, in New Jersey, a common carrier has a lien on goods in his possession, but primd facie only for the transporta- tion of those particular goods, and not for transportation of other goods, also, which do not remain in his possession.^ (&) § 358. To ;establish a general lien on the ground of usage, strong and satisfactory evidence must be adduced of ancient, nu- merous, and important instances in which the right has been exer- cised.5 Therefore, where the jury found that the plaintiffs had no knowledge of such usage, though there was proof, unopposed by other evidence, of its having been exercised by the defendants and ' •' Cross on Lien, &e. 15 ; Kushforth v. Hadfield, 6 East, 522. ■ ' Hartshorue v. Johnson, 2 Halst. 108. ' A doctrine which applies to commercial usage generally, ante, §§ 229, 301. (a) The right of the carrier to a lien is a personal one, and cannot be set up by a wrong-doer who has obtained possession of the goods, in defence to a suit against him by the owner. Ames v. Palmer, 42 Maine, 197. See also post, § 365, n. Where goods are carried over several successive routes, there is a custom sanctioned by law, for each carrier to collect his freight of the one to whom he delivers the goods, and the last carrier has a lien on them, subject to the exceptions stated, post, § 365, for his own freight and for the advances paid by him. Briggs v. Boston E., 6 Allen, 250 ; White v. Vann, 6 Humph. 70 ; Wells t>. Thomas, 27 Misso. 1 7, where there was a special contract made with the first car- rier to deliver for a less sum than the last carrier claimed a lien for. This does not, however, extend to advances wholly foreign to, and disconnected with, any cost or charge for transportation. Steamboat Virginia v. Kraft, 25 Misso. • 76. See also Travis v. Thompson, 37 Barb. 236. • (J) Leonard v. Winslow, 2 Grant, Cas. 139. 312 LAW OF CARRIERS. [CHAP. IX. various other common carriers throughout the neighborhood, for ten or twelve years before, and in one instance so far back as thir- ty years, the court refused to grant a new trial.^ When, on the other hand, tlie usage is general, and prevails to such an extent that all parties contracting may be supposed conusant of it, the usage then becomes evidence of a contract, or raises a presumption that the parties contracted with reference to it.^ § 359. As common carriers are bound to carry goods for a rea- sonable reward, it might reasonably be supposed that in their case a more favorable and extended construction than that above men- tioned would have been put upon the doctrine of lien. On the contrary, the lien of a common carrier for his general balance is never favored, unless arising in point of law from an implied agreement to be inferred from the general usage of trade, proved by numerous clear and satisfactory instances ; and a few recent instances are insufficient to establish the requisite proof of it.^ § 360. By express stipulation with their customers, carriers may undoubtedly secure to themselves a general lien ; and a pro- mulgation by a carrier of a notice to that effect, it is said,, might subject the goods of a customer cognizant of the notice, to be de- tained for a general balance due from him.* But in Kirkman v. Shawcross,* Lord Kenyon declared that common carriers have no right to say that they will not receive any goods but on their own terms. He said further, however, be that as it may, when a com- mon carrier has given notice that he would not be answerable for goods of a particular denomination unless he received a certain premium, and that notice has come to the .knowledge of the party suing, the courts have considered it as an agreement binding on both parties. And it is strongly implied in Rushforth v. Had- ' Rushforth v. Hadfield, ttb. sup. • Holderness v. Collinson, 7 B. & C. 212 ; Rex v. Humphrey, 1 M'Clel. & T. 191. • Rushforth v. Hadfield, uh. sup. • Cross on Lien, &c. 283. See Abbott on Shipp. 286. An agreement entered into by a number of dyers, pressors, &o. at a public meeting, that they would not receive any more goods to be dyed, but on condition that they should have re-- ipeotively a lien on those goods for their general balance, is good in law ; and any one who, after notice of it, delivers goods to either of those persons, must be coa- (idered as having assented to those terms, and cannot demand his goods until he has paid the balance of his general account. Kirkman t>. Shawcross, 6 T. B. 14- ' Eirkman v. Shawcross, ub. sup. CHAP. IX.] EIGHT OF LIEN. 313 field,^ that a common carrier may, on the same principle, create a general lien as against the person who employed him, by means of notice.^ 1 § 361. Where a carrier had given notice that all goods would be subject to a lien, not only for the freight of the particular goods, but also for any general balance due from their respective owners, it was held that this notice did not authorize him to retain the goods of the principal for a genera,l balance due to him from the factor, though they were addressed to the latter.^ Even if the notice in this case had been that all goods, to whomsoever belong- ing, should be subject to a lien for every general balance due from the person to whom they were addressed, it seems doubtful* whether it would have been of any avail ; for Holroyd, J., there said, that a factor cannot by any agreement, either express or im- plied from the course of dealing, subject the property of his con- signor and employer to the payment of his own debts ; and Best, J., doubted whether a carrier could make so unjust a regulation.^ » Kushforth V. Hadfield, 6 East, 224. ' Kent considers that it is a point still to be settled by judicial decision. 2 Kent, Com. 637. See note by Metealf to p. 67, Yelv. * Wright V. Snell, 5 B. & Aid. 350. ' Jones on Carr. 101. ' Doubts have been entertained how far this decision may have been affected, had the notice been more comprehensive in its terms, and included the goods, not only of the respective owners, but of every person, to whomsoever addressed ; and whether, in such case, the carrier might not have been entitled to a general right of detention against all parties. Cross on Lien, &c. pp. 283, 284. With the view to enable such enlargement of power, Mr. Chitty, in his Practice of the Law (vol. 1, p. 493), has suggested the expediency of introducing words to the effect, " that the goods of all persons dealing with the party in his trade, and whether belonging to the customer, or to any other person or persons, or in which he is in any respect interested, whether for a lien or otherwise, or which may be in the possession of the advertiser, or whether going to or from his manufactory or prem- ises, must be understood to be, and will be, subject to a general lien for all mon- eys due to the advertiser, as well from the customer as from any person or persons entitled to or interested in such goods." But it is considered (Cross on Lien, &c. p. 284) doubtful if such notice would be effectual. " To grant the validity of so extensive a claim, would be to allow, by special agreement, a power against third parties not recognized by the courts, even though sanctioned by immemorial custom (Leuckhart v. Cooper, 3 Bing. N. C. 99) ; for to give validity and effect to usage, it has been decided that it must be reasonable as well as ancient, and it can scarcely be contended, that the detention of the goods of the consignor, for the debt of the consignee, is either just or reasonable. Ibid. The principle of such decision should therefore, and probably would, regulate the judgment, were 314. LAW OF CARRIERS. [CHAP. IX. § 362. It has been decided that if there be an agreement for a general lien between the carrier and the consignee, this will not- affect the right of stoppage in transitu inherent in the consignor ; and therefore the consignor, upon giving notice of his intention to exercise this privilege, will be entitled to a redelivery upon the payment of the carriage price of the particular consignment!. As has already been illustrated, the delivery to the carrier is a qualified, not an absolute delivery to the consignee, and is good, to all intents and purposes, except that of defeating the right of the consignor to stop in transitu. It is such as to give the latter a right of resuming possession at any time before the goods come into that situation which gives the consignee a complete dominion over them.^ § 363. It is laid down by a late writer,^ and other elementary writers who have preceded him, that the obligation of carriers to receive and carry goods for hire exempts them, as in the case of innkeepers, from any necessity to inquire into the title of the par- ties delivering them ; and that for this reason they may retain them against the true owner until the particular carriage be paid, though the true owner prove that they were stolen from him by the person who delivered them to be carried. The only authority wliich has been generally relied on for this doctrine is the old case of Yorke v. Grenaugh, in the trial of which Lord Chief Jus- the question suggested to come before the court. The precautionary measure pro- posed in the form of notice may, at least, be pursued majori cauteld; but, to per- mit the annexation of terms so inconsistent with the general principle, that caiv riers are compellable to carry the goods of all customers, for reasonable reward, would at once be an abrogation of the rule, and a permissive power vested in carriers, which immemorial custom has not been able to establish in others.'' " I should doubt," observed Best, J. (Wright v. Snell, ub. su/j.), "if any form of words would be able to establish a liability of such kind. It is, however, suffi- cient (says he) in the case before the court, to say, that the plaintiff is the owner of the goods, and there being nothing due from him to the carriers, the words of the notice do not impose any liability upon him. If any question should arise, falling within the terms of the notice last given, it would he very Jit to consider iclieiher a carrier can make so unjust a regulation as is there attempted." The notice alluded to was, that all goods, from whomsoever received, or to whomsoever belonging, should be subject to a lien, not only for the freight of the particular goods, but also for any general balance that might be due from the person to whom they were consigned or addressed. • Oppenheim v. Eussell, 3 Bos. & P. 42. ' See ante, § S39, et seq. ' Cross on Lien, &c. 286. CHAP. IX.] EIGHT OF LIEN. 315 tice Holt presided;^ and as its authority has been in one in- stance repudiated in this country, it is proper it should be stated more circumstantially than it has been. The decision was, that if a horse be put up at the stable of an inn by a guest, the inn- keeper has a lien on the animal for its keep, whether the animal be the property of the guest or of some third party from whom it has been fraudulently taken, or stolen. It was excepted by the counsel that, " since the horse was brought to the inn by a stranger, the innkeeper cannot detain it for its meat against the right owner ; for it may be that this traveller was a wrong-doer or a robber." But the answer of the court was : " Supposing that this traveller was a robber, and had stolen this horse ; yet if he comes to an inn, and is a guest there, and delivers the horse to the innkeeper (who does not know it), the innkeeper is obliged to accept the horse ; and then it is very reasonable that he shall have a remedy for payment, which is by retainer. And he is not obliged to consider who is owner of the horse, but whether he who brings him is his guest or not." Lord Chief Justice Holt cited the case of an Exeter common carrier ; " where A stole the goods and delivered them to the Exeter carrier, to be carried to Exeter, the right owner finding the goods in possession of the car- rier, demanded them of him, upon which the carrier refused to deliver without being paid for the carriage. The owner brought trover, and it was held that he might justify detaining against the right owner for the carriage ; for when A brought them to him he Was obliged to receive them, and carry them ; and therefore, since the law compelled him to carry them, it will give him remedy for the premium due for the carriage." ^ • \ 364. The doctrine that a common carrier and a common inn- keeper may have a lien on property delivered to them, because the one is bound to receive goods which are offered for transpor- tiition, and the other is bound to receive guests with their effects, it has been said, rests upon the authority alone of the above case of Yorke v. Grenaugh.^ But it was held in Johnson v. Hill, at ' Xorke v. Grenaugh, 2 Ld. Kaym. 867. The Reporter says, the doctrine had always been maintained by Holt ; and that a common innkeeper may detain a horse brought by a wrong-doer against the true owner, he cites 3 Bulstr. 269, and 1 KoU. 449. The doctrine is stated thus, by Mr. Meitcalf, in his learned note in Yelverton, on the authority of Yorke v. Grenaugh, ul. sup. ' Pitch V. Newberry, 1 Dong. Mich. 1. 316 LAW OF CAERIEES. [CHAP. IX. nisi prius, in 1822, that if A, under color of legal proceeding, ■vrrongfuUy seize the horse of B, and take it to an inn where it is kept for several days, the landlord has a lien upon the horse for the keep, and may, therefore, refuse to deliver up the horse to B, until the keep is paid ; unless the landlord knew that A was a wrong-doer in seizing the horse.^ Then again, there is said to be an obvious ground of distinction between the cases of carrying goods by a common carrier, and furnishing keeping for a horse by an innkeeper ; that, in the latter case, it is equally for the hert- efit of the owner to have his horse fed by the innkeeper in whose custody he is placed, whether left by a thief, or by himself or agent ; in either case food is necessary for the preservation of his horse, and the innkeeper confers a benefit upon the owner by feeding him.^ § 365. In the Supreme Court of Michigan, in 1843, it was ex- pressly held, contrary to the reasoning of. the court in Yorke v. Grenaugh, and to the decision in the Exeter case there cited by Lord Chief Justice Holt, that the doctrine of caveat emptor ap- plies with the same force to common carriers as to other persons ; and that if common carriers in any way acquire possession of property without consent of the owner, they, like other persons, may be compelled to restore it to such owner ; and that the obli- gation of a common carrier to receive and carry all goods offered, was subject to the condition that the person offering the goods has authority to do so. The court reasoned (and it is submitted if there be not force in the argument) that if a common carrier is in all cases entitled to demand the price of carriage before he re- ceives the goods, and which, if not paid, he may refuse to take charge of them, and if he may reject goods offered by a wrong- doer ; he is bound to take care that the person from whom he re- ceives them has authority to place them in his custody. In this case the plaintiffs, by their agents, shipped goods at Port Kent, ' Johnson v. Hill, 3 Stark. 172. If a person is stopped with ahorse under suspicious circumstances, and the horse is placed at an inn by the police, the inn- keeper has no lien on the horse for its keep ; and if an auctioneer, by the direc- tion of the innkeeper, sell the horse for its keep, he is liable to be sued in trover by the owner of the horse. Binns v. Pigot, 9 Car. & P. 208. ' Fitch r. Newberry, ub. sup.; Abbott, C. J., in Greenway u. Fisher,! Car.&P. J90, simply says: "As to a carrier, if, while he has goods, there be a demand and refusal, trover will lie." He does not say but that a carrier may, in all cases, have a lien. CHAP. IX.] EIGHT OF LIEN. 317 on Lake Champlain, consigned to them at Marshall, Michigan, care of H. C. & Co., Detroit, by the New York and Michigan Line, who were common carriers, and with whom they had pre- viously contracted for the transportation of tlfb goods to Detroit, and paid the freight in advance. During the transit of the goods, and before they reached Buffalo, they came into the possession of carriers doing business under the name of the Merchants' Line, without the knowledge or assent of the plaintiffs, and were by them transported to Detroit, and consigned to H. P. & Co., of Buffalo, to the care of the defendants, and delivered to the defend- ants, who were personally ignorant of the manner in which they came into the possession of the Merchants' Line, and of the con- tract of the plaintiffs with the New York and Michigan Line; although they, and also H. P. & Co. were agents for, and part- owners in. the Merchants' Line. The defendants being ware- housemen, and forwarders, received the goods and advanced the freight upon them from Troy, New York, to Detroit. On demand of the goods by the plaintiffs, the defendants refused to deliver them, until the freight advanced by them, and their charges for receiving and storing the goods, were paid ; claiming a lien on the goods for such freight and charges. It was held, in an action of replevin brought for the goods, that the plaintiffs were entitled to the possession of the goods without payment to the defendants of such freight and charges ; and that the defendants had no lien upon the goods for the same.^ § 366, In the above case, the case of Buskirk v. Purington, in New York, was relied on as authority. There property was sold upon condition ; the buyer failed to comply with the condition, and shipped the goods on board the vessel of the defendants. On ' Fitch V. Newberry, 1 Doug. Mich. 1, and uh. sup. A common carrier who innocently receives goods from a wrong-doer, without the consent of the owner, express or implied, has no lien upon them for their carriage;, against the owner. No man can be divested of his property without his consent. Robinson v. Baker, 5 Cush. 137 ; Everett v. Saltus, 15 Wend. 474. (a) (a) Clark v. Lowell K., 9 Gray, 231. Nor has the carrier a lien in such a case for the freight paid by him to a previous carrier by whom the owner had di- rected them to be carried, the goods having been carried under a contract with a wrong-doer. Stevens v. Boston E., 8 Gray, 262. But if by a mistake of the consignor or his agent the goods are carried over a wrong route, the carrier has a hen for his own charges and for all prior charges paid by him. Briggs v. Boston K., 6 Allen, 246. See Nordemeyer v. Loescher, 1 Hilton, 499. 318 LAW OF CARRIERS. [CHAP. E. the defendants' refusal to deliver the goods to the owner, he brought trover, and was allowed to recover their value, al- though the defendants insisted on their right of lien for the freight.i § 367. There was a fraud committed upon the true owner of the goods in the case of King v. Richards, in Pennsylvania ; ^ and the decision of the court in that case was, that where A had delivered goods to a common carrier, which he had fraudulently obtained from the true owner, the carrier might prove, in an action against him by A, that the goods had been obtained from the true owner, and that, upon demand made, he had delivered them \xp to the latter. But in giving their opinion, by Kennedy, J., the court say, that it is sufficient in such cases for the bailee, that he is authorized by law to retain the goods in his possession until he is paid or tendered the amount of what he is entitled to for keeping or carrying them. So that, in this case, the doctrine laid down in Yorke v. Grenaugh is clearly recognized. The title of the true owner to recover seems indeed to have been con- sidered quite clear, in Yorke v. Grenaugh, if he had only, anterior to the commencement of his action, tendered to the defendani tlie money due for the keeping of the horse, in the. one case, or the sum due for the freight of the goods, in the other.^ § 368. The lawful possession of goods being once acquired for the purpose of carriage, the carrier is not obliged to restore them to the owner again, even if the carriage be dispensed with, unless upon being paid his due remuneration ; for by the delivery he has already incurred certain risks.* (a) If a person go to a coach ' Buskirk v. Purington, 2 Hall, 561. The decision in this case was confirmed in Collman v. Collins, lb. 569. ^ King V. Richards, 6 Whart. 418 ; and see the case cited ante, § 337, and the cases cited in connection with the point decided, § 336. ' In the Court of Queen's Bench, January, 1840, it was held, that where a person brings a carriage to an hotel, at which he stops as a guest, the hotel-keeper has a lien upon the carriage for its standing room, and any labor bestowed upon it ; the innkeeper is not bound to inquire whether the carriage really belongs to the guest, but if he received it hon& fide, lie may retain it against the real owner, however the guest may have obtained possession of it ; but whether he has a lien for the whole bill incurred by the guest, qucere. Turrill v. Crawley, 13 Q. B. 197. * Story on Bailm. § 685 ; Columbian Ins. Co. v. Ashby, 13 Pet. 331 ; Herbert V. Hallett, 3 Johns. Cas. 93. See ante, § 128. (a) See^orf, §393, n. CHAP. IX.] EIGHT OF LIEN. 319 ^office and direct that a place be booked for him by a particular coach, and that be done, and he leaves his portmanteau, the coach proprietor will have a lien on the portmanteau for sometliing, but not for the full amount of the coach fare ; but if the party merely leave his portmanteau while he goes to inquire if there be an earlier coach, and no place be actually booked, the coach proprie- tor has no lien at all.^ But cases of this sort depend much upon .the circumstances. A contract was made in South Carolina during the war, with a wagouer, to carry a load 'of cotton from Lancaster to Richmond, at a specified sum per hiyidred, for trans- portation. The carrier attended at the place, and while loading his wagon with the defendant's cotton, news of peace arrived, and he determined not to send the cotton, and made the plaintiff un- load. It was held, that an action would lie for the price of carry- ing the cotton.^ In one case it appears that the detention can only be for the amount incurred for carriage ; as where goods were taken by the owner from the carrier's wagon, it was held, that the carrier had no claim for booking ; ^ and consequently he could set up no lien before delivery. § 369. As the rights as well as the liabilities of carriers by land extend, in the absence of any statute to the contrary, to carriers by water, the owners or masters of general ships and ves- sels, both on Mie high seas and on navigable rivers and canals, are entitled to the same particular lien for the price of the car- riage of goods delivered to them for transportation ; and it is so both by the Common Law and by the written maritime codes of Europe.^ ,, § 370. But, according to the principle by which all liens by the Common Law are regulated, if the master of a vessel once part with the voluntary possession of the goods out of his own or his agent's hands, he loses his lien upon them, and is not authorized . by law to reclaim them.^ The intention to relinquish the posses- sion must, however, be clearly manifested. The captain of a ship was allowed a lien on a part of a cargo which had been removed into a lighter alongside of the ship sent by the vendee, but which ' Higgins V. Bretherton, 5 Car. & P. 2. ' Davis V. Crawford, 4 Const. S. Car. 401. " Lambert v. Robinson, 1 Esp.119. ' Abbott on Shipp., Pt. 4, ch. 2, p. 284. Ibid., p. 246 ; Artaza v. Smallpiece, 1 Esp. 23 ; Bigelow i;. Heaton, 4 Denio, 496. 320 LAW OF CARRIEKS. [CHAP. IX. the captain afterwards fastened to the ship's side, to prevent its final removal.! (a) § 371. Where the master of a ship, in obedience to revenue regulations, lands goods at a pg.rticular wharf, he does not thereby lose his lien on them for the freight. It is true, Lord KenyoA doubted whether the captain parted with his lien under such cir- cumstances ;2 but in Wilson v. Kymer,^ it was expressly held, that the lien of the ship-owner for freight continued after the landing of the cargo at the West India Docks, although he gave no notice to the company to retain the cargo until the payment of the freight. , In England, if goods are placed in the West India or Bast India Company's Dock warehouses, the shipmaster may give notice to those bodies to detain them until the freight be paid.* • Sodergren v. Flight, cited in Hanson v. Meyer, 6 East, 622. « Ward I). Felton, 1 East, 507. ' Wilson V. Kymer, 1 Maule & S. 157. * Faith V. East India Co., 4 B. & Aid. 630 ; Horncastle v. Farran, 3 B. & Aid. 497. The London Dock Act, 45 Geo. 3, c. 58, § 15, expressly reserves the lien for freight. By 6 Geo. 4, c. 107, § 134, if goods are landed and sold by the offi- cers of the customs, the freight not having been paid, the produce of the sale is applicable, in the first place, to its liquidation. Abbott on Shipp. 300, and Cross on Lien, &c. 291, u. (a) In Bags of Linseed, 1 Black, 108, the court held that the lien of a vessel for freigiht depends upon possession, and is lost by delivery ; but this important qualification of the rule is stated : " In cases of the kind above mentioned, it is frequently, perhaps more usually, understood between the parties, that transfer- ring the goods from the ship to the vfarehouse shall not be regarded as a wiuver of the lien, and that the ship-owner reserves the right to proceed in rem to en- force it, if the freight is not paid. And if it appears by the evidence that such an understanding did exist between the parties, before or at the time the cargo was placed in the hands of the consignee, or if such an understanding is plainly to be inferred from the established local usage of the port, a court of admiralty will regard the transaction as a deposit of the goods, for the time, in the warehouse, and not as an absolute delivery ; and, on that ground, will consider the ship- owner as still constructively in possession, so far as to preserve his lien and his remedy in rem." See also Sears v. Wills, 4 Allen, 21 2. Where several cargoes of coal, delivered by their owner upon the wharf of a railroad corporation, were successively carried over the railroad, and at the place of destination unladen, assorted, and deposited by the owner's servants in bins on the land of the corporation, adjoining the owner's land, and portions earned away and delivered to purchasers by the owner from time to tiilie, until he be- came insolvent, held, that the corporation had a lien upon the coal that remained for the wharfage and freight of all the cargoes. Lane v. Old Colony R, 14 Gray, 143. CHAP. IX.J RIGHT OF LIEN. • 321 . § 372. Where goods are not required to be landed at any par- ticular dock, and the common practice is to land them at a public wharf, and direct the wharfinger not to part with them until the eharges upon them are paid, in such case the wharfinger becomes the shipmaster's agent, and the goods remain constructively in the possession of the latter. ^ : § 373. But the delivery of a portion of several parcels of goods belonging to one owner and carried on the same voyage does not defeat a lien upon the remainder for the whole freight.^ (o) But if there be two contracts to carry, witli different termini to the Yoyage iu each contract, no lien attaches for freight under the one contract upon goods shipped 'under the other, and improperly detained on board by the carrier ; ^ for in this as in all other cases, no lien can be acquired by a possession which is unlawful ; and hence no lien attaches if the goods directed to one place be improperly carried to another.* § 374. An exception to the rulp, that a complete delivery will at all times divest the lien, is, that if the possession be put an end to hy fraud, the lien revives if possession be recovered.^ And a common carrier who is induced to deliver goods to the consignee by a false and fraudulent promise of the latter, that he will pay freight as soon as they are received, may disaffirm and sue the consignee for possession, in replevin. It is like the delivery of goods to a fraudulent purchaser, or to a purchaser who receives the goods with an intent not to pay, which will avoid the sale.^ ' Abbott on Shipp. supra. ' Abbott on Shipp. 377 ; Cross on Lien, 290. ' Bernal i'. Pim, 1 Gale, 17 ; Sodergren v. Flight, 6 East, 622. * Wallacfe u. Woodgate, Ryan & M. 193 ; and see Abbott on Shipp. 377. If the freight is all consigned to the same person, and the master make a delivery of part of the goods to the consignee, he may detain the residue even against a pur- chaser, iintil payment of freight of the whole. But if the goods are sold to dif- ferent persons by the consignee, and part is delivered, the master has not a lien upon the residue, so as to compel one purchaser to pay freight for what has been dytvered to another purchaser ; but only for what has been purchased by him- self. See Sodergren v. Flight, uS. su;j., and note 2 to p. 377 of Abbott on Shipp. (Am ed.). ' Bigelow V. Heaton, 6 Hill, 43 ; Ely v. Ehle, 3 Comst. 506. ' Bristol V. Wilsmore, 1 B. & C. 514 ; Ash v. Putnam, 1 Hill, 302, and the cases there cited. (o) Boggs V. Martin, 13 B.Mon. 239 ; Fuller v. Bradley, 25 Penn. State, 120 ; Lane j>. Old Colony R, 14 Gray, 143. 21 322 LAW OF CAKEIEES. [CHAP. DC. § 375. The right of lien is not confined to freight and merchan- dise, but it extends to the baggage of a passenger, for the recov- ery of his passage-money ; although the master has no lien on the passenger himself, or the clothes which he is actually wearing when about to leave the vessel.^ § 376. The owner of a ship retaining the possession of it has a lien on the cargo for the hire, under a charter-party? But it is necessary that the party so retaining should be legally in posses- sion of the ship ; for a person cannot have a lien upon the goods who has not in law the possession of them;^ and this depends upon the terms of the charter-party as explained by the intention of the parties apparent therein. By the stipulations contained in some charter-parties, the owners retain such a control over the 6hip as to be considered in the legal possession of the ship and goods during the voyage, by means of the master and crew as their servants ; and consequently, on arriving at its destination, the goods on board being in the eye of the law in their possession, they have a lien for the stipulated hire of the ship. On the other hand, there are to be found instances wherein the charter-parties have contained such apt and comprehensive words of demise that the possession has been thereby actually transferred from the owner to the charterer ; in which case not having the possession, the former can exercise no right of lien over the goods. On this ' Wolf V. Summers, before Lawrence, J., at Guildhall, 2 Camp. 631. In gen- eral, the law in relation to passage-money of passengers is the same as that re- specting freight. Howland v. The Lavinia, 1 Pet. Adm. 126. An innkeeper possesses only the right of specific lien for debts accruing contemporaneously with possession, and it was formerly considered, that he possessed not only a right of lien on the property of his guest, but a power of personal detention until pay- ment. But this preposterous doctrine, supported only by the obiter dictum of Mr. Justice Eyre, in the case of Newton v. Tring, reported in 1 Show. 269, and the yet weaker authority of a case mentioned by Mr. Wentworth, in his Precedents (see Cross on Lien, &c. 343), has since been overruled in the recent case of Sun- bolf V. Alford, 3 M. & W. 248. Carriers of passengers both by land and water, being liable as common carriers for the baggage of the passengers, and being bound to receive it, their right of lien on the baggage must of course be admitted. As to the liability of carriers of passengers as common carriers of baggage, see ante, § 107, et seq., 317, et seq. " Abbott on Shipp. 289 ; Cross on Lien, &c. 300. See the judgment of Mr. Justice Richardson in Christie v. Lewis, 2 Brod. & B. 442 ; Lane v. Penniman, 4 Mass. 91 ; Portland Bank v. Stubbs, 6 lb. 422. ■ » See Jones on Carr. 102 ; Saville v. Campion, 3 B. & Aid. 503 ; and see Ab- bott on Shipp, 289, et seq. CHAP. IX.], KIGHT OP LIEN. 323 account it is of much importance in every case to ascertain in whom the possession is, in order to ascertain who is entitled to the lien. -■§377. The- hroad principle formerly maintained that, in the case of a chartered ship, the charterer, during the existence of the charter-party, ■was, to all intents and" purposes, the owner of the ship, and that, therefore, when goods were put on board by him in that characterj the owner had no legal right to resume posses- sion of the ship until the goods were unloaded, and had conse- quently no right to detain the goods, has been much narrowed and qualified by subsequent decisions.^ The Common Law now construes charter-parties as near as may be according to the inten- tion of the parties, and not according to the legal sense of the terms of them. Where the ship is let for a term of years, and the lessee is to appoint and pay the master and crew, and provide for the repairs, the possession passes to him.^ But mere words denoting a demise of the ship do not necessarily preclude the con- clusion that the possession of the ship has continued in the owner himself. Thus, where the owner of a ship had entered into a charter-party with a freighter, by which the former " granted and to freight let" and the latter " hired and to freight took," for a Tojage out and home ; it was held that, taking the whole charter- party into consideration, the possession of the ship did not pass to the freighter, but remained in the owner, notwithstanding the words of grant used in its commencement; and that the mere circumstance of his having entered into an agreement with the charterer as to the mode by which he should be paid for freight did not divest him of his lien on the cargo ; and it made no dif- ference that he had delivered the homeward cargo to the consign- ees, and received the freight due upon the bills of lading, which was different from that due on the charter-party.^ § 378. On the other hand, although the charter-party contain no words of actual demise, there may be stipulations in it equiva- lent in their effect to an actual parting with the ship^ra hac vice.^ ' Cross on Lien, &o. 301 ; and see Hutton v. Bragg, 7 Taunt. 14, since over- ruled ; Saville v. Campion, 2 B. & Aid. 503, and Christie v. Lewis, 2 Brod. & B. 410, and Abbott on Shipp. 290 - 298. ' Fowler v. Kymer, 3 East, 396, and cited in Abbott on Shipp. 290 ; and see ante, §§ 89, 147. ' Christie v. Lewis, 2 Brod. & B. 410. ' Newberry v. Colvin, 1 Cromp. & J. 192, 7 Bing. 190, overruling S. C. nom. Colvin V. Newberry, 8 B. & C. 166 ; and see Abbott on Shipp. 298, 299. 324 LAW OF CARRIERS. [CHAP. K. It is, in fact, to be regretted, upon a review of all the authorities respecting the ship-owner's lien for freight, " that great uncer- tainty has been introduced, by their almost irreconcilable conflict, into the construction of contracts of charter-party. The Mari- time Law, so far as it relates to the owners and masters of ships, is founded upon the principle that the master is the servant of the owner. As such servant the master is intrusted with authority over the property in his charge much more extensive than that which the lessee of a vessel for a voyage or term could have power to delegate. By the Common Law, also, he possesses the same authority. By the master's contract with the sub-freighters, the' owner of a chartered ship is bound, — by his bottomry bond, the ship itself may be pledged to an extent much beyond the interest of the charterer ; to him is intrusted the certificate of registry ou which the names of the proprietors and the encumbrances on their property in the ship appear, — for losses occurring through his misconduct, and that of the mariners engaged by him ; the ' owners ' are responsible ito the extent of the value of the ship and her freight ; and yet, when it becomes necessary to enforce the Common-Law security for that which alone makes the ship valuable to the owner, — the freight earned by her, — by dint of subtle distinctions between the contract of locatio rei et operarum and the contract of locatio operis, the possession of the master is made out not to be the possession of the owner." ^ § 379. This highly vexed question, and so important in its con- sequences to the claim of lien, and the responsibilities of owner- ship, depending on the inquiry whether the lender or hirer under a charter-party be the owner of the ship for the voyage, it is a dry matter-of-fact question, who, by the charter-party, has the posses- sion, command, and navigation of the ship. If the general owner retains tlie same, and contracts to carry a cargo on freight for the voyage, the charter-party is a mere affreightment, sounding in covenant ; and the freighter is not clothed with the character or legal responsibility of ownership. The general owner, in such case, is entitled to the freight, and may sue the consignee on the bills of lading in the name of the master ; or he may enforce his claim by detaining' the goods until payment, the law giving him a lien for freight. But when the freighter hires the possession, command, and navigation of the ship for the voyage, he becomes ' Abbott on Sliipp. 300, 301 (7th Eng. edit, by Shee). CHAP. IX.] EIGHT OF LIEN. 325 the owner, and is responsible for the conduct of the master and mariners ; and the general owner has no lien for the fx-eight, be- cause he is not the carrier for the voyage. This is the principle declared and acted upon in the greatly litigated and ably dis- cussed case of Christie v. Lewis.^ And it is the principle de- clared by the Supreme Court of the United States in Marcardier v. The Chesapeake Insurance Company,^ and Gracie v. Palmer.^ (a) § 380. Although the exercise of the ship-owner's right of lien may be upheld in cases of doubtful construction, an express con- tract is the most sure ground upon which that right can rest.* He may reserve that right to himself by a full and unequivocal declaration of intention in the charter-party, that he shall retain the right of lien upon the lading of the vessel. This express con- tract amounts, in fact, to a covenant on the part of the charterer, that, whatever may be the legal operation of the charter-party, as between themselves, the charterer's possession of the ship shall be the possession of the owner, so far as the right of the latter on the cargo is in any way concerned.^ And if such lien be expressly reserved "by a charter-party, it attaches on the goods, though as- signed by the charterer previous to their conveyance. Thus, ■where it appeared that the owner of a ship had made such reser- vation, and the charterer had purchased the goods and put them on board, and subsequently transferred them, with a stipulation that they should be conveyed to their destination, it was held that even against an indorsee of the lading, they were subject not only ' Christie v. Lewis, ub. sup. ' Marcardier v. Chesapeake Ins. Co., 8 Cranoh. 39. ' Gracie v. Palmer, 8 Wheat. 605 ; Note by Mr. Shee to Abbott on Shipp., p. 302 (5th Am. edit.). And see the oases of the Soh. Volunteer, 1 Sumn. 550 ; Certain Logs of Mahogany, 2 lb. 589 ; Ruggles r. Bueknor, 1 Paine, 358 ; and other cases cited by the American editors to Abbott on Shipp. (5th Am. edit.) note to p. 289. * Abbott, &c. supra. ^ Cross on Lien, 306. ^ (o) See Bags of Linseed, 1 Black, 108 ; Campbell v. Perkins, 4 Seld. 430. In Foster u. Colby, 3 H. & N. 704, 715, the court, per Pollock, C. B., held that, " A bond fide indorsee for value of the bill of lading, having no knowledge or notice of the charter-party, or that the cargo was subject to Ken for any freight except that mentioned in the bill of lading, and not acting coUusively, is entitled to the goods on payment of the freight stipulated for in the bill of lading, and is not affected by the greater liability of the indorser, supposing such liability to exist." See also Gilkison v. Middleton, 2 C. B. n. s. 134. 326 LAW OF CAERIEES. [CHAP. K. to that particular freight, but to the ship-owner's lien for a bal- ance due to him under the charter-party, whether possession of the ship was, by the charter-party, completely out of the ship- owner, and vested in the charterer, or not.^ (a) § 381. No lien exists by virtue of unliquidated damages. Where the freighter of a ship, for instance, covenanted that, if she should not be fully laden, he would not only pay for the goods on board, but for so much also in addition, as the ship would have carried, for which he had before stipulated to pay freight accord- ing to the different rates for three descriptions of goods ; it was held, that the ship-owner had no lien upon the goods actually on board for the amotmt of dead freight ; in other words, for the compensation in "damages, which he was entitled to for the freighter's breach of contract in not putting a full loading on board, which damages were unliquidated.^ (&) § 382. In replevin for tobacco, it appeared, that an agreement was entered into between A. M. and H. G. to execute a charter- party for a vessel, the defendant, captain, from B. to A., but which charter-party was not executed. That H. G-. put the tobac- co on board the vessel, and afterwards sold it to the plaintiff, and gave an order for it on the defendant, who refused to deUver it, but insisted that the cargo should be completed, and that the vessel should proceed to perform the voyage, and that the freight should be paid, which H. G. and the plaintiff refused to do. It was held, that .the defendant had no lieii on the tobacco for freight, no freight being in fact due before the commencement of the voyage ; and that, if an injury had been sustained by the owner of the vessel, in consequence of the violation of the contract ' Small V. Moates, 9 Bing.^579, and cited in Abbott, &c., supra. ^ Phillips V. Rodie, 15 East", 546, and cited in Abbott on Shipp. 286, and Cross on Lien, &c. 307. (a) See Kern v. Deslandes, 10 C. B. n. s. 205 ; The Salem's Cargo, 1 Sprague, 389. (6) In Kerford v. Mondel, 5 H. & N. 931, the charter-party provided that the master might sign bills of lading without prejudice to the charter-party, and that there should be a lien for dead freight on goods to be laden on board. The mas- ter signed bills of lading by the terms of which the goods were deliverable " on payment of freight and carriage as agreed." Held, that there was no lien on the goods for dead freight. See also Pearson v. Gdschen, 1 7 'C. B. N. s. 352 ; Fry ». Chartered Bank of India, Law Kep., 1 C. P. G89. CHAP. IX.J BIGHT OF LIEN. 327 on the part of H. G., the proper remedy was to be sought by an action against him for the unliquidated damage.^ § 383. Nor will a mutual obligation in a penal sum on the parties, the ship, the tackle, or the merchandise consigned, alter the rights of the owner in this respect, so as to entitle him to a right of lien on breach of the covenants contained therein. The lien at Common Law exists only in -respect of freight actually earned by the arrival of the goods at the stipulated place of des- tination. Covenants, therefore, for demurrage, (a) or for provid- ing a full cargo, cannot be enforced by the specific remedy of lien, though the charter-party contain such penal clause. The remedy for such matters rests entirely in covenant, and the mere penal clause will not extend the right of lien. If it be the intention to create such right, it must be by express provision, that the ship- owners shall have a right to detain the goods which shall be brought home, until all their demands under the covenants are satisfied ; inasmuch as a lien may be extended or wholly excluded by particular contract.^ § 384. Lien attaches, whether payment of freight is to precede or be concomitant with delivery of the cargo. By stipulations in ' Burgess v. Gun, 3 Harris & J. 225. (b) ' In the case of Birley v. Gladstone, an entire ship was chartered for a voyage out and home, and by the terms of the charter-party, the merchant covenanted to pay for the homeward cargo at certain rates per ton, on delivery of the cargo at Liverpool, by bills at three months ; to load a full cargo and to pay demurrage, and he bound the goods to the performance of his covenants. The Court of King's Bench decided, that the owner could not detain the goods, either for the freight of such as were put on board but afterwards relanded by compulsion, or ifor dead freight, or for demurrage. A bill was afterwards filed in Chancery, for the purpose of obtaining a declaration, that the ship-owners were entitled to a lien in equity ; but the Master of the Rolls, Sir William Grant, dismissed the bill ; and in the course of his judgment he said : " There can be but one right construction of the clause ; and if it could be said that the Court of King's Bench had ill- construed it, this is not a court of appeal in which their decision can be corrected. It was asked, what effect the clause could have, if it gave no lien either in law or equity ? A court of equity is not bound to find an equitable effect for a clause, merely because the construction which a court of law has put upon it would leave it inoperative. In truth, it has been copied from foreign charter- parties, with.very little consideration of the effect that might be allowed to it in the lawof this country." Birley v. Gladstone, 3 Maule & S. 205, and 2 Mer. Ch. 401. And see Cross on Lien, &e. 307, and Abbott on Shipp. 286. (a) See Crommelin v. New York K., 10 Bosw. 77. (i) See^os(, § 393. 328 LAW OF CARRIERS. [CHAP. IX bills of lading that the goods shall be delivered to the consignees, they paying the freight, the delivery of the cargo and the pay- ment of freight are concomitant acts, which neither party is obliged to perform, without the other being ready to perform the correlative act. (a) Where the owner of the vessel covenanted to deliver the cargo agreeably to bills of lading, and the freighters covenanted to pay one thifd of the freight in cash on arrival, and the remainder on delivery of the cargo, by good bills of exchange at four months' date ; and the captain landed the goods in Ms own name, and offered them to the freighter at one delivery, on receiving the stipulated freight ; it was held, that the owner had a lien on them until such bills were produced by the freighter.^ § 385. Notwithstanding, therefore, the opinion which seems to have been formerly entertained,^ that wherever there was a special contract between the parties, no lien could exist, the doc- trine does not now prevail.^ It was examined with great care by the court (as it involved the consideration of several ancient authorities) in the case of Chase v. Westmorei^ and in the judg- ment delivered, after advisement, by Lord Ellenborough, was repudiated, and expressly declared to be contrary to reason and the established principles of law. In Pinney v. Wells, in Con- necticut,^ the court declare, that the rule may now be consid- ered as settled, that a lien may exist, although there is a special contract. § 386. The existence, therefore, of a special contract between a common carrier and his employer, regarding the services to be performed, and the compensation to be paid, does not deprive the former of his lien, unless there is something' in that contract incon- sistent with such lien. In other words, no claim to the possession ' Yates V. Mennell, 2 Moore, 297 ; and see Tate v. Meek, lb. 278; Tates v. Railston, 8 Taunt. 293 ; and Abbott on Sliipp. 293, 294. ' See opinion of Williams, J., in Pinney v. Wells, 10 Conn. 104, and opinion of Lord Ellenborough in Chase v. Westmore, 5 Maule & S. 180. " Ibid., and note to Metoalf's edit, of Yelv. 67 a. • Chase V. Westmore, ub. sup. ' Pinney v. Wells, ub. sup. By the old authorities, says Kent," no lien existed in cases of special contract for the price, but those authorities have been over- ruled as contrary to reason and the principles of law ; and it is now settled that it exists equally, whether there be, or be not, an agreement for the price. 2 Kent, Com. 634. (a) Adams v. Clark, 9 Cush. 215. «HAP. IX.] BIGHT OF LIEN. 329 of goods can be set up which conflicts with the terms of the con- tract, (a) Credit given, by the contract, to the employer for the price of transportation, beyond the time when the goods trans- ported are to be delivered and placed out of the carrier's control, is inconsistent with a lien.^ Lord Bllenborough declared a lien to be wholly inconsistent with a dealing on credit, and maintained that it could only subsist where payment is to bo made in ready money, or there is a bargain that security shall be given the moment the work is completed.^ , § 387. In Chandler v. Belden, in New York,^ the defendant agreed to transport salt from Turks Island to New York, and by -the terms of the contract five hundred dollars were to be paid in advance, and the balance in three equal payments at thirty, sixty, and ninety days after its arrival in New York. The five hiindred dollars having been paid, the defendant claimed a lien for the balance of the freight. But the court denied that a lien existed, and held, that it could not be enforced, where the parties had ex- ■ > Ibid. ^ ' Eaitt V. Mitchell, 4 Camp. 149. Where a solicitor took the notes of an ex- ecutor of his employer, payable in three years, it was held, that, by necessary implication, he agreed to give up the papers and rely upon the security ; and. the Lord Chancellor said, that if a lien commenced under an implied contract, and afterwards a special contract was made for payment, in the nature of the thing, one contract destroys the other. Cowell v. Simpson, 16 Ves. 276. The same principle is recognized in Crawshay v. Homfray, 4 B. & Aid. 50. 'Chandler v. Belden, 18 Johns. 157. (a) In The Kimball, 3 Wallace, 37, the vessel was chartered for a round • voyage from New York to Melbourne, Calcutta, and Boston. A part of the charter money was paid in advance, the balance was " payable, one half in five, and one half in ten days, after discharge of homeward cargo." While the vessel ■was at sea the charterer, at the request of the owner, gave him his notes for ten thousand dollars, drawn so as to be payable near the time when it was expected the vessel would arrive. They were given for the accommodation of the owner, and were to be held over or renewed in case they fell due before the vessel reached home. The vessel arrived about five weeks before the notes fell due. Held, that there was no waiver of the lien of the owner. See Tamvaco v. Simp- son, Law Eep., 1 C. P. 363 ; Poynter v. James, Law Kep., 2 C. P. 348! In Kirohner v. Venus, 12 Moore, P. C. 361, aflirming How v. Kirchner, 11 lb. 21, and dissenting from Gilkison v. Middleton, 2 C. B. n. s. 134, and Neish v. Graham, 8 Ellis & B. 505, it was held that an agreement by the bill of lading that freight should be payablfe in Liverpool one month after the vessel should sail from there on a voyage for Sidney, " vessel lost or not lost," took away from the master the right to retain the goods on arrival at Sidney for the unpaid freight. 330 LAW OF CAEEIEBS. [CHAP. K. pressly regulated the time and manner of paying freight, by stipu- lation in a charter-party ; especially, if the cargo is to be delivered before the period of payment arrives ; Spencer, J., saying that such an agreement was an express renunciation of the right to insist on freight before the cargo was delivered. § 388. In Pinney v. Wells, before referred to,^ A, a manu- facturer, and B, a common carrier, entered into a contract, ia May, 1838, wherein it was stipulated, that B should transport 1,500 tons' of coal belonging to A from Philadelphia, and deliver it at CoUinsville, in Connecticut ; that A should pay B for this transportation 1 4.37|- cents per ton ; that A should have the privilege of giving his notes payable at the Hartford Bank, in- stead of paying the cash ; that all the notes so given previous to the 1st of August, 1833, to be payable in four months, and all given after that time to be payable in three months from the dates thereof. Whereupon B immediately commenced the trans- portation of the coal under the contract, and before the 10th of September, 1833, had transported from Philadelphia to New Haven 1,276 tons, of which he had transported 753 tons from Nevr Haven to Avon, and 623 tons from Avon to CoUinsville, when A failed, and made a general assignment of his property^ including the coal at New Haven and Avon, in a course of transportation, in the possession of B ; A at different times, between the 28th of June, 1883, gave B his notes pursuant to the contract, to the amount of $ 3,450, which were outstanding at the time of A's failure, and remained unpaid. It was held, that this was substan- tially a contract upon which B gave A credit, and thereby B waived the benefit of a lien on the coal in his possession, either for the transportation of the whole or the parcels not delivered. It seemed to Williams, J., (in whose opinion all the judges present concurred,) apparent, under the circumstances of the case, that the contract in question was utterly inconsistent with a lien in the carrier ; and he remarked, that " if, by the contract originally made, they (the carriers) waived any claim for freight, and instead of leaving their payment to the implication of law, they contracted to give a credit for the freight, then, whether they had parted with the possession or retained it, they must look only to the contract they had entered into for their secur- ity." ^ ' Pinney «. Wells, 10 Conn. 104. CHXP. IX.] EIGHT OF ACTION FOR FEEIGHT. 331 § 389. It may distinctly appear, by the terms of a charter- party, that the owner of the ship has been content to trust to the personal responsibility of the merchant, and by fixing a spe- cific time of payment, before or after delivery, to waive his right of lien.^ . § 390. The principle above considered has likewise been ex- tended to cases where there was no express agreement to give icredit, but where, by the usage of trade, a credit might be claimed ; as where a ship was taken to a dock to repair, and great expenses were incurred by the shipwright ; it being proved, that, by usage, the owner of the ship might demand a credit, it was held there was no lien.^ And again, where goods were landed upon a wharf in October, and by usage, wharfage was not payable until Christmas, it was held there could be no lien.^ \ 391. Secondly, as to the right of the carrier to the recovery of his hire after the possession of the goods has been relinquished. He is compelled, in such event, to resort to an action at law to recover compensation for his service ; and the compensation, when thus claimed by a carrier by. water, has obtained the appel- lation of Freight.* This term, in its most extensive sense, is applied to all. rewards or compensation paid for the use of ships, including the transportation of passengers ; ^ (a) but, in the com- mon acceptation of the term, it means the price for the actual transportation of goods by sea from one place to another.^ Foreign writers consider passage-money the same as freight ; and as Lord Ellenborough has affirmed, except for the purposes of lien, it seems the same thing.^ ' Lucas V. Nockellsj 4 Bing. 729. ^ Raitt V. Mitchell, 4 Camp. 146. ' Crawshay v. Homfray, 4 B. &. Aid. 50. ' Beawes, Lex Merc. 118 ; Abbott on Shipp. 405 ; 3 Kent, Com. 219. Freight, in the general legal sense of the term, means all rewards, hire, or compensation, paid for the use of ships. Pothier, Traite de Charte-Partie, n. 1. See note 1 to Abbott, supra. . ' Giles V. The Cynthia, 1 Pet. Adm. 206. ° 3 Kent, Com. 218, and Pothier, supra. ' Mulloy V. Backer, 5 East, 321. Upon this resemblance the following case arose : The plaintiff agreed to convey the defendant, his family and luggage, from Demarara to Flushing. In the course of the voyage his vessel was taken (a) Brown v. Harris, 2 Gray, 359. 332 LAW OF CAKEIEES. [CHAP. IX. § 392. The amount of freight is most usually fixed by agree- ment between the parties ; but when there is no agreement for the price of conveyance, the carrier may recover his reward on a ■quantum meruit;'^ the amount to be ascertained by the usage of trade, and, the circumstances and reason of the case.^ But, in re- spect to the usage, 'when relied on, and sought to be established, it must be shown to be a generally recognized usage, and must not merely exist in the judgment and opinion of witnesses.^ In a case where two witnesses stated that the usual practice of the trade to Sydney was to consider steerage passengers as " cargo," and their passage-money as " freight " ; but could give no instan- ces of such construction within their own knowledge ; it was held that the evidence was insufiBcient to establish an usage of trade by an English brig and brought into Plymouth. The defendant and his family were set at liberty, and their luggage restored. And the action was brought to recover the passage-money for so much of the journey as was performed at the time of the interruption ; upon the principle, that the defendant had accepted his own liberation, and his luggage, at Plymouth, and did not require the plaintiff to carry him on to the end of his journey, which, it was contended, was a sufficient foundation for a promise to be implied. The vessel and cargo had been libelled in the Court of Admiralty for condemnation, but no decision as to the vessel, which was claimed by a British subject as his property, ^lad taken place at the commencement of the suit. Upon which fact, the case was ultimately decided. The action which presumed the freight pro rata to be in the plaintiff, was held to have been prematurely brought " pending the discussion of these rights in a court ■which has not only competent, but exclusive, jurisdiction of the question of prize, and which has power to deal with the freight as it thinks proper. Pending the suit in the Admiralty, no person had a right to restore the passenger's luggage, which in strictness was as much subject to the question of prize as the ship and cargo ; and the mere restoration of it, de facto, by an unauthorized hand, cannot affect the right of the captors pending the suit." MuUoy v. Backer, vb. sup. la this case, the action was brought pending the proceedings in the Court of Admi- ralty, and upon that ground was decided against the master, because possibly the Court of Admiralty inight order the defendant to pay to the captors. That passage-money and freight are governed by the same rules as between the pas- senger or freighter, and the ship-owner and master, see Moffat v. East India Co., 10 East, 468 ; Watsgn v. Duykinck, 3 Johns. 335 ; Howland v. The Lavinia, 1 Pet. Adm. 126 ; Griggs v. Austin, 3 Pick. 20. ' Bastard v. Bastard, 2 Show. 81 ; and see on this subject more fully, ante, §§ 124, 356. ' 3 Kent, Com. 219. If goods be sent on board a vessel generally, the freight must be according to that commonly paid for the like accustomed voyages. Beawes, Lex Merc. 190. ' Ante, § 358. CHAP. IX.] KIGHT OF ACTION FOE FREIGHT. 833 SO as to vary the primd facie meaning of the words " cargo" and "freight" in a written contract.^ § 393. Of course, to entitle a common carrier to recover for freight, it must appear that the property was not transported against the express orders of the owner ; nor will a receipt of the property by tlie owner alter the case.^ If there be an earnest given, and a verbal agreement only for freight, and the same be broken off by the merchant, according to the Rhodian Law, he loses his earnest ; but if the owners or master repent, they forfeit double.' But by the Common Law the party damnified may bring his action on the case and recover all damages on the agree- ment. A contracted with B for the carriage of 100 quarters of barley, and promised to deliver unto him the said 100 quarters at Barton Haven, to carry them for him, and for the carriage thereof did promise to pay him so much ; and B promised to carry the same for him, and accordingly brought his ship to the said haven, expecting there the delivery of the 100 quarters of barley; but A came not to deliver the same to him. Whereupon B brought his action of assumpsit for the freight, and upon the general issue pleaded had a verdict and judgment, which was affirmed upon a writ of error.* If goods are put on board a vessel in pursuance of an agreement to execute a charter-party, and while on board they are sold, and the purchaser refuses to pay the freight, the proper remedy by the owner of the vessel for the injury sustained by him, in consequence of the violation of the contract, is by an action. No freight being due on the cargo before the commence- ment of the voyage, there exists no right of lien.^ (a) ' Lewis V. Marshall, 7 Man. & G. 729. ' Schureman v. Withers, Anthon, N. P. 166. ' Beawes, Lex Merc. 190, cited in Jones on Carr. 138. ' Atkinson v. Buckle, 3 Bulstr. 152, and cited in Jones on Carr. 139. ' Burgess v. Gun, 3 Harris & J. 225. (a) It is held, in some cases, that the lien of a vessel for freight commences as soon as the goods are received on a contract of carriage. Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210 ; Keyser v. Harbeck, 3 Duer, 373 ; Thomp- son!). Small, 1 C. B. 328, 354; Thompson v. Trail, 2 Car. & P. 334 ; Bartlett v. Carnley, 6 Duer, 194 ; and see ante, § 368. In Bailey v. Damon, 3 Gray, 92, it IS held that the lien for freight does not commence until the ship breaks ground on her voyage. See also Curling v. Long, 1 Bos. & P. 634 ; Clemson v. David- son, 5 Binn. 392, 401 ; Burgess v. Gun, 3 Harris & J. 225 ; Blossom v. Champion, 37 Barb. 554. 334 LAW OF CAREIEES. [CHAP. K. § 394. With respect to liviTi^ animals, whether men or cattle, which may die during the voyage, without any fault or neglect of the persons on board the ship, if there be ho express agreement whether the freight is to be paid for the lading or for the trans- porting of them, freight is to be paid as well for the dead as the living. If the agreement be to pay freight for the lading them, their death cannot deprive the owners of the freight. If the agreement be to pay freight for transporting them, then no freight is due for those that die on the voyage, because, as to them, the contract is not performed. These distinctions are found in the Civil Law, and are adopted by all the writers on this subject.^ They have been laid down by Beawes as being acknowledged po- sitions in maritime law,^ of which Lord Mansfield has said,^ that it is the general law of nations, Non erit alia lex Roma, alia Athenis ; alia nunc, alia post hac ; sed apud omnes gentes, et om- ni tempore una eademque lex obtinebit.^ § 895. Freight may be due in respect of charter-party. These instruments, as has already been shown (although they sometimes contain an actual demise of the ship from the owners to the freighters), are often so framed that the legal possession of the * Abbott on Shipp. 409, 410, who cites Dig. 14, 2, 10 ; Roccus, not 76- 78 ; Molloy, B. 2, ch. 4. And so laid down in 3 Kent, Com. 225, 226. * Beawes, Lex Merc. ^ Luke v. Lyde, 2 Burr. 887.. * And see also Jones on Carr. 139. Live animals and the freight of them are not protected by a policy of insurance in general terms upon " cargo " and " freight," but are the subjects of a particular insurance. Wolcott v. Eagle Ins. Co., 4 Pick. 429. It should seem reasonable that parties, in insurance upon liv- ing animals, should make a particular agreement as to the extent of the risk to be borne. For it is not to be supposed that the premium for insuring a cargo of race-horses, elephants, or other valuable animals would not be greater than for insuring bales of goods. In tjje former case, the animals would be exposed not only to natural death; but to destruction by the breaking of their limbs from the rolling of the ship ; which would not occasion the least injury to the bales of merchandise. And the freight upon animals is estimated, sometimes upon the number laden on board, and sometimes upon the number delivered alive, but not upon such as die upon the passage ; unless there should be a particular agree- ment. Per Putnam, J., in delivering the opinion of the court in Wolcott v. Ea- gle Ins. Co., supra. In an action on a charter-party, £ 14 was to be paid in Eng- land for each passenger ordered on board the ship, and not for each passenger who should be brought to England ; and it was meant to be a compensation for pro- viding diet and accommodation for the passengers, which expense would, at all events, be incurred whether the ship arrived or was lost. Per Le Blanc, J., in Moffat V. East India Co., 10 East, 468. CHAP. IX.] EIGHT OF ACTION FOE FEEIGHT. 335 ship shall remain in the owner, and a mere right of lading the vessel shall be acquired by the freighter. A charter-party of this kind differs from a bill of lading only in extending to all the goods on board ; and a ship so chartered only in this, that the owner contracts to carry only for one person instead of several; and in such case the owner is to be considered as the carrier of tlie goods, and is subject to tire liabilities attaching on persons using that trade.^ § 396. The right of recovery of freight, according to the con- tract for that purpose in the charter-party, of course depends upon the terms in which the contract is expressed. These are so nu- merous and so varied in proportion to the different degrees of confidence mutually reposed in each other by the parties thereto, that the many decisions which are to be found in the books, aris- ing upon contracts for freight, constitute a large portion of the law of shipping.2 To point them all out would far extend the limits, and exceed the design of the present work. The general rule which courts have adopted with regard to the construction of charter-parties, as well as other mercantile instruments, is, that the construction should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade in general, and the particular trade to which the contract relates.^ § 397. It is often provided in charter-parties, that the goods shall be delivered agreeably to bills of lading to be signed by the master ; and the master, upon receiving the goods, signs bills of lading for delivery on payment of freight, or with words of simi- lar import, giving him a right to refuse to make delivery to the person designated by the bill of lading, without payment of freight. And, as it has sometimes happened, that the master has not insisted upon the exercise of this right, it has been much questioned whether the merchant-charterer was answerable for ' Jones on Carr. 120; 4 Com. Dig. 231, and tit. Merchant, E. 8; Saville v. Gampiou, 2 B. & Aid. 607 ; Christie v. Lewis, 2 Brod. & B. 427 ; Beawes, Lex Merc, and see ante, §§ 88, 89. • ' See Abbott on Shipp., Ft. 4, ch. 1, entitled « Contract of Affreightment by- Charter-party " J Ibid., Pt. 4, ch. 9, entitled " Of Payment of Freight " ; 3 Kent, torn. Lect. 47. A person who charters a vessel does not become owner for the tnp, when, by the terms of the charter-party, he pays a gross sum, the general owner furnishing the master and crew, and defraying the expenses of the vessel. Schooner Argyle v. Worthington, 17 Ohio, 460) ' Abbott on Shipp. 250. 336 LAW OP CAKEIEBS. [CHAP. IX. the freight; and it has been decided that he is answerable.i(a) A., a common carrier, received goods at Philadelphia for C. & T. at Lexington, and receipted for the same, to be delivered to H. & L. of Pittsburg, " on presenting this receipt and payment of freight." The goods- were delivered, but the freight was not paid, and H. & L. received the amount of the freight from C. & T., and afterwards failed. It was held that A. was entitled to recover the amount of the freight from C. & T.^ The court in this case con- sid'ered the point before them had long been settled. It was fully discussed in Shepard v. De Bernales,^ and ruled, upon the author- ity of Penrose v. Wilks,* Tapley v. Martin,^ and Christy v. Rowe,^ that the stipulation in a bill of lading, for delivery on payment of freight is introduced for the benefit of the consignor, or the party for whom the bonsignee is agent. If the agent should be faith^ less, the loss would fall on those who trusted him, and they ought to bear it, and this is a point conclusively established.^ (6) ' Abbott on Shipp. 414, et seq. ; and see 3 Kent, Com. 222 ; Spencer v. White, 1 Ired. 236 ; Layng v. Stewart, 1 Watts & S. 222 ; Barker v. Havens, 17 Johns. 234. " Collins V. Union Trans. Co., 10 Watts, 384. ' Shepard v. De Bernales, 13 East, 567. * Penrose v. Wilts, Abbott on Shipp. 415.- ' Tapley v. Martin, 8 T. K. 445. ' Christy v. Kowe, 1 Taunt. 300. ' Collins V. Union Trans. Co., 10 Watts, 384. (a) If the consignor is owner of the goods he is unquestionably liable for the freight. Holt v. Westcott, 43 Maine, 445. And he is now considered as liable for the freight, although he does not own the goods, and the carrier has waived his lien thereon. Wooster v. Tarr, 8 Allen, 270. See Jobbitt v. Goundry, 29 Barb. 509 ; Fox V. Nott, 6 H. & N. 630. In Thomas v. Snyder, 39 Penn. State, 317, coal was shipped to D. or his as- signs, " he or they paying freight " unto A., the owner of the boat. When the coal was delivered, neither A. nor any agent of his was present to receive the freight, and by the subsequent failure of the assignees it was lost. Held, on these facts, that the consignor was not liable for the freight. (i) If the consignee or indorsee of a bill of lading, containing the clause mak- ing the goods deliverable to him on payment of freight, accepts the consignment, there is either a legal presumption that he contracted to pay the freight (Scaife ». Tobin, 3 B. & Ad. 523; Dougal v. Kemble, 3 Bing. 383; Cork v. Taylor, 13 East, 399 ; Jesson v. Solly, 4 Taunt. 53), or evidence from which the jury would be warranted in finding a contract by the consignee to pay the freight. Sanders V. Vanzeller, 4 Q. B. 260; Kemp v. Clark, 12 Q. B. 647; Zwilchenbart v. Henderson, 9 Exch. 722, 25 Eng. L. & Eq. 560 ; Mdller v. Young, 5 Ellis & B. CHAP.lX.] EIGHT OP ACTION FOB FREIGHT. 337 § 398. A bill of lading is called by Lord Loughborough ^ the written evidence of a contract for the carriage and delivery of goods sent by sea, for a certain freight. Its peculiarity is, that, unless freight is wholly earned, by a strict performance of the voyage, no freight is due or recoverable. The contract of the ship-carrier is indivisible, and he can recover for no portion of the voyage that has been made until the whole is finished, and the goods have reached their destination ; unless the consignees, by a nev! contract, accept them short of the place of destination. The contract for the conveyance of merchandise by a bill of lading is, says Lord Tenterden, " an entire contract, and unless it be com- pletely performed by the delivery of the goods at the place of des- tination, the merchant will in general derive nQ^foenefit from the time and labor expended in a partial conveyance, and conse- quently be subject to no payment whatever; although the ship may have been hired by the month or week."^ The doctrine has ' Mason v. Lickbarrow, 1 H. Bl. 359, and see ante, § 223. ' Abbott on Shipp. 491. The same doctrine is laid down by Holt, Law of Shipp. 134; 3 Kent, Com. 219. 755, 34 Eng. L. & Eq. 92, reversing S. C. in Q. B., 5 Ellis & B. 7, 30 Eng. L. & Eq. 345. See Allen v. Bareda, 7 Bosw. 204 ; The Sob. Treasurer, 1 Sprague, 473 ; Swett V. Black, 2 Sprague, . If goods are consigned to A for B, A does not be- come liable for freight on receiving the goods. Amos v. Temperley, 8 M. & W. 798. See also Grove v. Brien, 8 How. 429 ; Miner v. Norwich R., 32 Conn. 91. Contra, Canfield «. Northern R., 18 Barb. 586 ; and see Hinsdell v. Weed, 5 Denio, 172. The liability of the consignee ceases on his indorsing the bill of lading, before delivery of the goods to him. Cock v. Taylor, 13 JEast, 399 ; Tobin v. Crawford, 6M. &. W. 235, 9 M. & W. 716 ; Dougal v. Kemble, 3 Bing. 383 ; Trask v. Da- vall, 4 Wash. C. C. 181 ; Meriam v. Funck, 4 Denio, 110, affirmed 1 How. Ct. App. 656. And the rule is the same, although the goods are put into the public store, under a general order to discharge the ship, before the indorsement of the bill of lading. Ibid. ; New York Nav. Co. v. Young, 3 E. D. Smith, 187. If an intermediate consignee is in any event liable for freight, he has the right to de- duct from the freight due the amount of any damage previously done to the goods. Davisu. Pattison, 24 N. Y. 317. The Bills of Lading Act of 18 & 19 Vict. c. Ill, provides that every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect'of such goods as if the contract contained in the bill of lading had been made with himself. Un- der this act it has been held, that the rights and liabilities of the consignee or indorsee pass from him by indorsement over to a third person. Smurthwaite v. Wilkins, 11 C. B. n. S. 842 ; Lewis v. M'Kee, Law Rep., 2 Ex. 37. 22 338 LAW OF CAERIEES. [CHAP. K. never been controverted, and is expressly asserted by Mr. Justice Story in the case of the ship Hooper.^ (a) § 399. As freight is the payment made for the conveyance of merchandise to its destination, it denotes the price of carriage and not of receiving goods to be carried; and hence, though a merchant may contract to pay a sum of money to a ship-owner for taking goods on board, yet such payment is not, strictly speaking, ' The Ship Nathaniel Hooper, 3 Sumn. 542. And see also Jordan v. Warren Ins. Co., 1 Story, 352 ; Saltus v. Ocean Ins. Co., 14 Johns. 138 ; Griswold tJ.New York Ins. Co., 3 lb. 321 ; Caze v. Baltimore Ins. Co., 7 Cranch, 358. (a) The general rule is, that the contract of the carrier is indivisible, and he can recover no freight unless all the goods are delivered ; and therefore where a contract was made to carry for a gross sum a variety of miscellaneous articles, unlike in kind, quality, and value, and bearing no definite proportion to each other in size or in cost of transportation, and part were lost by the fault of the carrier, it was held that the consignor was not liable for freight for any part. Sayward v. Stevens, 3 Gray, 97. But where freight is payable by the ton, by admeasurements, by the package, or barrel, or where different portions of the same cargo are shipped upon distinct and separate terms as to freight, fi'eight must be paid for what is delivered. Kitchie v. Atkinson, 10 East, 295 ; Christy v. Kow, 1 Taunt. 300; The Brig CoUeuberg, 1 Black, 170. If part is accepted, freight is due for that part. Hinsdell v. Weed, 5 Denio, 1 72. If part is deliv- ered and accepted, and the value of the rest is paid, freight for the whole is due. Hammond v. McClures, 1 Bay, 101 ; Hill v. Leadbetter, 42 Maine, 572. But this rule does not apply, unless the part is accepted, although the lost goods can be easily supplied at the place of delivery, and although the carrier is authorized by the terms of the contract to sell the goods for non-payment of freight, if not received by the consignee within a certain time, and he does sell them and makes up the deficiency to the purchaser. Sayward v. Stevens, 3 Gray, 97. And in such a case, if the owner brings an action for money had and received to recover the proceeds of the sale, freight cannot be deducted, but all expenses of the sale may be, and if the carrier in good faith makes up the deficiency to the purchaser he may deduct this also. Stevens v. Sayward, 3 Gray, 108, 8 lb. 215. If goods increase in bulk on the way, freight is due only on the amount shipped. Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460. If freight is pay- able per " net weight delivered," the ship-owner is only entitled to freight on the amount delivered. Coulthurst v. Sweet, Law Bep., 1 C. P. 649. In Buckle V. Knoop, Law Rep., 2 Ex. 125, the freight by the charter was "seventy- five shillings per ton of fifty cubic feet delivered." Cotton which had been pressed expanded on being taken out of the hold. Held, that freight was due on the amount shipped. This case was affirmed in the Exchequer Chamber, Law Kep., 2 Ex. 333. The fact that the master has receipted for more than he delivers does not entitle him to freight for any more than he delivers. Allen v. Bates, 1 Hilton, 221. CHAP. IX.] EIGHT OF ACTION FOR FREIGHT. 339 freight, (a) It is thus, that no freight becomes due until the voy- age is completely performed ; and in consequence of this rule, when a ship has been engaged to sail from one port to another, as from A to B, and back again, it may become important to know whether this employment is to be looked upon as consisting of one or two distinct voyages. The question is one in the solving of which courts are guided by the intention of the parties as col- lected from the words and subject-matter of their agreement.^' § 400. To perfect the right to freight it is not only necessary that the goods arrive at the place of destination, but there must be a delivery of them.^ (&) But although no action will lie for ' Smith, Merc. Law, 299 ; Blakely v. Dickson, 2 Bos. & P. 321 ; Andrew v. Moorhouse, 5 Taunt. 435 ; Masliiter v. BuUer, 1 Camp. 84 ; Crozier v. Smith, 1 Man. & G. 407 ; Abbott on Shipp. Pt. 3, ch. 7, s. 17 ; Brown v. Hunt, 11 Mass. 45 ; Locke B. Swan, 13 Mass. 75; Coffin v. Storer, 5 Mass. 252; Cheroit v. Barker, 2 Johns. 346 ; Penoyer v. Hallet, 15 Johns. 332 ; Blanchard v. Bucknam, 3 Greenl. 1. ^ Lane v. Penniman, 4 Mass. 91 ; Certain Logs of Mahogany, 2 Sumn. 589. (a) This principle has an important bearing on the case of freight or passage- money paid in advance," where the general rule is, that freight paid in advance is not 'earned, unless the voyage for which it is stipulated to be paid is fully per- formed, and the carrier is liable to a claim for reimbursement, if for any fault not imputable to the bailor the contract is not fulfilled. Minturn v. Warren Ins. Co., 2 Allen, 86 ; Benner v. Equitable Safety Ins. Co., 6 Allen, 222 ; Chase v. Alliance Ins. Co., 9 Allen, 311 ; Manfield u. Maitland, 4 B. & Aid. 582 ; Pitman v. Hooper, 3 Sumn. 66 ; Watson v. Duykinck, 3 Johns. 335 ; Brown v. Harris, 2 Gray, 359 ; Cope w. Dodd, 13 Penn. State, 33 ; Lawson v. Worms, 6 Calif. 365. If the non- fulfilment of the contract is caused by the fault of the bailor, freight cannot be recovered back. Giles v. Brig Cynthia, 1 Pet. Adm. 207, note ; Griggs v. Austin, 3 Pick. 20 ; Detouches v. Peck, 9 Johns. 210. This general rule may be varied or annulled by an express agreement that the money paid in advance on account of freight shall be deemed to be absolutely due to the carrier at the time of its prepayment, and not in any degree dependent on the contingency of the per- formance and entire fulfilment of the contract of carriage. De Silvale v. Kenr dall, 4 Maule & S. 37 ; Jackson v. Isaacs, 3 H. & N. 405 ; Hicks v. Shield, 7 Ellis & B. 633 ; Kinsman v. New York Ins. Co., 5 Bosw. 460. Such a stipulation should be expressed in terms so clear and unambiguous as to leave no doubt that such was the intention in framing the contract of affreightment. Chase v. Alli- ance Ins. Co., 9 Allen, 314. This agreement may be proved by parol, and, as a person laving no interest in freight cannot insure it, the fact that the shipper effected an insurance on freight is some evidence that the contract in the bill of lading had been modified by a special agreement that the freight should be at the shipper's risk. Atwell v. Miller, 11 Md. 348. (5) The payment of freight and the delivery of the goods are simultaneous acts. Freight is not due until the goods are ready for delivery, and the consignee 340 LAW OF CAERIERS. [CHAP. IX. the amount of freight until delivery, the master. (as has appeared) may retain the goods until the freight is paid. In all cases, how- ever, vfhere a delivery is prevented by the neglect or default of the owner of the goods, the freight becomes payable ; ^ (a) and it has been decided in Pennsylvania, that if the goods are tendered to the consignee, but the landing of them is prevented by the refusal of the government to allow it to be done, the whole freight is earned.^ (6) § 401. If the ship be captured, the owners of it, of course, lose ' Bradstreet v. Baldwin, 11 Mass. 229; Palmer v. Lorillard, 16 Johns. 346, cited in note to Abbott on Shipp. (5th Am. edit.) 406. ' Morgan v. North American Ins. Co., 4 Dallas, 455. cannot demand the goods until he is ready to pay the freight. The owner of goods is not bound to Eiccept their delivery and pay the freight until he has had an opportunity of ascertaining how far they correspond in quantity and descrip- tion with the bill of lading and of examining into their actual state and condition. The Sch. Treasurer, 1 Sprague, 473 ; Clark v. Masters, 1 Bosw. 177; Lanata ». Ship Henry Grinnell, 13 La. Ann. 24. A consignee has no right to demand that the certificate of a particular weigher shall be considered conclusive as to the weight of the cargo. The Sch. Treasurer, 1 Sprague, 473. If the master contracts by the bill of lading to deliver seventy-eight tons of egg coal and one hundred tons of stove coal, he is liot entitled to his freight on tendering to an assignee of the bill of lading one hundred tons of egg coal and seventy-eight tons of stove coal. Byrne v. Weeks, 7 Bosw. 372. A ship-owner cannot de- mand that the whole freight shall be paid until the whole of the consignment is ready for delivery. But if the shipment is so large that the whole cannot be delivered in one day, the ship-owner can either keep the whole at the expense of the ship, or he may tender part on payment of a pro rata freight, and it seems he may in such case, if the consignee refuses to take part, store the part at the expense of the consignee. This is in accordance with the dictum, of the court in Brittan v. Barnaby, 21 How. 527; but it may be doubted whether the con- signee has not the right to refuse to pay any freight until he has examined the whole, because the part undelivered may be damaged to a greater extent than the whole freight. See Clark v. Masters, 1 Bosw. 177 ; Black v. Rose, 2 Moore, P. C. N. s. 277. The clause in a bill of lading, " The freight payable after receipt of the whole in good order," does not entitle the consignee to the possession of the goods at his store before payment of freight ; but " receipt " means receipt on the wharf. Gauche v. Storer, 14 La. Ann. 411. (a) Where the contents of barrels have leaked out on the voyage, if this is owing to the fault of the shipper, full freight is due. Nelson v. Stephenson, 5 Duer, 538. (6) Bradstreet v. Heron, Abbott, Adm. 209. As to the effect of a seizure hy the officers of the customs, see Gosling v. Higgins, 1 Camp. 451 ; Spence v. Chod- wiok, 10 Q. B. 51 7 ; Evans v. Hutton, 4 Man. & G. 954 ; Howland v. Greenway, 22 How. 491. CHAP. IX.] EIGHT OF ACTION FOE FEEIGHT. 841 their freight, as well as the merchant his goods, (a) But in case of recapture and subsequent performance of the voyage at the place of destination, the right to freight revives, and becomes due on the completion of the voyage.^ The same rule extends to a resumption of an interrupted voyage after the removal of an em- bargo by which it was so suspended.^ § 402. If the vessel, having performed part of her voyage, be disabled from completing the remainder, then transshipment to the place of destination is in furtherance of the original purpose.^ In case of such transshipment, it was at one time a question, whether the remainder of the voyage, after the transshipment, was to be considered as performed under the old contract or under a new one, and whether the remuneration was to be at the rate of freight originally contracted for, or on a quantum meruit. It is said, however,* to be well settled in England, that if the goods be con- veyed safely to the place of destination, the freight shall be that originally contracted for. This was so decided in Shipton v. Thornton,^ in which the court say : " It may be taken to be either the duty or the right of the owner to transship. If it be the former, it must be so in virtue of his original contract ; and it should seem to result from a performance by him of that contract, that he will be entitled to the full consideration for which it was entered into, without respect to the particular circumstances at- tending the fulfilment. If it be the latter, a right to the full freight seems to be implied. The master is at liberty to transship, hut for what purpose, except for that of earning his full freight at the rate agreed on ? " (&) ' Beale W.Thompson, 3 Bos. & P. 420, 431 ; The Race Horse, 3 Rob. Adm. 101. ' Ibid., and Curling v. Long, 1 Bos. & P. 637 ; and 2 Holt on Shipp. 135. ' See ante, § 187. As to privilege of re-shipping under bill of lading, see ante, §227. * Smith, Merc. Law, 305. ' Shipton V. Thornton, 9 A. & E. 314. (a) Where a vessel loaded with ice was captured by the so-called Confederate States and condemned, it was held, that the owners of the cargo were not liable for freight, although before the condemnation the consignees obtained possession of the ice, upon executing a bond with sureties, with condition to pay the ap- praised value thereof if it should be condemned, which value they were afterwards compelled to pay. Tirrell v. Gage, 4 Allen, 245: The contract in this case was under a charter-party and bill of lading which excepted only perils of the seas. Qi) See Rosetto v. Gumey, 11 C. B. 176, 7 Eng. L. & £q. 461 ; Thwing v. Washington Ins. Co., 10 Gray, 443 ; Lemont v. Lord, 52 Maine, 265. 342 LAW OF CAEEIEES. [CHAP. IX. § 403. In the above case of Shipton v. Thornton, the question ■was incidentally mooted : " If the transshipment can only be effected at a higher than the original rate of freight, which party is to stand to the loss ? The opinion of the court appeared to be that, in such case, the master's right to transship would be at an end, but that he would become the freighter's agent to do what was most for his benefit under the circumstances, and that, conse- quently, if it were for the freighter's advantage that the goods should be forwarded, and an increased rate of freight incurred, the freighter would be bound by his agreement to pay such in- creased rate. No authority directly on the point was cited from books of the Common Law. It was treated very much as a new point to be decided on principle ; and the foreign authorities upon the subject of transshipment were elaborately reviewed by Lord Denman. Mumford v. Commercial Insurance Company ^ pre- sented the same question. The facts were, that goods were captured during the voyage, and the vessel was released, but the goods detained for further proof, and were afterwards restored on payment of the full freight ; but the owner was obliged to hire another vessel to carry the goods to the place of their destination ; it was held, that the insurer was liable to pay this additional or increased freight, being an expense necessarily incurred in conse- quence of the capture. Kent, C. J., who delivered the opinion of the court, said that the point in question was not anywhere adjudged in the English books, but he considered that, in a case in which no English decisions are to be met with, it was usual and proper to listen with attention and respect to foreign jurists.^ § 404. What is called " apportionment of freight " usually hap- pens when the vessel, by reason of afiy disaster, goes into a port short of the place of destination, and is unable to complete the voyage. In this case, as we have already seen, the master may, if he will and can do so, hire another ship to convey the goods, and so entitle himself to his whole freight ; but if he is unable or declines to do this, and the goods are there received by the mer- chant, he shall be paid according to the voyage performed.^ The ' Mumford v. Commercial Ins. Co., 5 Johns. 262. ' The learned judge cited Pothier, Trait. d'Ass. n. 52,- Marsh, on Ins. 172; and see Scheiffelin, 9 Johns. 21 ; Searle v. Scovil, 4 Johns. Ch. 218. ' Abbott on Shipp. 434. CHAP. IX.] EIGHT OF ACTION FOE FREIGHT. 343 exception to the general rule, that the contract by the bill of lading is indivisible, and that, therefore, the ship-carrier can recover for no portion of the voyage which has been performed, unless the whole be performed, has already been incidentally stated to be a new contract by the merchant to accept the cargo short of the place of the original destination. If the merchant- freighter himself, or his agent or consignee, are willing to" dis- pense with the performance of the whole voyage, and voluntarily accept the goods before the complete service originally intended is rendered, the law is, and has long been, that a proportionate amount of freight will be due ; or as it is termed, " freight pro rata itineris peracti." ^ This equitable rule of maritime law is without doubt extremely ancient, it being found, as Lord Mans- field says, in Luke v. Lyde,^ in the marine laws of Rhodes. The Marine Law having decided, that in certain cases freight shall be paid pro rata, the Common Law presumes in those cases a promise to that effect as being made by the party who consents to accept his goods at a place short of the port of destination ; for he obtains his property, with the advantage of the carriage thus far ; and as he cannot be sued for freight on the original contract, as that has not been performed, (for the purpose of justice and in furtherance of the Marine Law,) a promise of partial payment is, by the Common Law, implied from the fact of the acceptance of the cargo.* § 405. Upon a review of all the English cases upon the sub- ject, it will appear, that, considering the subject with regard to the proceedings in the courts of the Common Law, the right to freight pro rata itineris must arise out of some new contract between the master and the merchant, either expressly made by them, or to be inferred from their conducted (a) The contract was inferred from ' Abbott on Shipp. 434. ' Luke ». Lyde, 2 Burr. 889. ' Jones on Ceut. 144. Attention has already been called in another chapter to cases, wherein an acceptance of the goods short of the place of destination not only excuses a non-delivery by the carrier to the place originally intended, but renders the owner or consignee liable for the payment of a pro rata freight. See ante, § 332. If a consignee of property sent by a common carrier demands and receives it before it reaches its ultimate destination, he is liable for the full freight. Violett v. Stettinius, 5 Cranch, C. C. 559. * Abbott o n Shipp; 448; Smyth v. Wright, 15 Barb. 51. (o) See The Soblomsten, Law Kep., 1 Adm. 293 ; Cargo ex Galam, 1 Brow. & L. Adm. 167. 344 LAW OF CAKEIERS. [CHAP. ffi the fact of the acceptance of the goods, in Luke v. Lyde.^ Lord Mansfield, in that case, manifestly presumed an implied contract from the circumstance that Lyde took the cargo saved into his own possession, and sending it to a different port from that of its original destination, without any demand on the master to send it forward by another ship. The same principle, namely, that the master cannot recover upon the original contract, which he has not performed, but must sue, if at all, upon some new contract, implied or expressed, will be found to pervade all the cases. The contract is expressed where the merchant directly waives the pros- ecution of the voyage ; and it is implied where he accepts the goods, as if he took them as a part of the beneficial service per- formed, though not the whole. The latter limitation is important, because, if he accepts them only from the necessity of the case, he, under such circumstances, will only take up his own goods ; and the court will not be able to imply, that, by such an acceptance, he had any intention to waive the completion of the whole agree- ment.2 § 406. Such, it may be confidently stated, is, on the whole, the established doctrine in the United States. All the cases, says Mr. Justice Story, " in which the full freight is, on the ordinary prin- ciples of Commercial Law, due, notwithstanding the non-arrival of the goods at the port of destination, may be reduced to the single statement that the non-arrival has been occasioned by no default or inability of the carrier-ship, but has been occasioned by the default or waiver of the merchant-shipper. In the former case, says he, the merchant-shipper cannot avail himself of his own default to escape payment of freight ; in the latter he dis- ' Luke V. Lyde, 2 Burr. 888. ^ ' 2 Holt on Shipp. 150. In Cooke v. Jennings,,? T. E. 381, Mr. J. Lawrence thus expresses himself: " When a ship is driven on shore, it is the duty of the master either to repair the ship, or to procure another ; and having performed the voyage, he is then entitled to his freight ; but he is not entitled to his whole freight unless he performs the whole voyage, except in cases where the owner of the goods prevents him ; nor is he entitled pro rata, unless under a new agreement. Perhaps the subsequent receipt of these goods by the defendant might have been evidence of a new contract between the parties ; but here the plaintiff has re- sorted to the original agreement under which the defendant only engaged to pay in the event of the ship's arrival at Liverpool. That event has not happened, and therefore the plaintiff cannot recover in this form of action.'' These princi- ples were affirmed by Lord Ellenborough in Hunter v. Prinsep, 10 East, 378. CHAP. IX.] EIGHT OF ACTION FOE FREIGHT. 845 penses with the entire fulfilment of the original contract for his own interest and purposes."^ , § 407. There may be some authorities which hold that a com- pulsive receipt of goods by the owner would render a pro rata freight due. But in^uch case, says Mr. J. Story, " I conceive it now to be well settled, that no freight is due," and the learned judge asserts emphatically, that there is no principle which would justify a pro rata freight when there has been no voluntary ac- ceptance at an intermediate port, dispensing with the further car- riage of them, but only an involuntary sale from necessity, to pre- vent them from there perishing by a total loss.^ In the case of Welsh V. Hicks, in New York,^ it is said for the court, by Suth- erland, J., that " freight pro rata itineris is due where a ship, in consequence of perils of the sea, without any fault of the master, goes into a port short of Jier destination, and is unable to prose- cute the voyage ; and the goods are received by the owner at an intermediate port." On the other hand, the learned judge con- cedes that where the master' refuses to repair his ship, or to pro- cure other vessels for the purpose, and the owner of the goods then receives them, that is not such an acceptance of the goods as will entitle the ship-owner to a pro rata freight. In such case, the owner does not elect to receive his goods at the intermediate port, and sell them there, or become his own carrier to the port of destination, he does not assent to the termination of the voy- age ; but it having been terminated against his will by the refusal of the master to send on his goods to the port of destination, he does not, by receiving them under such circumstances, promise to pay the freight to the intermediate port.* (a) ' The Nathaniel Hooper, 2 Sumn. 542. * Ibid., and the numerous authorities there cited. ' Welsh V. Hicks, 6 Cow. 510. ' Mr. Justice Story, in a note to the 5th Am. edit, of Abbott on Shipp., com- mencing on p. 547, thinks that the above case of Welsh i'. Hicks is entitled to mnch consideration, as it shows that the mere acceptance of the goods, unless it is a matter of choice, does not per se give a title to freight pro rata. He also fur- mshes, in the same note, a summary statement of the American decisions, because (a) See Rogers v. West, 9 Ind. 400 ; Richardson v. Young, 38 Penn. State, 169. If a vessel is wrecked, and the shipper abandons the cargo to the insurers, who accept the abandonment and take possession of the goods, against the will of the owners of the vessel, who are ready to send the goods on, the shipper is liable for freight ;)roroto itineris. Smyth u. Wright, 15 Barb. 51. In such a case, if 346 LAW OF CAEKIEBS. [CHAP. IX> § 408. Upon the question as to the right of the merchant to abandon his goods, when brought to the place of destination, and by so doing, discha/rge himself from freight, diflferent doctrines and opinions, it is said, haje prevailed, and there is in England no judicial decision ; although in some cases, between the mer- chant and the insurer, it has been admitted that the freight was payable, notwithstanding the goods were so much damaged that their value fell short of its amount.^ In Miles v. Bainbridge,^ Lord EUenborough, 0. J., intimated that if the merchant had re- fused to receive the cargo on the ground of damages occasioned by default of the master, the point would admit of some doubt. In such case, as the merchant would clearly derive no benefit whatever from the conveyance, nor the master have fulfilled his engagement according to the terms of the bill of lading, it may very properly be inquired, what reason is there why the master should oblige the merchant to pay the freight ? ^ In Bartram v. M'Kee, in Pennsylvania,* the point was taken for granted in the Common Pleas and in the Supreme Courts, that if a person carry they do not, in all respects, perfectly concur. The case of Luke v. Lyde seema at first to have been understood to justify the claim of pro rata freight, whether there was a voluntary or a compulsive acceptance of the goods at an intermediate port, by the owner or his agent ; for Baillie v. Moudigliani, Park on Ins. 61, pressed the doctrine so far as to apply it to cases where the proceeds were re- ceived after a compulsive sale by a prize-court. In Caze v. Baltimore Ins. Co., ub. sup. the Supreme Court of the United States are of opinion that the current of more recent authority points the other way. The weight of authority, in this country, as appears by the note referred to, undoubtedly is, as was held in the case of the Marine Ins. Co. v. United States Ins. Co., 9 Johns. 186, viz. that to give a title to freight pro rata itineris, there must be an unequivocal, voluntary, and unconditional acceptance by the owner at an intermediate port, so as to form the basis of a new contract to pay a ratable freight ; and that the acceptance of the net proceeds of the property, after a capture and sale by a prize court, and resti- tution decreed, constituted no sufficient title for such freight. ' Abbott on Shipp. 427. ' Miles V. Bainbridge, Guildhall, Dec. 20, 1804, before Lord EUenborough, C. J., cited in note to Abbott on Shipp. 248. ' See Basten v. Butler, 7 East, 479. * Bartram v. M'Kee, 1 Watts, 39. the owners of the vessel take no steps to forward the goods, freight ^ro rata is not due. Atlantic Ins. Co. v. Bird, 2 Bosw. 195. Where a vessel is disabled in transitu, and the cargo is transshipped by the master into another vessel at a greater rate of freight than the original, freight pro rata is not due the first ves- sel. Crawford v. Williams, 1 Sneed, 205. CHAP. IX.] EIGHT OP ACTION FOE FEEIGHT. 347 by land or by sea, and he has not faithfully performed his part, he cannot recover full compensation ; and a deduction from the price of freight was made in that case on account of damage to the goods. § 409. In Leech v. Baldwin, in Pennsylvania,'^ in an action by common carrier to recover the price of transportation, it was held that the defendant might set up as a defence, negligence or want of skill in the carrier, in consequence of which the goods were deteriorated in value ; and that any facts which were proved, tending to show that the plaintifiF did not perform his part of the contract, or from negligence and want of skill performed it in such a manner that the defendant suffered loss, the latter might have the amount of such loss, as ascertained by the jury, de- ducted from the amount of the plaintiff's claim. §410. The plaintiff, who was the owner of a canal-boat, re- ceived and gave a receipt for certain casks of nails, in good order, &c., which he agreed to deliver (the dangers of the navigation excepted) in the like good order and condition, to W. L., Phila- delphia, he paying freight for the same at a certain rate. On the voyage to Philadelphia the boat struck against a stone in the bot- tom of the canal, by which a hole was knocked in her bottom, and the nails became wet and damaged. On her arrival at Philadel- phia the captain of the boat delivered the nails at the wharf of the defendants, who were forwarding and commission merchants, with instructions not to deliver them until the freight was paid. The defendants, however, delivered the nails to W. L. without receiving the freight. In trover for the nails, it was held that the defendants had a right to show that, in consequence of the un- skilfulness or negligence of the persons engaged in the manage- ment of the boat, the plaintiff was not entitled to recover the stip- ulated freight.2 § 411. In an action brought in Illinois to recover the amount of freight agreed to be paid for the transportation, and delivery of a certain quantity of merchandise from Buffalo to Chicago, evi- dence that a portion of the goods agreed to be transported exceed- ing in value the whole amount of the freight claimed was, through the negligence and improper conduct of the plaintiff, lost and de- stroyed on the voyage, was held to be admissible as well in the ' Leech v. Baldwin, 5 Watts, 446. See Humphreys v. Reed, 6 Whart. 436. ' Humphreys v. Keed, 6 Whart. 435. 348 LAW OP CARRIERS. [CHAP. ix. nature of a set-off as, also, for the purpose of reducing the amount sought to be recovered by the plaintifif.-^ It is held like- wise in South Carolina, that where the damage done to the goods by the carrier exceeds the freight, to that extent the carrier's right to freight is defeated.^ § 412. On the same principle, want of seaworthiness may be set up as a defence in an action to recover the price of carrying. In Dickinson v. Haslit, in Maryland,^ which was an action by the shipper of goods against the captain and consignee of the cargo, to recover money retained for freight, it was held, that the plain- tiff was at liberty to show that the vessel was not seaworthy at the commencement of the voyage, in order to resist the defendant's claim to freight ; and that, if the jury believed the vessel not to have been seaworthy and competent to perform the voyage at the time of its commencement, then the defendant was not entitled to retain anything for freight, and that the plaintiff was entitled to recover the amount he claimed. § 413. It is clear, then, that if a common carrier demand com- pensation on a quantum meruit, the owner may show, in bar of such demand for compensation, that the goods were damaged in the transportation, by the default of the carrier, to an amount exceed- ing that of a fair rate for the carriage.* And also, that, as the owner may show, in answer to the carrier's claim to recover freight, that the goods were by his default injured in the trans- portation, his right of lien is liable to be defeated in the same way.^ § 414. But if the carrier has conducted himself with vigilance and fidelity in the course of the voyage, he has no concern with, nor is he answerable for, the value of the goods.^ A ship-owner performs his engagement when he carries and delivers the goods ; the right to his freight then becomes absolute, and the carrier is not an insurer of the soundness of the cargo, as against its own intririr sic decay ; '' not more so than he is of the price in the market to which the cargo is carried. It may impair the remedy which his ' Edwards v. Todd, 1 Scam. 463. « Ewart V. Kerr, 2 M'MuU. 141. ' Dickinson v. Haslit, 3 Harris & J. 345. * Sohureman v. Withers, Anthon, N. P. 230. " Ewart V. Kerr, 1 Rice, 203. " Leech v. Baldwin, 5 Watts, 446. ' Ante,%% 210, 211, e(se?. CHAP. IX.] EIGHT OF ACTION FOR FREIGHT. 349 lien afforded, but does not affect his personal demand against the shipper.^ Such was the language of the court in Griswold v. New York Insurance Company.^ If casks contain wine, rum, or other liquids, or sugar, and the contents are washed out and wasted by the sea, so that the casks arrive empty, no freight is due for them ; ^ but the ship-owner would still be entitled to his freight, if the casks were well stowed, and their contents were essentially gone by leakage, or inherent waste, or imperfection of the casks.* (o) The carrier has also a right for freight and charges paid, although the goods may have suffered damage before they reached him, while in the hands of a preceding carrier.^ (6) § 414 a. The adoption of the principle, that the bill of lading is conclusive on the carrier, not only as to the apparent, but also as to the actual condition of the goods, would impose on him the ne- cessity of opening, for self-protection, every box of merchandise, to examine and ascertain the condition of its contents, before he receives it. Besides, the injury that would be inflicted on the owners of freight would be a cogent argument against such a requisition. A carrier, therefore, who receipts for goods as in good condition, is not estopped to show that they were in fact damaged before they came into his possession. He may show a ' 3 Kent, Com. 224. ' Griswold v. New York Ins. Co., 3 Johns. 321, and see Saltus v. Ocean Ins. Co., 14 lb. 138. ' See ante, § 212. ' 3 Kent, Com. 224 ; Frith v. Barker, 2 Johns. 327. When the goods become greatly deteriorated on the voyage, it has been a litigated question whether the consignee is bound to take the goods and pay the freight, or whether he may not abandon the goods to the master in discharge of the freight. Valin and Pothier have entertained opposite opinions on this question. Val. Com. tome i. 670, Poth. Ch. Partie, No. 5. The former insists, that the regulation of the ordinance, holding the merchant liable for freight on deteriorated goods, without right to abandon them in discharge of the freight, is too rigorous to be compatible with equity. He says the cargo is the only proper fund and pledge for the freight, and that Casaregis was of the same opinion. Disc. 22, n. 46 ; lb. 23, u. 86, 87. Pothier, on the other hand, was against the right of the owner to abandon the deteriorated goods in discharge of the freight, and this is the better opinion. 3 Kent, Com. 224. The opinion of Pothier was adopted in the case of Griswold ». New York Ins. Co., vb. sup. ' Bowman v. Hilton, 11 Ohio, 303. (a) Nelson v. Stephenson, 5 Duer, 538; Nelson v. Woodruff, 1 Black, 156. (6) Bissel V. Price, 16 111. 408 ; White v. Vann, 6 Humph. 70. 350 LAW OP OAEEIEBS. [CHAP. IX. mistake or a fraud in opposition to the recital in the bill of lading, that the goods were in " good order and condition." ^ § 415. In an action by a common carrier to recover the price of transportation, the defendant cannot give evidence of a breach of contract in a different transaction in which unliquidated damages might be due to him ; for matters sounding in tort arising out of a different transaction cannot be given in evidence as a set-off, though they may be taken advantage of when they arise out of the same transaction, and go to defeat the plaintiff's action.^ (o) § 416. Freight being the reward to which a person is by law entitled for bringing goods lawfully upon a legal voyage, 'it is an answer to an action for freight, that the voyage in respect to which it is claimed was illegal, for ex turpi causa non oritur actio, or, as it is interpreted by Lord Mansfield, "justice must be drawn from pure fountains." ^ (6) The legal presumption, however, is, that the voyage was legal, as everything must be taken to be legal until the contrary is proved.* § 417. If the captain be paid his freight on an illegal voyage for goods which are lost or damaged, he is answerable for them, in case the owner of them was not privy to the illegality ; ^ and, on the other hand, if a freighter, by loading prohibited or unlawful goods, occasions the ship's detention, or otherwise impede her voyage, he shall pay the freight contracted and agreed for.® ' Chitty on Cont. 481 ; Warden v. Greer, 6 Watts, 424 ; Gowdy v. Lyon, 9 Mon. 112. That a bill of lading is a mere receipt, subject to be opened by proof, see also ante, § 231. ^ Gogel V. Jacoby, 17 S. & R. 117, and cited in Leech v. Baldwin, uh. sup. = See Abbott on Shipp. 426 ; MuUer v. Gernon, 3 Taunt. 394 ; Blanck v. Solly, 8 lb. 89. * Bennett v. Clough, 1 B. & Aid. 461 ; Sissons v. Dixon, 5 B. & C. 758. « Hatohwell v. Cooke, 6 Taunt. 577. " Jones on Carr. 153 ; Beawes, Lex Merc. 191. (a) See Hill v. Leadbetter, 42 Maine, 572. (J) See ante, § 366, n. CHAP. X.] ACTIONS AGAINST. 351 CHAPTER X. OF ACTIONS AGAINST CAERIERS, THE DECLAEATION, PLEAS, EVIDENCE, DAMAGES, AND THE PAUTIBS TO SUB AND BE SUED. 1. Action against a Common Carrier for refusing to receive ' » Goods. 2. Proceedings in the Admiralty against Common Carriers for the Loss of Goods. 3. Actions at Common Law for the Loss of Goods by Carriers. 4. Action on the Case. 5. Declaration in Action on the Case may contain a Count in Trover. 6. Action of Assumpsit. 7. Distinctive Character of the Declaration, as to whether Case or Assumpsit. 8. As to the Allegations, Sfc. in the Declaration. 9. Pleading. 10. Evidence. 11. Damages. 12. The Parties to sue. 13. The Parties to be sued. 1. Action against a Common Carrier for refusing to receive Goods. § 418. It lias been already laid down, that a common carrier is bound to receive and carry all the goods offered for conveyance, and that he is liable to an action in case of refusal, provided there be offered a reasonable compensation.^ The form of action in such cases is case, in which it is necessary that it should be averred in the declaration, that the plaintiff was willing and ready to pay the defendant the amount which the defendant was legally enti- tled to receive for the receipt and carriage of them ; though it is not necessary that he should aver an absolute tender. It was so decided in the case of Pickford v. Grand ^4inction Eailway Com- ' Ante, § 124. 352 LAW OF CAEEIEES. [CHAP. X. pany ; ^ and it was asserted by the counsel for the plaintiffs in this case, tliat no precedent of a declaration against a carrier for refus- ing to carry goods was to be found in the books. The declaration in this case stated : " That whereas the defendants, before and at the time hereinafter mentioned, to wit, on the 24th of November, 1840, were common carriers of goods and chattels for hire from Birmingham, in the county of Warwick, to Manchester, in the county of Lancaster, and from Manchester aforesaid to Birming- ham aforesaid, and thereupon heretofore, to wit, on the said 24th of November, 1840, the plaintiffs caused to be tendered to the de- fendants, they being such common carriers as aforesaid, to wit, at a certain place in Birmingham aforesaid, being the place by them then used in the way of their said business as common carriers for the receipt of parcels and goods to be by them carried and conveyed as such common carriers as aforesaid, a certain parcel of goods of the plaintiffs, to wit, a hamper containing divers goods then of great value, to wit, of the value of £ 100 ; and then re- quested the defendants to receive and to carry and convey the same from Birmingham aforesaid to Manchester aforesaid ; and the defendants then had ample convenience ^ for receiving and car- rying and conveying the same according to the said requirement of the plaintiffs in that behalf ; and the plaintiffs were then ready and willing, and then offered to pay to the defendants such mm of money as the defendants were legally entitled to receive for the re- ceipt and carriage and conveyance of the said parcel, and all other charges whatsoever which the defendants were then authorized or in any wise entitled to make or receive for the receipt, carriage, and conveyance of- the said parcel from Birmingham aforesaid to Manchester aforesaid, to wit, the sum of £ 2 ; and the defendants then had notice of the premises ; yet the defendants, not regard- ing their duty as such common carriers as aforesaid, but contriv- ing, and wrongfully and unjustly intending to injure the plaintiffs, though they did receive as aforesaid, and carry and convey, the goods of divers other persons on that occasion from Birmingham aforesaid to Manchester aforesaid, did not, nor would, at the said time when they were so requested, or at any time afterwards, re- ceive the said parcel, or carry or convey the samp from Birming- ham aforesaid to Manchester aforesaid, but wholly neglected and ' Pickford v. Grand Junction R., 8 M. & W. 372. ' Seeanie, § 125. CHAP. X.] ACTIONS AGAINST. 353 refused so to do, though they might and could and ought as such carriers to have received and carried and conveyed the same as aforesaid ; whereby the plaintiffs were then forced and obliged to carry and convey the said parcel from Birmingham aforesaid to Manchester aforesaid, with great labor, cost, and inconvenience, and were put to great expense, &c. in and about the carriage and conveyance of the said parcel, &c., and were and are otherwise greatly annoyed, injured, inconvenienced, and damaged." To this declaration there was a special demurrer, assigning for cause, that the declaration did not aver a tender to the defendants of the money wjaich they were entitled to receive for the carriage of the goods. On joinder in demurrer, the judgment of the court was delivered by Parke, B., who said : " The court think that this is not like the case of a strictly legal tender, a term which is only applicable where an absolute duty, such as the payment of an an- tecedent debt, is imposed on the party making it, in which case the tender stands in. the place of payment, and is in fact payment,^ so far as it is in the power of the party tendering to make it one, but which remains incomplete only because the party to whom the money is offered refuses to accept it. Such a tender we consider to be altogether unnecessary in the present case ; the acts to be done by both parties, namely, the receipt of the goods, and the payment of a reasonable sum for their carriage, being contempo- raneous acts ; the carrier being bound to receive the goods on the money being paid or tendered, and the bailor to pay the reason- able amount demanded, on the carrier's taking charge of the goods. The case of Rawson v. Johnson clearly shews, that wlieuever a duty is cast on a party, in consequence of a contemporaneous act of payment to be done by another, it is sufficient if the latter pay, or be ready to pay, the money, when the other is ready to under- take the duty. Here the acts to be done by the plaintiffs and defendants are altogether contemporaneous. Thp money is not required to be paid down by the plaintiffs until the carrier receives the goods, which he is bound to carry. Our judgment, therefore, must be for the plaintiffs." ^ (a) ' The case of Rawson v. Johnson, cited by the learned judge (1 East, 203), was an action for the non-delivery of malt, which the defendant had undertaken to deliver on request, at a certain price, and it was held sufficient for the plaintiffs m the declaration to' aver such request, and that they were ready and willing to (a) See Crouch v. GVeat Northern K., 11 Exch. 742, 34 Eng. L. & Eq. 573. 23 364 LAW OF CARRIERS. [CHAP.X 2. Proceedings in the Admiralty against Common Carriers for the Loss of Goods. § 419. For the loss of goods delivered to a common carrier for transportation by sea, or to_ one, the substantial part of whose service is to be performed within the limits of tide-water, (a) the proceeding against him may, under the Constitution of the United States, be in the Admiralty, as well as at Common Law.^ (i) Thus, a libel in the Admiralty was entertained in the case of The Citizens' Bank v. The Nantucket Steamboat Company ,2 for the iion-delivery of certain packages of bank-bills by the respondents, which were delivered to them to be carried from Nantucket to New Bedford. The libel was not in rem, but against the Steam- receive the malt and to pay for it according to the terms of the sale, but that the defendant refused to deliver it, without averring any actual tender of the price; and Lord Kenyon said: "Under this averment the plaintiffs must have proved that they were prepared to tender and pay the money, if the defendant had been ready to receive it, and to have the goods delivered ; but it cannot be necessary, in order to entitle them to maintain their action, that they dhould have gone through the useless ceremony of laying the money down, in order to take it up again. It would be repugnant to common sense to require it /' A strictly legal tender, it was admitted by the counsel for the plaintiffs in the case of Pickford, &c., supra, was necessary, where there is a pre-existing debt, the amount of which ihay be ascertained with precision by the party tendering it. The words " tender" and "offer" are used in several instances, however, as meaning the same thing. See Levy v. Herbert, 7 Taunt. 314, and Waterhouse v. Skinner, 2 Bos. & P. 447 j Marshall v. York R., 11 C. B. 655, 7 Eng. L. &. Eq. 519. ' New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 378 ; King v. Shep- ard, 3 Story, 349. ' Citizens' Bank v. Narftucket Steamboat Co., 1 Story, 16, cited more fully, ante, §§ 102, 103. (a) The jurisdiction of the Admiralty does not now depend oa tide-water. The Genesee Chief w. Fitzhugh, 12 How. 443; Fretz ». Bull, 12 How. 466; Jackson V. Steamboat Magnolia, 20 How. 296 ; The Hine v. Trevor, 4 Wallace, 555. As to the jurisdiction of the Admiralty over contracts of affreightment, see 2 Parsons, Mar. Law, 559-666. Whether there is jurisdiction when the ves- sel is engaged in navigation between ports of the same States may be questioned. Allen V. Newberry, 21 How. 244. In The Emma Johnson, 1 Sprague, 627, no question was made as to the jurisdiction ; but the point was raised in the Circuit Court, and the jurisdiction sustained, by Clifford, J. (6) In Place v. Potts, 5 H. L. Cas. 383, to an action by a ship-owner at Com- mon Law against a charterer for freight, a plea stating that ^n a suit in the Ad- miralty Court by an obligee of a bottomry bond given on the vessel and freight, the defendant had been ordered to bring the freight into court, was held good. See infra, § 610. ggiP. X.] ACTIONS AGAINST. 355 boat Company alone, and no question was made (and in the judgment of Mr. J. Story there was no just ground for such question) that the cause was a case of admiralty and maritime jurisdiction in the sense of the Constitution of the United States, of whicli the District Court had full jurisdiction ; and therefore it was properly to be entertained by the Circuit Court, on appeal from the District Court. § 420. At tlie December term of the Supreme Court of the United States, 1847, a decree of the Circuit Court of Ehode Island was affirmed, which was a judgment upon a libel in per- sonam against a steamboat company for the loss of specie carried in their boat, and lost by fire in Long Island Sound. The ques- tion of admiralty jurisdiction in this case was very elaborately and very learnedly discussed both at the bar and by several of the judges. Nelson, J. considered the contract of conveyance was a maritime contract, and the service a maritime service to be per- formed upon waters within the ebb and flow of the tide ; and that tlierefore, according to several cases in admiralty which had been before the court at former periods, it was within the jurisdiction of the Admiralty. In this opinion Mr. C. J. Taney, Mr. J. Mc- Lean, and Mr. J. Wayne (as the Reporter understands) con- curred. Mr. J. Catron treated the question as one not depending on contract, but upon a tort ; as the fire occurred on the high seas, it was a tort there, and the locality of the tort is the locus of juris- diction. Mr. J. Woodbury (after an elaborate review of the authorities, as to the true line of discrimination between the juris- diction belonging to the Commom Law courts and tlmt in Admi- ralty) was inclined not to rest jurisdiction in the Admiralty over a transaction like the one in question on contract alone ; but he was in favor of the affirmance of the decree on the ground of a .recovery for the wrong committed as a marine tort, vsAh&v ihsM. on any breach of contract which could be prosecuted in the Ad- miralty. But Mr. J. Daniel was wholly in favor of reversing the decree of the Circuit Court and of dismissing the libel ; but all the rest of the learned judges, it seems, were against him on the grounds above stated.^ ' New Jersey Steam Nav. Co. u. Merchants' Bank, uh. sup. In the case of The Huntress, Daveis, 94, which in its features was like the case just cited, the ques- tion whether the Admiralty Court had jurisdiction over the cause as one arising on contract growing out of a maritime service, was not raised by counsel nor 356 LAW OF CAEEIERS. [CHAP. X § 421. In the course of the argument in the case of The Citi- zens' Bank v. The Nantucket Steamhoat Company,i it was in- timated, that in libels of this sort, the proceedings might properly be instituted both in rem against the steamboat, and in personam against the owners and masters thereof. But Mr. J. Story there- upon was induced to declare, that he knew of no principle or authority, in the general jurisprudence of Courts of Admiralty, which would justify such a joinder of proceedings, so different in their nature and character, and decretal effect ; but, on the con- trary, every practice of this sort had been discountenanced as illegal and improper, (o) 3. Actions at Common Law for the Loss of Goods by Carriers. § 422. It appears by the two cases last cited, that common car- riers by sea are liable to be proceeded against in the Admiralty for the loss of goods delivered to them for transportation, both ex contractu and ex delicto, or, in other words, for a breach of con- tract and for a breach of duty. But in respect to the proper form of action at Common Law against all common carriers there was for a long time a question, and one much agitated among plead- ers ; and it was natural that the question should arise out of the innovation upon the Common-Law duties of carriers. As long as their occupation was considered only as a public duty, the breach was tort, for which they were liable to an action on the case, founded upon the custom of the realm ; or, in other words, upon the Common Law. In time, however, they succeeded in establish- ing the existence of a contract, and then they at once became liable to an action of assumpsit on their undertaking ; and a very long-established, continued, and uniform usage has sanctioned the principle and adopted the advantages of both forms of action ; so that the case may be considered either way, as arising ex con- adverted to by the court. But there is appended to the opinion of the court holding the carrier liable, some valuable and learned observations in vindication of its taking cognizance of causes of this description ; and it is stated that the competency of the court to pass upon such questions had been, in the Maine District, in several cases in which the same general question was involved, maintained. ^ Ub. sup. (a) This point is left undetermined by the Admiralty rules promulgated by the Supreme Court. See 2 Parsons, Mar. Law, 67S. CHAP. X.] ACTIONS AGAINST. 357 tractu or ex delicto, according as the neglect of duty, or breach of promise, is intended to be relied on as the cause of injury.^ (a) The practice of declaring against common carriers on the custom of the realm was as ancient as the law itself, and was uniformly adopted until the case of Dale v. Hall;^ when the practice of de- claring in assumpsit succeeded ; but for four hundred years before that time the declaration was in tort on the custom.^ 4. Action on the Case. § 423. Each of the two forms of action, and modes of consider- ing the question above mentioned, has its peculiar advantages and inconveniences ; and first, as to the action on the case for a breach of duty, or for a tort. As a general rule, where there is any doubt, as to the defendants, it is better if possible to declare in tort, rather than ex contractu, for the reason that the consequen- ces of a misjoinder or nonjoinder of parties are less serious in the former than in the latter case.* In the case of Bretherton v. Wood, in the Exchequer Chamber,^ there were too many defend- ants. The plaintiff below, in an action on the case against ten defendants as proprietors of a coach, for injuries sustained by the plaintiff, in consequence of negligence in driving, the jury found a verdict against eight of the defendants, and in favor of the other two. Dallas, C. J., who delivered the judgment of the court, said: "This action is on the case against a common carrier, upon whom a duty is imposed by the custom of the realm, or, in ' Jeremy on Carr. 116, 117. And see the concluding portion of the note to Coggs V. Bernard, in 1 Smith's Leading Cases, 96 (Am. edit., Philadelphia, 18i7). Also Boson v. Sandford, Salk. 44, and 2 Show. 478. Per Dennison, J., in Dale v. Hall, 1 Wils. 282 : " The declaration upon the custom of the realm IS the same in effect with the present declaration (in assumpsit). In the old forms, it is that the defendant suscepil, &c., which shows that it is ex contractu," and this authority was cited by Lord Kenyon in Buddie v. Wilson, 6 T. E. 373. See also Govett V. Eadnidge, 3 East, 63 ; Koss v. Johnson, 5 Burr. 2825; Dickon v. Clif- ton, 2 Wils. 319; Powell v. Layton, 2 Bos. & P. 365; Hamblay v. Trott, Cowp. 375 ; Bretherton v. Wood, 3 Brod. & B. 54 ; Orange Bank v.. Brown, 3 Wend. 158; Weed v. Schenectady R., 19 Wend. 534; Smith v. Seward, 3 Barr, 34^; Pozzi ». Shipton, 8 A. St E. 963. " Dale V. Hall, ub. sup., decided in 1750. " Per Bayley, J., in Ansel v. Waterhouse, 2 Chitt. 1. . ' See the cases referred to in the preceding section. ' Bretherton v. Wood, 3 Brod. & B. 54. (a) Tattan v. Great Western K., 2 Ellis & E. 844. 858 LAW OF CARRIERS. [CHAP. X. other words, by the Common Law, to carry and convey their goods and passengers safely and securely, so that, by their negli- gence or default, no injury or damage happen. A breach of this duty is a breach of the law, and for this breach an action lies, founded on the Common Law, which action wants not the aid of a contract to support it. It appears by the different books of entries, Brownlow Redivivus, 11 ; Clift. 38, 39 ; Mod. Ent. 145, that this form of action is a very ancient use. Nor is it material whether redress might or might not have been had in an action of assumpsit : that must depend on the circumstances of which this court has no knowledge ; but whether the action of assumpsit might or might not have been maintained, still this action on the case may be maintained. The action of assumpsit, as applied to cases of this kind, is of modern use. If the action be not founded on a contract, but on breach of duty depending on the Common Law, on a tort or misfeasance, it cannot be contended that the judgment is erroneous ; for, from the nature of the case, and Ike form of the action, it is several and not joint, and may be main- tained against some only of those against whom it is brought."^ § 424. So in M'Call v. Forsyth, in Pennsylvania,^ it was held, that for an injury done to a passenger by the upsetting of a stage- coach, the remedy of the party might be either case or assumpsit; and that if the former is adopted, he may recover against all those who are liable ; but if the latter, the plaintiff, to entitle him to recover, must prove the liability of all the parties sued. § 425. It has long been well settled in England, that if a car- rier in partnership is sued singly in an action arising ex delicto, he cannot plead the nonjoinder of the others in abatement or in bar, or give it in evidence under the general issue ; for a plea in abatement can only be adopted in those cases where regularly all the parties must be joined, and not where the plaintiff may or may not join; them at his election.® Therefore, to an action on the case against the defendants, part owners of a ship, for the neg- ligence of their servant in running down a ship laden with sugar, belonging to the plaintiff, whereby the sugar was lost, it was held ' The decision in this case was cited and approved by Baron Parke, in givuig judgment in Wyld v. Pickford, 8 M. & W. 490. ' M'Call V. Forsyth, 4 Watts & S. 179. A verdict against one defendant, and in favor of another, held good in Smith v. Seward, 3 Barr, 342. = Gow on Part. 201 ; Childs v. Sands, Carth. 294. CHAP. X.] ACTIONS AGAIKST. 359 that the defendants could not plead -in abatement, that there were other part owners not joined in the suit, because the action being ex delicto, the trespass was several.^ So, in an action on the case ■against a common carrier by land, for not safely carrying a pas- senger, it was held that the defendant could not plead in abate- ment the nonjoinder of a co-proprietor .^ \j 426. The subject was very fully considered by Mr. C. J. Sav- age, in giving the opinion of the court in the case of Orange Bank V. Brown, and five others, in the Supreme Court of the State of New York.^ In this case there were too few defendants. The defendants were charged in the declaration as common carriers, for the loss of property put on board their steamboat for transpor- tation, and the gravamen was stated to have arisen from a breach of duty ; and there was a plea in abatement that there were fifty- four other proprietors .who were jointly liable. The learned judge, after an elaborate review of the Jlnglish authorities, commencing ■with one of tire earliest cases concerning the point in question, viz.. Boson v. Sandford,* and ending with the case of Bretherton V. Wood, decided in 1821,5 says : " It is not to be denied that there has been a difference of opinion between some of the Eng- lish judges on the question, whether an action against a common carrier is an action founded on a tort or on a contract. Dallas, C. J. seems to put that question at rest by bringing it to a very fair test: Does it require the plaintiff to show a contract, express or implied, to support it ? The action on the case was at last de- cided to be for a tort.® This was clearly the opiftion of Lord Mansfield, in the case cited by C. J. Mansfield ;^ and all the cases in which it has been held necessary to join all the joint owners, have been said by distinguished judges to be clearly actions upon a promise. Much of the confusion has probably grown out of the forms of declaring in some of the cases where it is difficult to de- termine whether the promise and undertaking often stated in ]the ' Mitchell V. Tarbutt, 5 T. K. 649. " Ansell V. Waterhouse, 2 Chitt. 1. ' Orange Bank v. Brown, 3 Wend. 158. ' Boson V. Sandford, 2 Show. 478. ' Bretherton v. Wood, 3 Brod. & B. 54, and mUe, § 423. ' Ibid. ' Powell V. Layton, 5 Bos. & P. 365, in which the opinion wag_ given by Sir James Mansfield, C. J., citing the opinion of Lord Mansfield, in Hainblv v. Trott, Cowp. 375. 360 LAW OF CARRIERS. [CHAP. X. count, or the custom of the realm, also stated, is intended by the pleader to be the foundation of the action. I apprehend the true rule now is, that the action solely upon the custom is an action of tort ; that in such action all or any number of the owners of a vessel, coach, or any kind of conveyance used by common car- riers, may be used, and judgment may be rendered on a verdict against all or a part only of those against whom the action is brought ; the plaintiff has his choice of remedies, either to bring assumpsit or case; and that when one or the other action is adopted it must be governed by its own rules. But if the plain- tiff states the custom, and also relies on an undertaking general or special, as in Boson v. Sandford,^ and some others, then the action may be said to be ex delicto quasi ex contractu, but in real- ity is founded on the contract, and to be treated as such. In Allen V. Sewall, in giving the opinion of the court, I remarked that all the copartners should have been sued, as the action was quasi ex contractu. It was unnecessary in that case to say any- thing on that point, as no plea in abatement had been pleaded ; and upon further examination I am satisfied the remark is incor- rect, for the reasons above assigned.^ It is certainly now settled in England that an action against a common carrier upon the cus- tom is founded on a breach of duty ; that it is a tort or misfea- sance ; and it follows that it is joint or several. In the case now under consideration all the counts are substantially upon the cus- tom and in case, though some of them contain expressions similar to those used in actions of assumpsit ; but there is none of them which relies upon any undertaking of the defendants, and they all state the gravamen to be a breach of duty. I am, tlierefore, of opinion that an action on the case against a common carrier be- longs to the class of actions arising upon a tort or misfeasance ex delicto ; and that such actions, being as well several as joint, it is unnecessary to join all the tort-feasors."^ § 427. It has been said that if the plaintiff himself shows in his declaration or other pleading that the tort was jointly, done by the defendant and A. B., the action shall abate ;* but Mr. Ser- ' Boson V. Sandford, 2 Show. 478. " Allen V. Sewall, 2 Wend. 338. The action in this case was an action on the case as for a tort. ' See also Weed v. Schenectady R., 19 Wend. 534. ' Briokhead v. Archbishop of York, Hob. 199. CHAP. X.] ACTIONS AGAINST. 361 geant Williams observes, there is no ground for the distinction.^ The position which was advanced, that where there is any doubt as to the parties defendants, it is better, if possible, to declare in tort rather than ex contractu, because the consequences of a mis- joinder or nonjoinder are less serious in the former than in the latter case, is therefore entirely supported.^ § 428. Another advantage of declaring in case upon a tort, when the circumstances are such as to give the plaintiff an elec- tion, is, that it is not necessary to state the undertaking with as much form as is required in an action of assumpsit;^ for it is a general well-settled principle, that in declaring on an executory contract, great exactness is demanded, and the plaintiff miist prove his case as laid.* In all cases where the action is not on the contract, but for a breach of collateral duty, the g-ist is a per- sonal tort ; ^ and it is enough that the proof conforms substantial- ly to the statements in the declaration.^ Thus, where the allega- tion was negligence in the conduct and management of the fires in the furnaces of a steamboat, while such boat was passing the plaintiff's building, it was held competent to prove that the fires were unusually large when the. boat left the dock, shortly before.^ § 429. In an action on the case against a common carrier, it is not necessary to state what his duty was ; it being sufficient to state, as inducement, that he is a common carrier, the delivery of the .goods, &c., to be carried from A to B for certain hire or ' 1 Wms. Saund. 291 ; Coll. on Part. 640. ' See Browoe on Actions at Law, 310 ; 2 Chitt. PI. 156, note (h). This is not merely a formal distinction. A court of law will not sustain an action for con- tribution between two joint trespassers ; or between defendants condemned in damages for a joint offence, or cause of action arising ex delicto : and the defend- ant on whom the whole is levied has no remedy over. And there appears to be no decision to the contrary in Chancery. Per Chancellor Kent, in Peck v. Ellis, 2 Johns. Ch. 136, and the cases there cited of Lingard v. Bromley, 1 Ves. &B. 117; Phillips V. Biggs, Hard. 164. ' Per Parke, Baron, in Wyld v. Pickford, 8 M. & W. 443. See opinion of Cowen, J., in Weed v. Schenectady R., and the cases there cited. ' Zell V. Arnold, 2 Penn. 292, Opinion of Gibson, C. J., who said it was em- phatically the gravamen in an action against a barber for barbering his customer, negligenter et inarlificialiter. Everard v. Hopkins, 2 Bulst. 333. 'Ibid.; 1 Arch. N. P. 412. ' Cook V. Champlain Trans. Co., 1 Denio, 91. 362 LAW OF careieeS. [chap.x. reward ; and, as injury, that the defendant lost the goods through negligence-, omitting the allegation of any promise.^ The liability of a common carrier for the loss of goods being a liability founded on the custom of the realm, it is not only unnecessary, but improp- er, to recite such custom ; because it tends to confound the dis- tinction between special customs which ought to be pleaded, and the general customs of which the courts are bound to take notice without pleading.^ 5. Declcbration in Action on the Case may contain a Coimt in Trover. § 430. Another advantage of bringing an action on the case ' 1 Arch. N. P. 412 ; and see opinion of Cowen, J., in Weed v. Schenectady 1R., ub. sup. " 1 Chitt. PJ. 248. As it respects the inducement, the declaration states : " For that whereas the defendant before and at the time of the delivery of the goods and chattels to him as next hereinafter mentioned tras, and thence hitherto has been and still is, a common carrier of goods and chattels for hire from to ; and whereas, also, the plaintiff, whilst the defendant was such common carrier as aforesaid, to wit, on , caused to be delivered to him the said de- fendant, and the defendant then accepted and received of and from the plaintiff a certain box containing divers goods and chattels, to wit [specifying them], of ■the plaintiff of great value, to wit, of the value of dollars, to be safely and securely carried and conveyed by him the said defendant from aforesaid to aforesaid, and there, to wit, at aforesaid, safely and securely to be de- livered for the plaintiff, for certain reasonable reward to him the defendant in that behalf " In respect to the injury: "Yet the defendant, not regarding his duty as such common carrier as aforesaid, but contriving and fraudulently in- tending craftily and subtly to deceive, defraud, and injure the plaintiff in this behalf, did not, nor would, safely or securely carry or convey the said box and its contents aforesaid from aforesaid to aforesaid, nor there, to wit, at aforesaid, safely or securely deliver the same for him the plaintiff; but, on the contrary thereof, the said defendant, so being such common carrier as afore- said, so carelessly and negligently behaved and conducted himself in the prem- ises, that by and through the carelessness, negligence, and fault of the defendant in the premises, the said box and its contents aforesaid, being of the value afore- said, became and were wholly lost to the plaintiff." Then as to the damage: " Whereby, &c. (stating special damage, if any) to the plaintiff's daniage of dollars, and thereupon he brings suit." 1 Arch. N. P. 438. The plea of "not guilty " in this case operates a denial of the loss or damage, but not of the re- ceipt of the goods by the defendant as a carrier for hire, or for the purpose for which they were carried. Ibid. The advantages of an action on the case, other than those that the defendant cannot plead in abatement the nonjoinder of other parties as defendants, and that the plaintiff may recover if he prove one of sev- eral defendants to be liable, which he cannot do in assumpsit, are explained by Lord F'lenborough, in Govett v. Baduidge, 3 East, 70. CHAP. X.] ACTIONS AGAINST. — TEOVEE. 363 against a carrier for a breach of duty is, that a count in trover may be joined with the other counts. In the case of Dickon v. Clifton,^ the declaration was in case with a count in trover ; and Lord C. J. Wilmot observed : " I own that in many books it is re- ported, that trover and a count against a common carrier cannot be joined, but common experience and practice is now to the con- trary." The true test, said he, " to try whether two ^jounts can be joined in thd same declaration, is to consider and see whether there be the same judgment in both, and not whether they require the same plea ; and wherever there is the same judgment in both, I think they may be joined." Olive, J. said : " I am of my lord's opinion, that the true test is to see whether both counts require the same judgment ; and in this case they do, and the plaintiff must have judgment." Lord EUenborough, C. J., in Govett v. Radnidge,^ recognizing the observation of Lord C. J. Wilmot in the case just cited, added, " that when the counts were framed in this manner, it was then the daily and well-warranted practice to join them." ^ § 431. An essential component part, however, of the right to maintain a count in trover, is a conversion by the defendant, which term denotes an act, and is therefore in legal as well as in ordinary construction very different from an omission.* A conversion is, in the language of the law, a misfeasance ; ^ it con- sists in the commission of a tortious act, and is (to be more defi- nite) the wrongful assumption of the right of ownership over property to the prejudice of the superior owner ; as, taking prop- erty by assignment from one who had no authority to dispose of it.^ The very assuming, says Lord Holt, to one's self the right to ' Dickon v. Clifton, 2 Wils. 319. ' Govett ». Radnidge, 3 East, 69. ' In an action on the case, the counts may be joined with a count in trover. M'Cahan v. Hirst, 7 Watts, 1 75. A count in trover was joined with counts in case in Dwight v. Brewster, '1 Pick. 50 ; and see also Moses o. Norris, 4 N. H. 304; Wyld v. Pickford, 8 M. & W. 443 ; and see 'ante, '§§ 3*8, 63 ; Kooke v. Mid- land R. (County Ct. Appeal), 14 Eng. L. & Eq. 175 ; Emery v. Fanning, 9 Barb. 176. * Ross V. Johnson, 5 Burr. 2827 ; Dwight v. Brewster, 1 Pick. 50. For the distinction between misfeasance and negligence, see ante, § 12, and 2 Strob. 67. ' M'Combie v. Davies, 6 East, 538. 364 LAW OF CAKKIEES. [CHAP. X dispose of another man's goods, is a conversion ; ^ (o) and accord- ingly, it has been holden, that if a carrier draw out a part of a vessel and fill it up with water, it is a conversion of all the liquor.^ It is therefore very clear, that if a carrier should sell and transfer the goods intrusted to him for transportation, it is a conversion, because the bailment would be ended.^ A undertook to carry flour from B to a certain place, and through mistake deposited by the way a part of the flour, which was taken away by C. On the refusal of B to receive part only, C took the remainder and paid A for the whole. This was held to amount to a conversion by the carrier, which would support a count in trover.* The master of a ship which is completely wrecked in a foreign port has no power of selling the goods on freight saved from the wreck, unless there be an absolute necessity for such sale ; ^ and such sale, though bond fide and in market overt, is not binding on the owner of the goods, if the condxict of the vendee imports knowledge of the in- firmity of the master's title to sell.^ § 432. So a count in trover will be supported by a delivery of the goods by the carrier or his servant to a wrong person, even ' Baldwin v. Cole, 6 Mod. 212. A carrier may be sued in trover for selL'ng the goods. Cooper v. Willomatt, 1 C. B. 672; Bates v. Stanton, 1 Duer, 79; Buel V. Pumphrey, 2 Md. 261. ' Richardson v. Atkinson, 1 Stra. 576. ' See ante, § 349, et seq. Every bailee of goods for hire, by selling them, de- termines the bailment ; and the bailor may maintain trover against the purchaser, though the purchase was lond fide. Cooper v. Willomatt, 1 C. B. 672. * BuUard v. Young, 3 Stew. Ala. 46. See also Herman v. Drinkwater, 1 Greenl. 27. ' See ante, § 354, and the authorities there referred to. ° Freeman v. East India Company, 1 Dowl. & K. 234 ; and see also as to when trover will lie, ante, §§ 38, 63. If any bailee for hire of a thing for a hmited period should sell the thing, the bailment would be ended, and a suit might be maintained against him by the bailor for a tortious conversion thereof. Story on Bailm. § 413 ; Sargent v. Gile, 8 N. H. 325. A judgment in an action of assumpsit against a bailee for a breach of his contract to transport and deliver the property bailed, in which the owner has recovered damages for the value of the property, without satisfaction, is no bar to an action of trover against a third person who has pur- chased the property. Hyde v. Noble, 1 N. H. (2d series) 494. 1 (a) If a carrier refuses to deliver goods except on a condition which he has no right to impose, this is a conversion, and the owner need not tender the freight before suit. Adams v. Clark, 9 Cush. 215. CHAP. X.] ACTIONS AGAINST. — TEOVEE. 365 though such mis-delivery occurred by mistake ; ^ (a) and that there has been no intentional wrong makes no difference.^ A mis-delivery may be made by a carefiil person, who has been deceived by an artifice calculated to circumvent the most care- ful person, and still it is a conversion, (though not necessarily a proof of want of ordinary care,) because it gives the dominion over the goods to another.^ Therefore, trover can be supported against a carrier who, under a forged order, delivers goods to a wrong person.* § 433. But where the act itself is not of a character as decisive as in the above-mentioned cases, other circumstances then became requisite to show a conversion ; and for this purpose a demand and refusal are usually relied on to make the act of conversion complete. The mere non-delivery of the goods will not constitute a conversion on the part of the carrier ; but if he has them in his possession, and refuses to give them up on demand, it is evidence of a conversion. But tlie demand and refusal are merely evidence of a conversion, and will not establish it where it appears that no conversion has taken place ; as where the goods in the carrier's custody are proved to have been lost through negligence, or have been stolen ; and therefore a count in trover will not be supported in such cases, though a count in case will be.^ (6) In Dwight v. ' See ante, §§ 324-326. If a warehouseman mis-deliver by mistake, it is a conversion, because it is an act of commission, and not merely omission, as the loss is. Devereux v. Barclay, 2 B. & Aid. 702. ' Ibid. ; Hawkins u. Hoflfman, 6 Hill, 588 ; Clark v. Spence, 10 Watts, 335, per Eogers, J. ; Willard v. Bridge, 4 Barb. 361. = Per Parke, B., in Wyld v. Pickford, 8 M. & W. 443 ; Youl v. Harbottle, Peake, N. P. Cas. 49. ' Ante, § 322; and see Lubbock v. Inglis, 1 Stark. 104. ' Anonymous, 2 Salk! 655 ; Bull. N. P. 44. Said by Lord Ellenborough : " That what begins in contract, a non-performance of what the party undertakes to do ", or a bare non-delivery of what he undertook to deliver, is not to be con- sidered as of itself amounting to a tortious conversion. The principle was recog- nized some time ago in the K. B. in an action against a carrier for not delivering (o) Claflin v. Boston R., 7 Allen, 341. (6) A carrier is liable in damages for an omission to deliver goods in a reasonable time, but the owner cannot refuse to receive the goods and claim as for a con- version. Scovill ». Griffith, 2 Kern. 509. If a carrier claims to detain goods upon two causes of lien in such a way as to dispense with a tender of the amount claimed on either, he is guilty of a conver- sion, and no tender need be shown, unless he can sustain both causes. Kerford v. Mandel, Am. ed., 5 H. & N. 931. 366 LAW OF CARRIERS. [CHAP. X. Brewster, in Massachusetts,^ the declaration (which contained a count in trover) was on the undertaking of the defendants (stage- coach proprietors) to carry for the plaintiffs a package containing bank-notes, which bank-notes were by the defendants lost. The court held, that the count in trover was not supported, because there was no evidence of any actual conversion, or of any demand and refusal ; that the bank-notes came lawfully into the posses- sion of the defendants, and that some misapplication of them, or refusal to deliver them, must be proved to entitle the plaintiffs to recover on a count in trover. The same doctrine was held by Bronson, J., in delivering the opinion of the court in Hawkins v. Hoffman, in New York.^ (a) 6. Action of Assumpsit. § 434. The action of assumpsit is the well-known and common remedy for the breach of a contract not under seal ; and it not only lies upon all express contracts not under seal, but also in all cases where the law implies a contract. When a person under- takes any ofiice, employment, trust, or duty, he thereby, in con- templation of law, impliedly contracts with those who employ him, to perform that with which he is intrusted, with integrity, dili- gence, and skill ; and if he fails to do so, it is a breach of contract for which the party may have his remedy, in most cases, by action of assumpsit as well as by action on the case. K, for instance, goods. If the carrier says he has the goods in his warehouse, and refuses to de- liver them, that will be evidence of a conversion, and trover may be maintained, but not for a bare non-delivery without any such refusal." Anon. 4 Esp. 15T; and see Attersol v. Bryant, 1 Camp. 409, and Opinion of Lord Kenyon in Toul V. Harbottle, ub. sup. ; and Koss v. Johnson, 5 Burr. 2825 ; Buckmaster b. Mower, 21 Vt. 204. (6) ' Dwight V. Brewster, 1 Pick. 50. " Hawkins v. Hoffman, 6 Hill, 588. And see also Moses v. Norris, 4 N. H. 304 ; Graves v. Tickrior, 6 lb. 537 ; Beardslee v. Richardson, 11 Wend. 25. And see ante, §§ 38, 68. (o) See Eome R. v. Sullivan, 14 Ga. 277. No demand is necessary before commencing an action for property lost or destroyed by a person having it in cus- tody. Alden v. Pearson, 3 Gray, 342. Where a carrier sells goods and claims to retain the proceeds for the freight, and sues the owner of the goods for the freight, and he is not entitled to any freight, the owner of the goods may main- tain an action for the proceeds of the sale without any previous demand. Say- ward V. Stevens, 3 Gray, 108. (J) Robinson v. Austin, 2 Gray, 564 ; Bowlin ». Nye, 10 Cush. 416. CHAP. X.] ACTIONS AGAINST. — ASSUMPSIT. 367 through any gross and culpable negligence of an attorney, his client be damnified, the client may have his remedy, by action of assumpsit or upon the case. So if a common innkeeper allow the goods of his guests to be stolen, or a farrier lame a horse in the shoeing of him ; and so if a common carrier or bargemaster lose or injure goods given to him. to carry. In all these cases of implied promises, they are in law treated exactly as if they were express promises ; and the declaration states the promise exactly as the kw implies it.^ But assumpsit does not lie where there is no cer- tain duty or contract express or implied ; and where there is an impliedjpromise, an express promise different from the implied one cannot be stated in the declaration, unless there be some other consideration to support it.^ § 435. By considering the transaction between a carrier and his employer as constituting a contract between the parties, and by adopting accordingly the action of assumpsit, the plaintiff has the advantage of joining the common money counts, if he has other causes of action to which they are applicable.^ Another ' 1 Arch. N. P. 40. ' 1 Steph. N. P. 238 ; 1 Arch. N. P. 41 ; Hopkins v. Logan, 5 M. & W. 241. ' I Chitt. PI. 115, 418. The following is Mr. Chitty's form of declaration against a carrier by land (2 Chitt. PI. 355, 7th edit.) : " For that whereas the said defendant, before and at the time of the making of his said promise and un- dertaking hereinafter next mentioned, was a common carrier of goods and chat- tels for hire, in and by a certain wagon (or ' coach '), from a certain place, to wit, from f to a certain other place, to wit, to , to wit, at, &c. (venue). And the said defendant being such carrier as aforesaid, the said plaintiff heretofore, to wit, on, &c. (day of delivery or about it), at, &c. (venue), aforesaid, at the special instance and request of the said defendant, caused to be delivered to the said de- fendant, so being such carrier as aforesaid, at, &c. (venue), aforesaid, certain goods and chattels, to wit, &c. [describe them minutely or as in troverj, of the said plain- tiff, of great value, to wit, of 1, of lawful money of Great Britain, to be taken care of, and safely and securely carried and conveyed by the said defendant, as such carrier as aforesaid, in and by the said wagon (or ' coach ') from; &c., afore- said, to, &c., aforesaid (or merely say to, &c., aforesaid, omitting the place from whence they were to be carried), and there, to wit, at, &c., aforesaid, to be safely and securely delivered by the said defendant for the said plaintiif; and in con- sideration thereof, and of certain reward to the said defendant in that behalf, he tiie said defendant being such carrier as aforesaid, then and there, to wit, on the day and year aforesaid, at, &c. (venue), aforesaid, undertook, and faithfully prom- ised the said plaintiff to take care of the said goods and chattels, and safely and securely to carry and convey the same in and by the said wagon (or ' coach '), from, &c., aforesaid, to, &c., aforesaid (or to, &c., aforesaid), and there^to wit, at, so., aforesaidj safejy and. securely to deliver the same for the said plaintiff. And 368 LAW OF CARKIEKS. [CHAP. X. advantage of the action of assumpsit is, that it will survive against the executor.! On the other hand, the plaintiff is bound to sue all the parties who are jointly liable, and must prove that all the defendants in the action are liable, which we have seen is not so, if he declares in an action on the case for a tort. In declaring in the form of assumpsit, the plaintiff is also precluded from joining a court in trover, inasmuch as counts upon a promise and upon a tort cannot be joined.^ But assumpsit is maintainable when although the said defendant, as such carrier as aforesaid, then and there had and received the goods and chattels for the purpose aforesaid, j'et the said defendant, not regarding his duty as such carrier, nor his said promise and undertaking so made as aforesaid, but contriving and fraudulently intending, craftily and subtly, to deceive and injure the said plaintiff in this behalf, hath not taken care of the said goods and chattels, or safely or securely carried or conveyed the same from, &c., aforesaid, to, &c., aforesaid (or to, &c., aforesaid), nor hath there, to wit, at, &c., aforesaid, safely or securely delivered the same for the said plaintiff; but, on the contrary thereof, he, the said defendant, being such carrier as aforesaid, so carelessly and negligently behaved and conducted himself, with respect to the said goods and chattels aforesaid, that by and through the mere carelessness, neg- ligence, and improper conduct of the said defendant and his servants in this be- half, the said goods and chattels being of the value aforesaid, afterwards, to wit, the day and year aforesaid, at, &c. (venue), aforesaid, became and were wholly lost to the said plaintiff, to wit, at, &c. (venue), aforesaid." Then add a general count for not taking proper care of the goods. (2 Chitt PI. 342, 7th edit.) " And whereas also, heretofore, to wit, on, &c. (any day vMe the defendant had the goods, and before title of declaration) j at, &c. (venue), in con- sideration that the said defendant at his special instance and request, then had the care and custody of divers goods and chattels of the said plaintiff, to wit, goods and chattels of the like number, quantity, quality, description, and value, as those in the said first count mentioned [or if^this be the first courU on the subject, set out the goods and value'\, he, the said defendant undertook, and then and there faith- fully promised the said plaintiff to take due and proper care thereof, whilst the said defendant so had the care and custody of the same ; yet the said defendant, not regarding his said promise and undertaking, but contriving and intending to injure and defraud the said plaintiff in this behalf, whilst the said defendant so had the care and custody of the said goods and chattels, took so little, and such bad and improper care thereof, that the same afterwards, to wit, on the day and year aforesaid, &c. (venue), aforesaid, became and were greatly damaged and in- jured, and wholly lost to the said plaintiff." [Add counts for money had and received and upon an account stated.'] • 1 Chitt. PI. 116. Case will not lie against an executor or administrator of a carrier, because it is in tort, and the plea is " not guilty," but assumpsit, which is another action for the same cause, will lie. Per Lord Mansfield, in Hambly ». Trott, Cowp. 375. And see 2 Greenl. Ev. § 208; Patton w.M^grath, 1 Bice,, 162. 2 As was conceded in Corbett v. Packington, 6 B. & C. 268; 2 Saund. 117 «; 1 Chitt. PI. 156. CHAP. X.] ACTIONS AGAINST. — THE DECLARATION. 369 trover will lie, as -whore the cause of action consists in a misfea- sance, where, for instance, the carrier, instead of conveying the parcel according to his directions, transfers it to another carriey for that purpose, whereby the parcel is lost.^ And trover even will lie against an executor for chattels continued in specie in his hands, the conversion being laid to have been by the execu-' tor.2 7. Distinctive Character of the Declaration. § 436. There has been a diversity of opinion not only as to the proper remedy in particular cases, but as to the distinctive feature in the declaration.^ The general rule, as we have seen, being that in actions ex delicto, the non-joinder of a co-defendant cannot be pleaded in abatement, it has, in England, been a matter of doubt, whether such a plea vrould be good to a declaration framed in case, but founded on contract ; and whether judgment could, as in actions founded on tort, be given for some defendants and against others.* In Weall v. King,^ it was held, that an action on the case, alleging a deceit by means of a warranty, though laid in tort, was founded on contract.^ § 437. In the case of Pozzi v. Shipton,' the declaration con- tained no words of contract, but, on the other hand, it did not expressly aver that the defendants were carriers. The Court of King's Bench, however, were of opinion, that the declaration might be read as founded on the general custom of the realm, and consequently that a verdict which had been obtained against one defendant and in favor of the other was maintainable. The dec- laration, which was in case, stated that the plaintiff delivered to the defendants, and they accepted and received from him, goods, to be taken care of and conveyed by the defendants from Liver- pool to Birmingham, and there delivered to A., for the plaintiff, ' Sleat V. Fagg, 5 B. & Aid. 349. ' Hambly v. Trott, Cowp. 373. ' See opinion of Gibson, C. J., in Smith v. Seward, 3 Barr, 345 ; and opimon of Lord Ellenborough, in Govett v. Kadnidge, 3 East, 70. ' But now in England (by Stat. 11 Geo. 4, and 1 Will. 4, c. 68, § 5), the non- joinder of a co-defendant in assumpsit against common carriers, is no ground for. pleading in abatement. Brown on Part, to Actions, 156. ' Weall V. King, 12 East, 452. This decision is recognized by the court in Hunt v. Wynn, 6 Watts, 47. And see Pittsburgh v. Grier, 22 Penn. State, 54. ' Pozzi V. Shipton, 8 A. & E. 963. 24 870 LAW OF CAEBIEKS. [CHAP. X. for reasonable reward, to the defendants in that behalf; and thereupon it became the duty of the defendants to take due care of such goods while they so had the charge thereof, for the pm- pose aforesaid ; and to take due and reasonable care in and about the conveyance, and delivery thereof, as aforesaid ; yet the defend- ants, not regarding their duty, &c., did not nor would take due care, &c., and that the goods were injured to, the plaintiff's damage. • At the trial it was proved satisfactorily, that the defend- ant, against whom the verdict was obtained, was a common car- rier, and it was not objected at the time, that proof of an express contract was necessary in order to sustain the declaration. Under these circumstances, the Court of King's Bench refused to dis- turb the verdict, observing that, as the language of the declaration was consistent with the action, being founded on the general cus- tom ; and as there were' no words of express contract, the court, after verdict, was bound to read it as founded on the custom ; and that it was not then necessary to say, whether the want of an express averment that the defendants were common carriers for hire would have been good on special demurrer.^ (a) § 438. In an action on the case, in Connecticut, alleging that the defendants, being joint proprietors of a line of stage-coaches from Hartford to Albany, undertook, in consideration of a certain sum paid by the plaintiff, to transport him and his baggage from the former to .the latter place, within a certain time specified ; and that, having received the plaintiff and his baggage for that purpose, he detained the same on the road, and failed and neg- lected, to perform their undertaking ; it was held that the plain- tiff could not recover against any of the defendants without proving a joint undertaking as alleged against all. Hosmer, C. J., who delivered the judgment of the court, refers to the estab- lished and obvious distinction between an action founded on con- tract, and one founded in tort ; and said that the plaintiff's action was founded on contract and the non-performance, without the allegation of misfeasance or malfeasance ; therefore, the plaintiff must, in every essential particular, prove the contract as he had alleged it.^ In the case of Patton v. Magrath, in South Carolina,' » This case recognized in Marshall v. York R., 11 C. B. 655, 7 Eng. L. & Eq. 519. ' Walcott V. Canfield, S Conn. 194. • Patton V. Magrath, 1 Rice, 162. (a) Tattan ti. Great Western R., 2 Ellis & E. 844. CHAP. X.] ACTIONS AGAINST. — THE DECLARATION. 371 the court considered, that whether the declaration be considered as strictly a declaration in assumpsit, or as a declaration in case ex quasi contractu, the plaintiff must sue all joint contracting parties, or the defendants may plead in abatement ; and that he must sue in the same action only the joint contractors, or he will fail at the trial. § 439. It has been asserted,^ that the case of Corbett v. Pack- ington ^ has put the law on the subject of the distinctive feature of the declaration on satisfactory ground, by making the presence or absence of an averment, not of promise only, but of considera- tion also, the criterion ; for it is impossible to conceive of a prom- ise without consideration, any more than a consideration without a promise, as an available cause of action ; and when a considera- tion is not laid, the word " agreed " or " undertook," or even the more formal word " promised," must be treated as no more than inducement to the duty- imposed by the Common Law. In Smith v. Seward, in Pennsylvania,^ it was expressly held, that an averment of a promise and a consideration, are both essential to a declara- tion in contract ; and that hence, a declaration averring an under- taking, ill consideration that the public should be conveyed by means of defendant's ferry, and for hire, to receive and safely to convey, and that the plaintiff learning the said offer, did use the ferry, and commit his horse to defendant, in consideration of an undertaking to convey, was in tort, 8. As to the Allegations, Sfc, in the Declaration. § 440. Having endeavored to point out the difference between the two modes of proceeding against carriers on their liability to ' their employers, by action on the case and by the action of as- sumpsit, and to show the advantages peculiar to each ; and having given the form of declaring in each ; * it is now proposed to con- sider more in detail the allegations, &c., in declaring in each. It IS laid down, that, though the remedy by action on the case against carriers is on some accounts preferable to assumpsit, yet the form of action does not materially affect the evidence necessary to " Per Gibson, C. J., in Smith v. Seward, 8 Barr. 342. ' Corbett v. Packington, 6 B. & C. 268. ^ Smith V. Seward, uh. sup. Form in action on the case, ante, § 429, n. 3 ; Form in the action of assumpsit, ante, § 435, n. 3. 372 LAW OF CARRIERS. [CHAP. X. maintain it.^ The declaration in case must correctly state the contract, or the particular duty or consideration from which the liability results, and on which it is founded ; and a variance in the description of the contract, or the particular duty or con- sideration from which the liability results, and on which it is founded, though in an action ex delicto, may be as fatal as in an action in form ex contractu? As has been affirmed by a learned judge, " in ah action on a tort arising out of a contract, the state- ment of the contract is often as material as in an action on the contract; and in either form of action, if the variance is on a point which goes to the very essence of. the action, it is fatal." ^ As the inducement in declarations' ex delicto relates to material- matter, there will be a fatal variance, if, instead of relying on the general statement, the plaintiff enters upon a detailed statement,i and there be a misdescription. As in an action for slander of a physiieian, even if it be not necessary in general for the party to show that he has regularly taken his degree, it is necessary if the party allege in his declaration, that he had duly taken the degree of doctor of physic* . § 441. But in torts, the plaintiff may prove a part of his charge if the averment be divisible, and there be enough proved, to sup- port his case. In a declaration, for instance, for slandering the plaintiff in two trades mentioned in the declaration, should there be proof of one trade only, the proof will support . the declaration if the words apply to the latter trade.^ In respect to such divisi- bility there is, however, a material distinction between the state- ment of torts and of special contracts ; for in declaring upon the latter the contract must be stated correctly, and if the evidence differs from the statement, the whole foundation of the action fails, because the action is entire in its nature, and must be proved as laid.^ (a) A trival variation is fatal, inasmuch as the contract ' 2 Greenl. Ev. § 208; 1 Chitt. PI. 161, 162, 7tli edit. [125, 126]. ' 2 Greenl. Ev. §208; 2 Steph. N. P. 992; Max v. Roberts, 12 East, 89; Govett V. Radnidge, 3 lb. 70 ; Bretherton v. Wood, 5 Brod. & B. 54. * Per Bosanquet, J., in Ireland w. Johnson, 1 Bing. N. C. 162. * Moises V. Thornton, 8 T. R. 308 ; and see Rex v. Everett, 8 B. & C. 114. ' Figgins V. Cogswell, 3 Maule & S. 369. * 1 Chitt. PI. 334, 5th edit. (a) Hughes v. Great Western R., 14 C. B. 637, 25 Eng. L. & Eq. 347; Tork R. V. Crisp, 14 C. B. 527, 25 Eng. L. & Eq. 396 ; Slim v. Great Northern K., 14 C. B. 647, 26 Eng. L. & Eq. 297. CHAP. X.] ACTIONS AGAINST. — THE DECLAEATION. 373 given in evidence does not appear to be that on -which the plaintiff declares ; ^ and, therefore, where the declaration is on a promise to do several things, and one only is proved, there is a fatal variance. In an action of assumpsit against common carriers, the grst count in the declaration alleged that the defendants under- took and promisedj the plaintiff to carry and convey securely, by their coaches and railroad cars, a trunk containing certain goods, S(c,, and bank-bills ; but that they so carelessly conducted that the trunk and its contents were lost. The defendants moved a nonsuit, on the ground that there was- a variance between the con- tract as stated in the declaratfon^ and as proved on the trial ; that the contract, as set forth, was to carry the trunk and money of the ipkintiff, whereas it was proved that the trunk belonged to one M., a stranger. The court held, by Co wen, J., that the proof at most was of a contract with the plaintiff to carry the money only ; and that the declaration failed in describing correctly a special exec- utory contract, wherein great exactness is always demanded.^ So to allege a consideration for a promise, in addition to the true consideration, moving thereto, not supported by the proof, will be cause of nonsuit.^ The circumstance, that if assumpsit be adopted, the contract or promise must be" formally stated in the declaration, and that in case it isotherwise, constitutes the principal difference between the two forms of action.* ■ § 442. If the declaration in assumpsit state an absolute con- tract, and the proof is of a contract in the alternative, the plaintiff cannot recover, though he may have determined his option.^ , -Where it appears by the terms of the contract, for the breach of which the action is brought, it was at the option of the defendant to deliver this or that quantity of goods at one time, and the re- mainder at another, it ought to be thus stated.^ Where a con- ' BuU. N. P. 145 ; King v. Pippet, 1 T. R. 240. ' Weed V. Schenectady R., 19 Wend. 534. As no injustice had been done by the mere formal addition of " a trunk " in the declaration, the court had no doubt, by an equitable construction of the law of New York in respect to amendment, ■of their power to allow an amendment, by striking the " trunk " from the declara- tion. ' Stone V. Knowlton, 3 Wend. 374. * Jadin v. Samuel, 6 East, 333. ' See 1 Chitt. PL 309; Yelv. 76, note byMetcalf; Hilt v. Campbell, 6 Greenl. 109. ' Penny v. Porter, 2 East, 2 ; and see Yate v. Willan, lb. 134. 374 LAW OF CARRIERS. [chAP. X. tract was in the alternative to transport fifteen or twenty tons of marble from one place to another, it must be stated in the declara- tion according to the terms of it ; and if it be stated as an absolute contract, for the transportation of twenty tons, and not fifteen .- M' Alpine, 2 Stark. 552. ' • , = 2 Greenl. Ev. § 213 ; Mahew v. Nelson, 6 Car.,& P. 58. ' Tompkins v. Saltmarsh, 14 S. & E. 275, cited more fully, ante, § 40, and see the other cases there referred to. Beardslee v. Richardson, 11 Wend. 25. Sur- rounding circumstances, constituting parts of the res gestce, may always be shown to tiie jury, along with the principal fact. Bawson v. Haigh, 2 Bing. 104 ; Rid- ley w. Gyde, 9 lb. 349 ; Pool v. Bridges, 4 Pick. 378 ; Allen v. Duncan, 11 lb. 308; and that a party's own declarations may be given in evidence, if they are a part of the res gestce, see Millikin v. Greer, 5 Missis. 429 ; Postern v. Postern, 3 Watts & S. 127; Stitt V. Wilson, Wright, 505; Redden v. Spruance,'4 Earring. Del. 216; Jn re Taylor, 9 Paige, Ch. 611. ' 1 Greenl. Ev. § 108. " Enos v. Tuttle, 3 Conn. 250. ' See opinion of Duncan, J., ante, § 40. Against a private carrier charged with the loss of goods by negligence, the common declaration in assumpsit is as (a) In an action against a railroad corporation by a passenger for the loss of his trunk, the admissions of the conductor, baggage-master, or station-master as to the manner of the loss, made in answer to inquiries in behalf of the passenger the next morning after the loss, are admissible in evidence against the corpora- tion. Morse v. Conn. River E., 6 Gray, 450. 390 LAW OF CAKKIEES. [CHAP. X § 469. In an action against a carrier for a loss, his agent or ser- vant is not generally a competent witness in his defence. The disqualification of the agent or servant consists in his having a direct interest in, the event of the suit ; or arising from his liabil- ity to his employer, in a subsequent action, to refund the amount of damages which the employer may have paid. This is the well- known rule as applicable to the relation of principal and agent, wherever that relation, in its broadest sense, may be found to ex- ist.i As, for example, to the case of the captain of a vessel, in an action against the owner of a vessel for deviation or for negli- gence,^ or to the case of a pilot, in an action against the owner and captain of a vessel for mismanagement while the pilot was in charge,^ or of a guard of a coach, implicated in the like mismaa- agement, in an action against the proprietor.* Neither of such persons are competent, without a release, to give testimony, the direct legal effect of which will be to place themselves in a situa- foliows : " For that on , in consideration that the plaintiff at the request of the said (defendant) had delivered to him certain goods and chattels, to wit [here describe them], of the value of , to be safely conveyed by him from to , for certain reward to be paid to the said (defendant'), he, the said (defend- ant), promised the plaintiff to take good care of said goods, while he had chargg of the same, and with due care to convey the same from to aforesaid, and there safely to deliver the same to the plaintiff (or to , as the dose may be). Yet the said (defendant) did not take due care of said goods while he had charge of the same as aforesaid, nor did he with due care convey and deliver the same as aforesaid ; but on the contrary, so carelessly and improperly conducted in regard to said goods, that by reason thereof they became and were wholly lost to the plaintiff.',' 2 Greenl. Ev. n. (2) to § 210. ' It has frequently been held, that where negligence is imputed to the plaintiff's agent, such as if proved would preclude the plaintiff from recovering, such agent is an incompetent witness for the plaintiff. 1 Stark. E v. IIG; 1 Greenl. Ev. § 394 ; Thompson v. Lothrop, 21 Pick. 336 ; Dudley i>. BoUes, 24 Wend. 465. But if a servant be in charge of the property of his master which has been de- stroyed or injured by the negligene of another, the servant is a competent wit- ness. Ibid. " Kothero v. Elton, Peake's Cas. 84 ; De Symonds v. De la Cour, 5 Bos. & P- 374. The captain of a canal boat is not a competent witness for the owner, without a release. Humphreys v. Reed, 6 Whart. 435. = Hawkins v. Finlayson, 3 Car. & P. 305. ' Whitamore v. Waterhouse, 4 Car. & P. 383. In an action for negligently driving a mail-coach against the plaintiff's wagon, his wagoner was held to be m- competent, without a relejise ; although he swore he left sufficient room for the defendant's mail, and although the jury found by their verdict that he was not to blame. Moorish v. Foote, 2 Moore, 508. CHAP. X.] ACTIONS AGAINST. — EVIDENCE. 891 tion of security against a subsequent action.^ (a) But factors, brokers, forwarding merchants, &c., are competent witnesses against tlie carrier, when offered to prove the receipt and delivery of the goods, and other acts within the scope of their employment. The exception to the general rule, that they may testify though interested, is founded in public convenience and necessity ; for otherwise affairs of daily and ordinary occurrence could not be proved, and -the freedom of trade and of commercial intercourse would be inconveniently restrained.^ § 469 a. But it is not easy always to draw a precise line be- tween the cases of servants called by their masters where the mat- ter drawn in question is the carelessness or negligence of the servant, and the cases where servants and agents are called to acts done in the usual course of their employment, and where their masters may gain or lose by their testimony. In the former they ' 1 Greenl. Ev. 394 ; 1 Phillips, Ev. 61 ; 1 Stark. Ev. 115-118, 3d Lond. edit. There is a distinction between those cases where the judgment will be evidence of the material facts involved in the issue, and those where it will be evidence only of the amount of damages recovered, which the defendant may be compelled to pay. 1 Greenl. Ev. 393. ' 1 Greenl. Ev. § 476. In Thome v. Hallett, in the Common Pleas (see Bos- Ion Journal of June 1, 1849), the plaintins were merchants in Vergennes, Vt. ; and they brought their action against the captain of the schooner Henry Curtis, to recover the value of a hogshead of sugar lost on the passage from Boston to Troy. The plaintiffs had purchased a large quantity of goods in Boston, including the lost hogshead ; and they were properly directed to the care of M. D. Hall, at Troy ; and were delivered on board the schooner then bound to Troy. Hall was a forwarding merchant at Troy ; and he as well as Flinn, the master of the canal- boat which took the rest, of the plaintiff's goods from Troy to Vergennes, testified that the hogshead was not received with the other goods from the Henry Curtis. The defendant's counsel objected to the competency of Hall and Flinn to testify, on the ground that they might be liable for the loss of the goods, and they were interested, as their testimony tended to exculpate themselves. But as it appeared that neither of the witnesses had any interest in the canal-boat. Hall being a for- warding merchant only, and so not liable as a common carrier (see ante, § 75), and FUnn being hired by the month, C. J. Wells ruled, that they were competent witnesses. (a) If the plaintiff's claim or the defence rests on any misconduct of the agent towards his employer, for which the latter would be responsible to third persons, and the agent to him, the agent cannot testify without a release. If the agent is not liable, no release is necessary. Bailey v. Shaw, 4 Foster, 297. A release by one of several part-owners of a vessel is sufiicient to enable the master to testify. The Peytona, 2 Curtis, C. C. 21. 392 LAW OF CARRIERS. [CHAP. X. are held to be incompetent ; in the latter they are competent ; for it is difficult to perceive what interest the witness, has,. when it is considered it must be direct, and not contingent, possible, or uncertain.! (a) § 470. Upon the subject of burden of proof, in an action against a carrier for negligence, and as to the question upgn whom it lies, the rule in respect to gratuitous carriers has, already been laid down to be in conformity with the general rule of the law of, evi- dence, viz., that where the allegation is affirmative it is sufficient to oppose it by a bare denial, till it is properly established ; and that the proposition, though negative in its terms, must also be proved by the party who states it;^ as where there is a charge against a carrier without hire, of gross negligence, which is in the .nature of fraud.^ But although, in actions on the case and of as- sumpsit, the burden of proof is on the plaintiff to make out his case as he charges it, proof of demand and refusal, or an apparent conversion, in an action of trover, will put the defendant on his defence.* Wherever non-feasance or negligence is alleged, in an action on contract, the burden of proof is unquestionably on the plaintiff, notwithstanding its negative character;^ that is, the party making the allegation of loss or non-delivery must give some evidence in support of the allegation, notwithstanding its negative character.^ (6) In respect to the carriage of. goods for hire by persons who are not common carriers, it has appeared, that there are discrepancies in the authorities as to the application of ' Per Shaw, C. J., in Draper v. Norwich K., 11 Met. 505 ; Bent v. Baker, 13 T. E. 27 ; Greent). New Kiver Co., 4 T. R. 590. See ante, Chap. IV. ; 1 Greenl. Ev. Chap. III. Where the plaintiff alleges damage in consequence of the defendant's negligence in driving on the highway, the burden of proof is on the plaintiff to show ordinary care on ''his own part, and want of it on the part of the defendant. Lane v. Crombie, 12 Pick. 177. ' See ante, §§ 37, 38, for the authorities on this subject, and 1 Greenl. Ev. §80. * Ante, § 38, n. 2. ' 1 Greenl. Ev. § 81 ; and see ante, § 48, n. 2 ; also §§ 32, 33, 35. * 2 Greenl. Ev. 213; Tucker v. Cracklin, 2 Stark. Ev. 385,, (a) See Johnson v. Lightsey, 34 Ala. 169. (J) Woodbury v. Frink, 14 111. 279. And to charge a carrier with the loss of articles packed in a trunk, it must satisfactorily appear that the articles were not stolen after the trunk was packed and before delivery to the carrier. Mc- Questen v. Sanford, 40 Maine, 117. CHAP. X.] ACTIONS AGAINST. — EVIDENCE. . 393 the above rule.^ In cases which have been cited, it was con- sidered, that the fact of a loss by a carrier for hire, by secret .purloining of the goods in his hands, is such primd facie evidence of the "want of ordinary care as to compel the defendant to rebut it by proof of ordinary care ; and such is the opinion advanced by Sir William Jones.^ Where a public conveyance is overturned or breaks down, without any apparent cause, the law will imply negligence, and the burden of proof is on the owners to rebut that legal presumption.^ And the very occurrence of loss or damage to goods delivered to a private bailee for hire seems to be regarded, of itself, cogent evidence of' the want of ordinary care.*, TJhe reason it is so, and that it is sufficient, if the plaintiff oifers such evidence, as, in the absence of any counter testimony, affords ground of presuming that the allegation he makes is true, is,- that if proof of the negative were required, the inconvenience would be very great.^ However, in most' cases, the question of negli- gence is more a question of fact to be determined by the jury, under the particular circumstances, than of law.^ § 471. In an action against carriers for the loss of a parcel, the consignee's shopman, not knowing of the delivery, and believing he must have known it if a delivery had taken place, is primd facie evidence of non-delivery. In an action of assumpsit for .negligence in carriers in losing a parcel, in which the general issue was pleaded, it - appeared that the plaintiff had ; ordered goods to be sent by the defendants' stage-coach, and the consignor of the goods proved the giving the parcel to the defendants' coach- man, and that it was directed to the plaintiff. To show that it never came to hand, the plaintiff's shopman was called, who did not know of the delivery, but believed it could not have been delivered without his knowledge. HuUock, B., considered, that the evidence of non-delivery was sufficient to call on the defend- ants to prove a delivery by their porter, or some other witness ; because the plaintiff could not be expected to prove a non-delivery better than he had done.'' >' See ante, § 61, and the authorities there cited. ' Ante, § 48, et seq. ' Ware!). Gay, 11 Pick. 106. ' See ante, § 50. " 1 Greenl. Ev. §§ 78, 79. Ante, § 51, and the authorities there referred to, and § 184, et seq. ' Griffiths V. Lee, 1 Car. & P. 110. 394 . LAW OF CABEIERS. [CHAP. X. § 472. In respect to a loss by a common carrier, the burden of proof is, without any 'manner of doubt, upon him to show, that the loss was occasioned by the act of God or the public enemy|' though the burden of proof in an action on the case may be on the plaintiff to show, that the property did not safely reach its destination ; and yet, in assumpsit, it may be sufficient to prove the delivery of the property to the defendant, and then call upon him to account for it.^ If a cargo weighing a certain weight be delivered to him to be carried, and when the cargo arrives at its destination the weight be deficient, this is evidence from which a juj-y may infer negligence in the carrier ; and if the deficiency did not arise from the negligence of the carrier, it is incumbent on him to show that. It was proved in Hawkes v. Smith,^ that more than sixty-nine tons of bones were put on board the defend'- ant's vessel, and that, at |the end of the voyage, there were not sixty-nine tons, but a mucli smaller weight. The defendant pleaded that he took proper care of them, and did carry them safely in a reasonable time ; and also that the bones were put on board in a damp state, by reason whereof, and without any default of the defendant, they became decomposed, and the defendant^ therefore, could not perform his promise. By Rolfe, B. : " I think that this is evidence from which the jury may infer negligence ; and that if there was no negligence on the part of the defendant, lie should show that." * (a) ' See ante, § 202, and Chap. VI. generally. An authority not there cited is the case of King v. Shepherd, 3 Story, 349. In that case a box of gold sov- ereigns was shipped, to be carried from New York to Mobile, and the bill of lad- ing only contained the usual exceptions against " perils of the seas," and the ship ■was wrecked and the money lost. It was held, that the burden of proof was on the master and owners of the ship to show that the loss occurred by a " peril of the seas" ; and that, failing to do this, they were responsible for the loss, however it occurred. And see ante, § 188, et seq. ' Tucker v. Cracklin, 2 Stark. 385; Day v. Ridley, 16 Vt. 48. That the bur- den of proof may be turned upon the defendant by slight proof, see Griffiths v. Lee, ub. sup. ' Hawkes v. Smith, 1 Car. & M. 72. * As to loss of goods by decay, leakage, &c., see ante, §§ 210 - 214. (a) Alden u. Pearson, 3 Gray, 342; Clark v. Barnwell, 12 How. 280; The Schooner Emma Johnson, 1 Sprague, 527 ; The Ship Martha, Olcott, Adm. 140; • Zerega v. Poppe, Abbott, Adm. 397 ; Shaw v. Gardner, 12 Gray, 488 ; Ship How- ard u. Wissman, 18 How. 231 ; Hall v. Cheney, 36 N. H. 26. CHAP. X.] ACTIONS AGAINST. — EVIDENCE. 395 § 473. But where a common carrier has qualified his liability as such, by a general notice to all who may employ him, of any reasonable requisition to be observed on their part, in regard to the manner of delivery and entry of parcels, and the information to be given to him of their contents and rates of freight ; and it is proved that such notice is brought home to the knowledge of the employer, he (the carrier) then descends to the situation of a jrivate carrier for hire, and therefore the burden of proof of negligence. falls more upon the employer. But the burden of proof is on the common carrier to show clearly that the person with whom he deals has been fully informed of the terms of the notice.^ § 474. The law of evidence, in respect to the value of the goods lost by a- bailee, is of much importance. Where no fraud has been proved on the part of a bailee, the presumption as to the precise value will be against the demand of the plaintiff, unless he establishes the precise value by clear evidence. But if the con- duct of the bailee be tinctured with fraud, the presumption will be in favor of the plaintifFs demand. In assumpsit for goods sold by ■a liquor merchant, and the only proof as to the contents of the ifeottles delivered being by the plaintiff's servants, who could not speak to the quality of the contents, the jury, in the absence- of all fraud, were directed to presume them filled with the cheapest liquor with which the plaintiff dealt.^ So where the delivery of a bank-note was proved, but its denomination not shown, the jury were instructed to presume it to be of the lowest denomination in cijiculation.^ In the case of Armory v. Delamirie,* on the other hand, the presumption of the value of the thing in question was, on account of fraud in the defendant, in favor of the plaintiff. That case was, — a chimney-sweeper's boy having found a jewel, took it to the defendant, a goldsmith, to know its value. The de- fendant knocked out the stones, and returned the plaintiff the set- ting, refusing to give him back the stones. In trover for the value of the stories, Pratt, C. J. directed the jury, that unless the de- fendant would produce the stones, so as to show they were not of the finest water, they ought to presume against him, and make the ' See ante, §§ 54, 245, 247, et seq., 267, 268. ' Clunnes v. Pezzay, 1 Camp. 8. ' Lawton v. Sweeney, Exch. 1844, 8 Jur. 964, cited in 2 Greenl. Ev. § 255. ,* Armory K. Delamirie, 1 Stra. 505. 396 LAW OF CAERIEES. ICHAP.X.. value of the best jewels that would fit that setting the measure of their damages, (a) § 475. Supposing the delivery of a box or trunk to a carrier for conveyance, and the loss of it by him to be fully proved, (6) and that no person but the owner has knowledge of the particular con- tents, the question by what evidence, in an action for damages against the carrier, or in an action of trover for the gopo'ds, is the quality, quantity, and value of the goods to be ascertained and estimated by the jury, is one of great practical importance to the community, (c) In Butler v. Basing,^ the action was against the defendant as proprietor of a stage-wagon for the loss of a box, and Garrow, B., in sumpjing up to the jury, said : " With regard to the amount of the damages in case a verdict passes for' the plain- tiff, it is right that I should tell you that here is no distinct evi- dence of the contents of the box ; however, I should recommend you not to pare down the amount of damages, because the articles contained in it cannot be distinctly proved. It very often happen? that.persons, more especially those in the station of life in which the plaintiff is, pack their own clothes, and in such cases it must be always impossible to give evidence of the precise contents of the boxes or i portmanteaus. I should therefore recommend you, if you find for the plaintiff, to give damages proportioned to the value of the articles which in your judgment you think, the box jnight and did fairly contain." (d) § 476. Mr. Bell says : " The value of the parcel or thing lost may occasion difficulty, unless dispensed with by a general rule. A person cannot always have direct and positive evidence of the sum which may have been in his pocket-book when stolen from an inn ; or of the value of his luggage taken from a coach. In order ' Butler V. Basing, 2 Car. & P. 613. (a) A person who has acquired the possession of goods, and who has put it out of the power of the owner to show the quality and value of the property by any artifice or concealment, may be held liable for the value of the best quality of such goods. Bailey «. Shaw, '4 Foster, 297. (i) The delivery of a baggage check by a railroad company to a passenger is prima facie evidence that the company has the baggage. Davis n. Michigan R., 22111. 278; Dill u. South Carolina R., 7 Rich. 158. See Illinois Central K.«. Copeland, 24 HI. 332. (c) If a suit is brought by a special bailee of property lost, the owner may by releasing his interest in the property qualify himself as a witness. Morem k. Port- land S. P. Co., 35 Maine, 55. (d) This case was followed in Dill v. South Carolina R., 7 Rich. 158. CHAP. X.] ACTIONS AGAINST. — EVIDENCE. 897 to get quit of the difficulty, a very clumsy and dangerous remedy formerly prevailed in Scotland, namely, that the person should, iy Ids own oath, be allowed to establish that value against the carrier or innkeeper ; it being reserved to the court to restrain the claim." He further observes : "I should have no doubt that reasonable evidence -would now be required of the nature and vahie of the thing lost, fortified by the oath of the employer." ^ It iSi indeed very well known, that, as a general rule, a party is not comEetent to testify in his own cause ; but this general rule, like every other, has its exceptions ; and wecessiYj', either physical or moral, it has been said, dispenses with the ordinary rules of evi- deace.^ This principle of necessity is recognized in England in decisions which have been made on the statute of Winton, in which it. is held that the party robbed is, from necessity, a competent witness to prove the robbery, and of what sum or things he was robbed, in support of his own action.^ It is also laid down, that on, a trial at Bodnyr, coram Montagu, against a common carrier, a question arose about the things in a box, and he declared that tWs was one of those cases where the party himself might be a witness ex. necessitate rei; for every one did not show what was put in his box.* \ 476 a. The principle that necessity dispenses with the ordi- nary rules of evidence has been recognized in Pennsylvania, in an •action to recover the value of the contents of a trunk lost from a stage-coach, and the plaintiff was held to be a competent witness to prove the contents and the value of the articles composing them ; and, in giving the judgment of the court in this case, Gib- son, C. J. said : " On the ground of necessity, the plaintiff was competent, not only to specify the articles contained in the trunk, but to prove the value of them. Book entries by the parties' own hand are evidence, not only of sale and delivery, but also of price, wliich is a part of the contract. Originally such entries were al- lowed to prove, perhaps, no more than delivery ; but experience induced the courts to go further. Yet the value of merchandise, bearing as it does a determinate price in the market, might be ' 1 Bell, Com. 379, 380. ' Per Rogers, J., in Clark v. Spence, 10 Watts, 335 ; and see 1 Greenl. Ev. S 348, As to the testimony of witnesses who are interested being admitted ex necessitate, in the Admiralty, see post, § 670. ' EoUe, Abr. 686, 686, cited in Herman v. Drinkwater, 1 Greenl. 27. ' 12 Vin. 24, pi. 32. 3'98 tAW OF CAERIEES. [CHAP. X. more readily estimated from description than the more uncertain value of clothing, in every degree of wear, which the owner would he better able to estimate than a disinterested witness, who must, after all, found his judgment on the description which the owner may choose to give. Why trust to his data and not to his esti- mate ? It is as easy to give a false description as to overrate the value." ^ § 477. In Herman v. Drinkwater, a shipmaster having received a trunk of goods on board his vessel to be carried to another port, which on the passage he broke open and rifled of its contents ; the owner • of the contents proving the delivery of the trunk and its violation was admitted a witness in an action of trover for the goods against tlie shipmaster, to testify to the particular contents of the trunk, there being no other evidence of the fact to be ob- tained. The case was, however, an aggravated case, and exhibit- ed conduct of great moral turpitude on the part of the defendant. The plaintiff was an unsuspecting foreigner, ignorant of the lan- •guage of the United States, to which country the defendant be- longed. Having invested his property in certain articles of small bulk, he shipped them, packed in a trunk, on board the brig of which the defendant was master, then in the port of Loudon, who undertook to transport them to New York. He also engaged a passage for himself in the same vessel to accompany his goods, and sent on board his clothes and other baggage necessary for his personal accommodation ; but the defendant, indifferent as to the interest of the stranger, sailed without him ; and, on the passage, he violated the trunk, presented a part of the contents to his mate and crew, but kept the more valuable himself; professedly, be- cause he might be held responsible at a future day. Instead of sailing for New York, he sailed for, and arrived at, Portland ; and at the latter place disposed of a part of his plunder. In the mean time the plaintiff took passage in another vessel, and arrived at New York, where, not hearing of the defendant, he wrote to Port- l£|,nd where the vessel was owned. His correspondent applied to the defendant, who denied ever having received the -goods ; and it was not until certain of the articles sold in Portland were iden- tified beyond all question, by the particular description which the ' Whitesell v. Crane, 8 Watts & S. 369. See a like decision in Mad Eiver E. v. Fulton, 20 Ohio, 318, — contents of a trunk. As to amount of money in a trunk for travelling purposes, see Johnson v. Stone, 11 Humph. 419. QHAP.X.] ACTIONS AGAINST. — EVIDENCE. 399 pjaintiff had furnished, under oath, of the contents of the trunk, that the fact was established that the defendant had received and embezzled the property. To prove the particular contents, the judge, who presided at the trial, admitted the deposition or aifida- yit of the plaintiff, upon the ground of necessity ; he not having it in his power to establish the fact by other proof. The testimony was objected to on the part of the defendant, and a new trial granted. Weston, J., in giving the opinion of the court, said : " In the case before us, the plaintiff had sustained his action by proof not liable to objection ; but the extent of the damages to TYhich he was entitled could be ascertained only by his own testi- mony. As he was to accompany the goods himself, it is not to be presumed that he took any bill of lading or receipt from the de- fendant; and if he had, such an instrument does not usually spe- cify the particular contents of trunks and packages. The plain- tiff, therefore, unless his oath is admitted, must be deprived of an adequate remedy, although the justice of his claim. is most appar- Mit. The analogy betiyeen his case and that of the party robbed, in an action under the statute of Winton, is very striking ; and his testimony is strongly corroborated by circumstances. Upon the whole, we are all of opinion, that the deposition or affidavit of the plaintiff was rightly admitted, upon the ground of necessity."^ ' Herman v. Driukwater, 1 Greenl. 27. The defendant in this case was clearly ' guilty of a felony. A servant is guilty of felony in stealing his master's goods, although he has the custody of them for a particular purpose. East, P. C. 554, and 2 Stark. Ev. (3d Iiond. edit.) § 10. So where a butler steals his master's plate. East, P. C. and 2 Stark, supra. So if the servant has the goods for a specific purpose, as where money had been delivered to a servant to be delivered to a third person, arid he spent a part, and embezzled the rest. Bex v. Laven- ilen, East, C. P. 666. So where a carter went away with his master's cart, it was held that he was guilty of felony. Robinson's case, East, P. C. 565. Where a porter was sent by his master with goods to be delivered to a customer, and he ufoke open the parcel and sold them, it was held to be a felony. Rex v. Bass, Leech, 285, and 2 Stark, sup. ; and this is precisely the case of Herman v. Drink- water, cited above. But in all cases where the party has a legal possession of the property distinct from that of the owner, he is not guilty of felony in appropri- ating the goods, unless the possession be obtained with a felonious inlent to steal the goods, for then the party acquires no legal possession against the owner, for the law will not permit him to take advantage of his own wrong ; and in point of law no contract exists. 2 Stark. Ev. sup. The circumstances may be such, that the fact of selling the goods is prima facie evidence of an original felonious intent. If a carrier unpacks the goods, the very act itself determines the trust possession, and the subsequent taking is felonious, for the thing committed to his trust is single and entire. 21 H. 8 pi. 14 ; 1 Hawk. c. 33, § 5. 400 LAW OF CARRIERS. [CHAP. X § 478. In the case given in the preceding section the defendant had committed a gross fraud, and the party's own oath was al- lowed as evidence, in odium spoliatoris.^Qa) But it has been held that a bailor, though a plaintiff, may be a competent witness to prove the particular contents of a trunk, lost not by the carrier's fraud, but through his neg-Ugence ; that is, if a foundation be first laid for the party's oath down to the period to which the party is to speak ; as by proving the delivery of the trunk to the cai-rier, and the loss of it by his negligence.''' Yet it is proper that the admission of such testimony should be limited to clothing and personal ornaments. In Pudor v. Boston and Maine Railroad Co. ^ the plaintiff had laid the foundation of his action by proving that he had delivered to the company a box to be carried to a cer- tain place ; that the box was not delivered by the carrier ; that he had made a demand thereof ; and that the defendant admitted its loss. He then offered to show by his own testimony (it not appearing that he had any other means of showing it) what was ' Mr. Greenleaf says : " To the general rule, in regard to parties, there are some exceptions, in which the party's own oath may be received as competent tes- timony. One class of these exceptions, namely, that in which the oath in litem is received, has long been familiar in courts administering remedial justice accord- ing to the course of the Boman Law, though in the Common-Law tribunals its use has been less frequent and more restricted. The oath in litem is admitted in two classes of cases : first, where it has been already proved that the party against whom it is offered has been guilty of some fraud, or other tortious and unwar- rantable act of intermeddling with the complainant's goods, and no other evidence can be had of the amount of damages ; and secondly, where, on general grounds of public policy, it is deemed essential to the purposes of justice. An example of the former class is given in the case of the bailiffs, who, in the service of an execution, having discovered a sum of money secretly hidden in a wall, took it away and embezzled it, and did great spoil to the debtor's goods ; for which they were holden not only to refund the money, but to make good such other damage as the plaintiff would swear he had sustained. Childrens v. Saxby, 1 Vern. 207, 1 Eq. Ca. Ab. 299. So where a man ran away with a casket of jewels, he was ordered to answer in equity, and the injured party's oath was allowed as evidence in odium spoiliatoris. Anonymous, cited in East India Co. v. Evans, 1 Vern. 308." 1 Greenl. Ev. § 348. Mr. Greenleaf then adds, that the rule is the same at law, and he cites Herman v. Drinkwater, uh. sup., and refers to Sneider v. Geiss, 1 Yeates, 34. ' Clark V. Spence, 10 Watts, 335; Bingham v. Rogers, 6 Watts & S. 495; McGill V. Rowand, 3 Barr, 342, 451 ; and 1 Greenl. Ev. §§ 348, 349. ' Pudor V. Boston R., 26 Me. 458. (o) See also Garvey v. Camden R., 1 Hilton, 280. CHAP. X.] ACTIONS AGAINST. — EVIDENCE. 401 in the box, and the value of the articles ; but as the declaration alleged that the boz contained medical books, medicines, surgical instruments, and chemical apparatus, it was held that the party's oath was inadmissible ; and judgment was rendered for him only for the value of the box. § 478 a. In the case of Clark v. Spence, in Pennsylvania, it was agreed that the party may by his own oath prove the clothes, and even 'the personal ornaments contained in the trunk containing the clothing of a passenger.^ But where these clothes are set at a very high value, or the ornaments are very numerous and esti- mated at high prices, it may be necessary to require some proof that the party alleging the loss actually possessed such articles of such price when at home, and neither sold them nor left them at home, or the place of his or her last residence.^ If the plaintiff must in every other instance prove his case by legal evidence, courts should be careful not to extend the exception beyond its legitimate limits. It is admitted from necessity, and perhaps on a principle of convenience, because every one does not show what he puts in a box ; and it applies with great force to wearing ap- parel, and to every article which is necessary or convenient to the traveller, which in most cases are packed by the party himself, or his wife, and which, therefore, would admit of no other proof. A lady's jewelry would come within this class, and it is easier to con- ceive than to enumerate other articles which come within the same category. But it must not be understood that such proof can be admitted merely because no other evidence of the, fact can be ob- tained ; for, if a merchant, sending goods to his correspondent, chooses to pack them himself, his omission to furnish himself with the ordinary proof is no reason for dispensing with the rule- of evidence which requires disinterested testimony. Such omission is not of the usual course of business, and there must be something peculiar and extraordinary in the circumstances of the case which wouM justify the court in admitting the oath of the party .^ § 479. The principle of necessity which, in Pennsylvania, ena- bles a party, under particular circumstances, to be a witness to prove the contents of a lost trunk or box, applies with as much if not greater force to the wife as well as to the husband. Either Clark V. Spence, ub. sup. ' Bingham v. Rogers, uh. sup. Clark V. Spence, ub. sup. 26 402 LAW OF CAEEIEES. [CHAP. X. may be admitted to prove the quantity and value of the wearing apparel belonging to each (including in the catalogue the wife's jewelry, and every other article pertaining to her wardrobe), that may be necessary or convenient to either in travelling. The wife usually packs her husband's trunk,_ and always her own, and therefore to say she cannot in a proper case be a witness, would amount almost to a repeal of the rule, and in most cases to a denial of justice .1 (a) § 480. In actions under the statute of Winton before men- tioned, the loss was by robbery, and the action in the before-men- tioned case of Herman v. Drinkwater, there was a tortious or fraudulent taking away ; but where there is a loss not happening by robbery or fraud, and the case is simply a case of negligence in the carrier, it has been held (contrary to the decisions above referred to in Pennsylvania, by the Supreme Court of Massachu- setts), that such a case is not brought within any exception to the general Common-Law rule of evidence ; and that court have been of opinion that to admit the plaintiff's oath in cases of the last- mentioned nature would lead to much greater mischiefs in the temptation to frauds and perjuries than can arise from excluding it. In an action against a railroad company to recover damages for the loss of a trunk, the court accordingly decided that the plaintiff was not a competent witness to prove the contents of the trunk, althodgh he had no other evidence. In giving the opinion of the court, Hubbard, J. remarked as follows : " If the party about to travel places valuable articles in his trunk, he should put them under the special charge of the carrier, with a statement of what they are, and of their value, or provide other evidence be- forehand of the articles taken by him. If he omits to do this he then takes the chance of loss, as to the value of the articles, and is guilty, in a degree, of negligence, — the very thing with which he attempts to charge the carrier. Occasional evils only have occurred from such losses through failure of proof; the relation ' Per Rogers, J., in delivering the opinion of the court in McGill u. Kowand, 3 Barr, 451. The evidence of the plaintiflF's wife in this case was admitted, as to the list of the articles in her own and her husband's trunk ; and also the evi- dence of the husband as to the list of articles in his own trunk, with the values annexed. In the catalogue testified to and valued by the wife, were a valuable diamond breast-pin, a gold breast-pin, and a miniature set in gold, with chain. (a) Dibble w. Brown, 12 Ga. 217. CHAP. X.] ACTIONS AGAINST. — DAMAGES. 403 of carriers to the party being such that the losses are usually ad- justed by compromise. And there is nothing to lead us to inno- vate on the existing rules of evidence. No new case is presented ; no facts which have not repeatedly occurred ; no new combina- tion of circumstances."^ (a) § 481. The difHculty in respect to restricting the quantity or value of the articles that may be deemed proper or useful, as a traveller's baggage, for his or her ordinary purposes, is admitted in Pennsylvania. The subject, it is there considered, is suscepti- ble of no precise or definite rule ; but it is held that when there is an attempt to abuse the privilege in question, it is to be left to the intelligence and integrity of the jur^ to apply the proper cor- rective.^ The naked question in David v. Moore,^ was whether the plaintiff was a competent witness to prove that he had money (the sum of f 75) in his trunk, which was cut from the stage- coach of the defendants, in which the plaintiff was a passenger ; and it was held that he was not.* 11 . Damages. § 482. The amount of damages to be recovered where goods are intrusted to a carrier, and they are not delivered according to his undertaking, depends upon his liability being established, either to answer for the whole value, or only to the extent to which he has succeeded in limiting his responsibility by notice. The gen- eral rule in the former case is, that the value of the goods is the ' Snow V. Eastern R., 12 Met. 44. The trunk in question contained wearing apparel, books, and twenty-five dollars in money. ' McGill !). Kowand, 3 Barr, 451. ' ' David V. Moore, 2 Watts & S. 230. * Seean/e, §§ 115, 116. ifl) See also Dill v. South Carolina E., 7 Rich. 158 ; Doyle v. Kiser, 6 Ind. 242. Such evidence is now allowed by statute in Massachusetts, and it has been held to apply to the case of the loss of a trunk left by the passenger with the bag- gage-master of a railroad corporation, after arriving at his .place of destination. Harlow v. Fitchburg E., 8 Gray, 237. In Wright v. Caldwell, 3 Mich. 51, it is held that the owner of a trunk, in an action for the breach of a contract of af- freightment, cannot testiify to the contents of the trunk. In Illinois, evidence of the owner is admissible if there is no other person who can prove the contents. Parmelee v. McNulty, 19 111. 556. See Davis v. Michigan E., 22 111. 278. The passenger may prove the loss of the trunk and what the contents were, but not the value of them. Illinois Central K. v. Copeland. 24 111. 332. 404 LAW OF CARRIERS. [CHAP. X measure of damages.^ (a) But, as Mr. Sedgwick says, the ques- tion at once arises, whether that value is to be computed at the place where delivered to the carrier, or at the place of destination. It seems, says that author, to be well settled that the measure of damages is the value of the goods at the latter place ; and that this sometimes involves an inquiry into foreign markets, and will generally include the profits of the adventure ; and that it has been rightly held that nothing less will satisfy the contract.^ (p) The principle, as to the obligation of the carrier to respond con- formably to the measure of damages thus stated, is happily illus- trated by C. J. Tilghman, in giving the opinion of the court in Gillingham v. Dempsey l^ " If we consider it," says he, " upon principle, the damage to the plaintiff is the loss he has suffered by the non-delivery of his goods at the place of destination, and that loss is the net price which the goods would have brought at that place. In insurance, the law is so well known that the mer- (■t ' Sedgwick on Meas. of Dam. 370 ; Ludwig v. Meyre, 6 Watts & S. 435 ; Hand V. Baynes, 4 Whart. 204. " Sedgwick, ub. sup. ' Gillingham v. Dempsey, 12 S. & E. 188. . (o) There can be no abandonment of the goods for a partial loss. Shaw i;. South Carolina K., 5 Eich. 462; Michigan E. v. Bivens, 13 Ind. 263; Henderson V. Ship Maid of Orleans, 12 La. Ann. 352. (6) The measure of damages is the value of the goods at the place of delivery at the time they should have been delivered. Spring v. Haskell, 4 Allen, 112; Bailey v. Shaw, 4 Foster, 297 ; Einggold v. Haven, 1 Calif. 108; Hart ». Spald- ing, lb. 213 ; Hackett v. Boston E., 35 N. H. 390.; Galena E. v. Eae, 18 111. 488 ; Dean v. Vaccaro, 2 Head, 488 ; Eice v. Baxendale, 7 H. & N. 96 ; Great West- ern E. u. Eedmayne, Law Eep. 1 C. P. 329. In Ingledew v. Northern R, 7 Gray, 86, ink was frozen after delivery by the defendant to another carrier to be forwarded to the plaintiff. It was claimed that there was delay in the carriage, and that if the ink had arrived sooner it would not have been injured. Held, that the rule was the diminution in value of the ink at the time of its arrival, as compared with what it would have been worth if it had come without delay ; that if it could have been sold for its fair value at the place where the liability of the defendants ceased, the injury sustained by the plaintiff would be slight; that if there was no market for it there, and the best thing that could be done, under all the facts of the case, was to forward it, the question would be, how miich less ■was it worth for that purpose than it would have been had it arrived in due sea- son at the place of delivery ? It was also held, that the consignee could not recover of the carrier for his loss of time in waiting for the goods which the car- rier had unreasonably delayed to deliver. See CoUard v. South Eastern K., 7 H. & N. 79 ; Simmons v. Southeastern E., 7 H. & N. (Am. edit.) 1002. CHAP. X.] ACTIONS AGAINST. — DAMAGES. 405 chant who wishes to cover himself to tlie amotint of his goods at the port of destination may do so by valuing them in the policy accordingly, or by a special insurance on profits. But this is never done in contracts for carriage, — ^an argument of some weight, that it has been supposed the plaintiff may recover ac- cording to the value at the port of destination. Tlien, if we con- sider the policy which should regulate these contracts, it is best to remove from the carrier all teinptation to fraud, which will be best done by making himself answerable for the value at the port of delivery. If the goods should be of increased value at the ■place of delivery, as they generally are, and the liability extends no further than the value at the place of s/iipment, there is very great temptation to fraud ; and it will be extremely difficult for the plaintiff to prove whether the loss happened by fraud, negli- gence, or unavoidable accident." The learned judge said, in ad- dition : " It would require very strong authority to satisfy me that where the carrier fraudulently disposed of the goods at the place of delivery, and made great profit thereby, he, or his princi- pal, should be responsible for no more than the value at the place where he received them. It may be said that in such case the ■carrier himself, if the fraud could be proved, would be liable in an action of trover, for damages, to the full amount of what he made by his fraud. But that involves the plaintiff in the diffi- culty of proving the fraud, and besides, the carrier himself is often worth nothing, and his principal, the only person looked to, would not be answerable in trover." Such seems clearly to be the doctrine in England.^ ■; § 482 a. The rule laid down by Bairon Alderson, as the proper rule, is, that where two parties have made a contract which one of -them has broken, the damages which the other party ought to re- ceive in respect of such breach of contract should be such as may fairly and reasonably be considered, either arising naturally, i. e. ■' In an action of assumpsit against the defendants as owners of The Helena, for not deKvering a cargo of wheat shipped to the plaintiffs, the cargo reached the port of discharge, but was not delivered, and the price of the cargo at the time it reached the port of destination was held to be the rule of damages. Brandt v. Bowlby, 2 B. & Ad. 932. On a contract to deliver hogs at a particular place, Within a certain time, in case of failure to perform, the measure of damages is the difference in their value at such place, at the time of actual delivery, and their market value at the time of delivery fixed by the contract. Sangamon B,. o. Henry, 14 111. 156. 406 LAW OF CAREIEES. [CHAP. X. according to the usual course of things, from such breach of con- tract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.^ (a) § 483. The above case of Gillingham v. Dempsey was an ac- tion on a bill of lading against T. D., by which he' engaged to carry certain crates of earthen-ware belonging to the plaintiff from the port of Liverpool to the port of Philadelphia, and it appeared that, in consequence of not stowing them properly, some of the crates were crushed by the weight of those above. The jury found a verdict for the plaintiff, subject to the opinion of the court, on a point reserved, namely, whether the loss of the plain- tiff was to be estimated at the first cost of the article at the port of embarkation, or at the market-price at the time of delivery at the port of destination. It was held (C. J. Tilghman delivering the opinion of the court), that the measure of damages was the net value of the goods at the port of destination.^ In a more re- cent case in Pennsylvania, it was held that the measure of dama- ges is the value of the article lost, at the place to which it is con- signed.^ In O'Connor v. Forster, io the same State,* in an action for a breach of contract to carry wheat from Pittsburg to Phila- delphia, the difference between the value of the wheat at Pitts- burg, with the freight added, and the market-price at Philadel- phia, at the time it would have arrived there, if carried according to contract, was held to be the measure of damages. There was no reason, the court asserted, why carriers who engage with mer- chants to transport merchandise, should not be held to a* strict performance of their engagements, and that this is to be done by obliging them to indemnify the shippers fully. (&) § 484. In New York, where a suit was brought on an agree- ment to carry a quantity of salt from Oswego to Queenstown, the ' riadley v. Baxendale, 9 Exch. 841. ' Gillingham v. Dempsey, «6. sup. ' Warden v. Greer, 6 Watts, 424. * O'Connor .!). Forster, 10 Watts, 418. (a) See Smeed v. Foord, 1 Ellis & E. 602 ; Collard v. South Eastern E., 7 H. & N. 79 ; Wilson v. Newport Dock Co., Law Eep. 1 Ex. 177; Great Western B. V. Eedmayne, Law Eep. 1 C. P. 329 ; Woodger v. Great Western E., Law Bep. 2 C. P. 318. (6) If the carrier is held liable for the value of the goods at the port of destina- tion, freight is allowed him. Atkisson v. Steamboat Castle Garden, 28 Misso. 124. CHAP. X.] ACTIONS AGAINST. — DAMAGES. 407 difference in value of the articles at Oswego and at Queenstown at the time, was held the true rule of damages.^ The same rule was laid down in New York, in an action against the master of a vessel where the goods had been embezzled on the voyage,. with- out fraud on the part of the defendant; and, in this case, the court held the following language in respect to interest: "The question of interest depends on circumstances. The jury may give interest by way of damages in cases in which the conduct of the master was improper. But here no bad conduct is to be im- puted to him ; and interest is not, in every case, and of course, recoverable, because the amount of the loss is unliquidated and sound in damages to be assessed by the jury."^ (o) § 485. Where the defendant contracted to carry fifty tons of tlie plaintiff's hay to a distant port for sale, the hay to be delivered at the ship's side, and after receiving twenty-four tons on board declined taking any more, because the ship was full, it was held that it was not necessary for the plaintiff, after this refusal, to tender the residue of the hay at the ship's side, in order to entitle himself to damages ; and that the rule of damages was the differ- ence between what the plaintiff in fact received, or with due dili- gence and prudence might have obtained for the hay left in his hands, and the price at the port of destination, deducting freight and expenses.^ § 485 a. In an action against a railroad company for negligence in not conveying a quantity of butter to market within a reasona- able time, the plaintiff cannot recover, as damages, the difference between the price of butter at the time it should have been deliv- ered, and its price at the time when the butter in question was in fact delivered. The case disclosed nothing by which it could be said whether the price of the butter would or would not decline, ' Bracket v. MoNair, 14 Johns. 1 70. ' Watkinson v. Laughton, 8 Johns. 213. The same rule, with the same modifica- tion in respect to interest, was laid down in Amory v. McGregor, 15 Johns. 24. The' defendant, a common carrier, had undertaken to carry by water certain merchandise from Cincinnati to Tiptonsport, on the Wabash River ; the measure of damages was held to be the wholesale value of the merchandise at the place to which they were to be carried, deducting • the price of freight. Wallace v. Vigus, 4 Blackf 260. The rule was held to -be the same in Ohio, in McGregor v. Kilgore, 6 Oliio, 143. ' Noiirse V. Snow, 6 Greenl. 208. (a) Lakeman v. GrinneU, 5 Bosw. 625. Interest was allowed in Spring v. Has- kell, 4 Allen, 112. 408 LAW 0^ CARRIERS. [CHAP. X. or whether the parties contemplated either event. The market was fluctuating, and either event was entirely uncertain and con- tingent.-' § 486. Where a libel in the Admiralty was filed against a ves- sel for the non-delivery by the master of a cargo at Velascoj it , appeared that the vessel arrived out, and that the consignee refus- ing to receive it, the master, contrary to his duty, carried it on to New Orleans. It was held, that the libellants were entitled to recover the actual value at Velasco, at the time when the cargo should have been landed there, deducting all duties and charges, and the freight for the voyage, as if the cargo had been duly land- ed. Mr. J. Story, in this case said, that the rule adopted in prize cases, of an addition of ten per cent to the price cost of the cargo, did not apply to cases like this ; that rule ordinarily supposing that the vessel has been captured before she arrived at the port of destination, and the court making the presumption of the addi- tional value often per cent in odium spoliatoris? § 487. The case of Bridge v. Austin, in Massachusetts, was decided upon its own peculiar circumstances. It was an action against the defendant for receiving the plaintiff's goods as his bailiff, arid taking on himself to carry them safely from Boston to Charleston, in South Carolina. The defendant engaged to dispose of them at Charleston on account of the plaintiff, and pay him the proceeds, and expressly took upon him all risks, except those of the sea, and was to have a commission otjive per cent. It was also an important circumstance, that the goods (a box of linens) , were declared in the defendant's written receipt and engagement to amount to the sterling- cost of eighty-four pounds, six shillings, and one farthing. The linens arrived safe, and were delivered by the captain to the defendant at Charleston, where they were stolen, without his fault, before he had an opportunity of selling them. He was held to be liable according to their value at Boston, de- ducting Jive per cent commission. In this case the defendant was supercargo, and his engagement seems to have been in the nature of an insurance in a valued policy.^ (a) ' Wibert v. New York K., 19 Barb. 36. ' Arthur u. Schooner Cassius, 2 Story, 81. ' Bridge v. Austin, 4 Mass. 114, and comment on the decision by C. J. Tilgh- man, in Gillingham v. Dempsey, 12 S. & R. 187. (a) In Lakeman v. Grinnell, 5 Bosw. 625, goods purchased in Connecticut were put on board a vessel in New York to be carried to Liverpool. Before the vessel CHAP. X] ACTIONS AGAINST. — DAMAGES. 409 § 488. As it respects- the mojde in which the value of the article is to be arrived at, the fair test of its value, and consequently of its loss to the owner (assuming that there is no defect in the qual- ity), is its price at the time in the market. Thiis, in an action against a common carrier for negligently transporting mulberry- trees of the Alpine species, the market value of the trees at the ( time, however fictitious, was held the standard of damages ; and that the range of prices in the entire market, and tlie average thiis found, was the test, and not any sudden inflation.^ § 489. Where a box of gold sovereigns was shipped to be carried for hire from New York to Mobile, and the vessel was wrecked on the " Hoiidu Reefs," and the box was lost, in a libel in the Admi- ralty to recover its value against the captain and owners, the libel- lants asked to have the value of the sovereigns allowed them as if the coin had arrived at Mobile. But it was held, that, as the sovereigns were not carried to Mobile, and might never have ar- rived there, the true test was their value at Key West, with inter- est upon the value from the time when proceedings for salvage were instituted at Key West. That date was adopted as allow- ing the captain full time to have ascertained all the facts which were within the reach of an interested and vigilant master and owner.^ ' \ 490. In case of the acceptance of the goods short of the place of destination, that is no bar to an action for damages which before arose from the carrier's negligence ; but the acceptance may be . given in evidence in mitigation of damages, so as to limit the re- covery to the actual loss sustained by the owner.^ (a) § 490 a. For a non-delivery of goods within a reasonable time, the carrier of them is only responsible for reasonable consequen- ces of his breach of contract. (6) Thus, where the plaintiff sent , ' Smith K. Griffith, 3 Hill, 333. ' King V. Shepherd, 3 Story, 349. ' Bowman v. Teall, 23 Wend. 306 ; and see ante, § 333. sailed she was destroyed, together with the goods, by an accidental fire. Held, that the value of the goods in NeW York was the measure of damages. (a) Atkisson v. Steamboat Castle Garden, 28 Misso. 124 ; Cox v. Peterson, 30 Ala. 608 ; Lowe v. -Moss, 12 111. 477. (6) Where goods are not delivered in a reasoliable time, the measure of dam- ages is any reasonable loss and expenses occasioned by the delay, together with the value of the goods at; the time and place they should have been delivered, less their value at the time and place of actual delivery or tender. Nettles v. S. 410 LAW OF CAEEIEES. [CHAP. X certain "goods by the defendants, who were carriers, to be deliver- ered at a particular place on a particular day, so as to be ready for market on another particular day, but did not give notice they were sent for that purpose ; and on that day the plaintiff's clerk went there, and, owing to the non-delivery of the goods in season, he removed them to another place for sale ; it was held, in an action for the non- delivery of the goods in a reasonable time, that the expenses so incurred might be given by the jury in damages. Whether the expenses, in such case, are reasonable or not, is entirely a question for the jury.^ («) If goods are injured in their transit from A to B, or if, after their arrival at the latter place, and before storage ; the measure of damages, of course, is the difference between the value of the goods when delivered to the carrier, and the value of them in their damaged condition when received by the consignee at B.^ (6) 12. The Pwrties to sue. § 491. The general rule of law in respect to all actions is, that ' Black V. Baxendale, 1 Exch. 401. ' McHenry v. Railroad Co., 4 Harring. Del. 448. Car. K., 7 Eich. 190. See Hackett v. Boston R., 35 N. H. 390 ; Galena K. ». Eae, 18 HI. 488. Where by a conteact with a third party the shipper was to re- , ceive a certain sum for the goods, interest on this amount was allowed for the time of the delay, but a claim for money paid for insurance was rejected, as the vessel being unseaworthy the carrier was liable as an insurer. Murrell v. Dixey 14 La. Ann. 298. If a carrier wrongfully refuses to carry goods, the measure of damages is the diflFerence in value at the place of delivery, when, if carried, they should have reached there, and the value at the place whence they should have been carried, including the necessary expense of storsige and deterioration, and deducting the reasonable expense of transportation. Galena R. v. Rae, 18 IIL 488. For the rule of damages where a passenger is detained on his journey, see Pearson v. Duane, 4 Wall. 605 ; Yonge v.' Pacific Mail S. Co., 1 Calif. 353 ; Williams v. Vanderbilt, 28 N. Y. 217; Benson v. New Jersey R., 9 Bosw. 412. (a) Expenses are not now allowed. Woodger v. Great Western R, Law Kep. 2 C. P. 318. (6) If a carrier agrees to deliver perishable goods within a specified time, he is liable, in case of breach of contract, for the amount of profits which the goods might be expected to have realized if they had arrived in proper time. Wilson V. York R., at N. P. before Jervis, C. J., 18 Eng. L. & Eq. 557. If damaged goods are sold at auction by oneparty, it is not necessary to give notice of the sale to the other party, if the amount of the damage is clearly established. Green- . wood V. Cooper, 10 La. Ann. 796. See Henderson v. Ship Maid of Orleans, 12 La. Ann. 352 ; Elkin ». New York Steamship Co., 14 La. Ann. 647. CHAP. X.] ACTIONS AGAINST. — PARTIES TO SUE. 411 the action should be brought in the name of the person 'whose legal right has been affected ; a rule necessary to be observed, in order tliat the party suing shall not be compelled to abandon his suit after having incurred great expense.^ This general rule renders it important, before commencing aji action against a car- rier for his negligence or default in the conveyance of goods, to be particular in ascertaining in whom the property in the goods is vested ; for, by assumption of law, he is the person who sustains the loss, and therefore, unless such inference of law is contradict- ed by the particular facts of the case, he is the party to demand compensation from him by whom he has been injured. There may be a special property in a third person, or a special contract between the consignor of goods and the carrier, which will rebut the presumption referred to ; ^ (a) but otherwise the action must be brought in the name of the owner of the property. (6) Thus, if a father send a present to his child by a carrier, and it is lost, the father cannot 'maintain an action as owRer ; but the action must be brought in the name of the child.^ ' Seel Chit. PI. I, et seq. ^ Freeman v. Birch, 2 Nev. & Man. 426 ; and see opinion of Gibson, J., in Griffith V. Ingledew, 6 S. & E. 429 ; and the point stated will- be more fuUy ex- plained, post. , » 2 Steph. N. P. 990. In Hunter v. Westbroofc, 2 Car. & P. 578, a father gave his son a watch, and several articles of wearing apparel. It was held, that though the son was under age, viz. about sixteen years old, the father could not maintain trover against a person who detained the property, because the right of posses- sion was not in him, but in his son ; and Abbott, C. J., observed : " I believe it has been held, that things stolen from a child may be laid to be the property of the parent ; but I think that has been the case in very young children." So also in Smith v. Birch, 7 Ibid. 401, it was held, that if a father make to a son under age an absolute gift of an article of dress or ornament, e. g. a watch, he cannot afterwards, without that son's consent, reclaim the gift ; Mr. J. Vaughn observ- ing : " If the father had made an absolute, solemn, and irrevocable gift of the watch to his son, the plaintiff, and the plaintiff had accepted it, the law would not allow the father, without the consent of the son, afterwards to reclaim the gift." (a) Mayall v. Boston R., 19 N. H. 122. A bailee of goods upon wjaich labor IS to be performed for compensation, the goods not being converted into something essentially different in their character, has only a special property in them, and this ceases on delivery of the goods to a caij'ier for the general owner. The bailee cannot therefore sue the carrier. Morse v. Androscoggin K., 39 Me. 285. Q>) In Blanchard v. Page, 8 Gray, 281, the question whether the shipper named in a bill of lading, who had no property general or special in the goods, could sue for an injury to them, was much considered ; and after deciding in the negative, the court on a re-argument held that such an action would lie. 412 LAW OF CARRIERS. [CHAP. X. § 492. In general a mere serva&t or agent with whom a con- tract is made on behalf of another, and who has no direct benefi- cial interest in the transaction, cannot support an action thereon; hut if he has a beneficial interest in the performance of the con- tract, or a special property or interest in the subject-matte^; of the agreement, he may support an action in his own name upon the contract, as in the case of a factor, or broker, or a warehouseman,' or carrier,^ or captain of a ship for freight.^ An agent in England shipping goods to the foreign principal, and paying the freight, can maintain an action on the bill of lading, if it express that the goods were shipped by the agent, and that the freight was paid in England ; because a privity of contract is established between the parties by means of the bill of lading.* In case of a bailment, it is clear that the, bailee has such a continuing interest in the goods until their arrival a't the place of destination as to entitle him to sue the carrier, in case they are lost or damaged on their passage. Thus, in. Freeman^. Birch ^ (which was an 'action on the case against a carrier for negligence), at the trial before Paterson, J., it appeared that the plaintiff, a laundress at Hammersmith, was in the habit of sending linen to and from London by the defend- ant's cart, which travelled from Chiswick to London ; on one oc- casion a basket of linen belonging to one S. was sent by the de- fendant's cart, and on its way to London parts of the contents were either lost or stolen. S. did not pay the carriage of the linen ; and it was objected on the part of the defendant, that the present action was misconceived, and that the action should have been brought by the owner of the linen. The learned judge over- ruled the objection, and a verdict was found for the plaintiff. Subsequently, a motion was made for a new trial, on the ground of misdirection, which the Court of Queen's Bench, however, re- fused, on the ground that, under the circumstances, the bailee must be taken to rietain a special property in the goods sufficient to support the action, (a) 1 1 Chit. PI. 7. ' Ante, § 348. ' Shields V. Davis, 6 Taunt. 65; Brown v. Hodgson, 4 lb. 189. * Joseph V. Knox, 3 Camp. 320. ' Freeman v. Birch, 1 Nev. & M. 420. (a) See White v. Basoom, 28 Vt. 268. Where three persons were travelling together, and a valise was lost which belonged to one of them and which con- tained articles belonging to all, it was held, that the owner of the valise, having CHAP. X.] ACTIONS AGAINST. — .PARTIES TO SUE. 413 § 493. Upon the decision in the case last cited of Freeman v. Birch, it has been remarked : "Though it clearly establishes the right of the bailee to sue, yet this must not be understood neces- sarily to exclude the bailor from the exercise of a similar right ; supposing, that is to. say, he chooses to step in and anticipate the bailee in bringing an action ; a conclusion which seems to be de- ducible from the general state and condition of property under bailment, which is, as it were, in dubio between the parties, and vested for some purposes in the bailee, and for some in the bailor. The right of property being thus floating and undetermined, it seems to follow that the right of action which arises from it must partake of the same properties, and must so continue until it is finally fixed and determined by one or the other party appropri- ating it to himself." ^ (a) It cannot indeed be denied, that the right of an agent or a bailee, having a special property in the goods which are the subject-matter of the transaction, to sue for any de- fault of the carrier in respect to them while in the course of trans- portation, is subservient to the right of the principal to interfere and bring the action in exclusion of the agent's or bailee's right.^ The rule in such cases is stated by Parke, B. to be, that either the bailor or the bailee in such cases may sue ; and whichever first obtains damages, if is a full 'satisfaction.^ (6) § 493 a. Where an action is rightly brought by the owners of goods against a carrier for negligence, the judgment in that ac- tion is a bar to a suit subsequently brought against the same car- rier by a person having a special property in the goods.* \ 494. It is also an important doctrine, that, if it is not ex- pressed that an agent contracts in behalf of another, and the ' 1 Waif, on Part, to Act. 35. ^ 1 Chitt. PI. 8. " Nicolls V. Bastard, 2 Cromp., M. & fi. 660. ' Green w. Clark, 13 Barb. 57, Pratt, J. dissenting, (c) the key of it and control over it, could sue for all the articles in the valise. Mo- ran V. Portland S. P. Co., 35 Maine, 55. Where a box which contained goods, some of which belonged to A and some to B, was delivered on their behalf by a third person to a carrier addressed to A, and was carried and dehvered to A, who paid for the carriage, it was held, that there was evidence of a joint bailment by A and B, and that both might sue the carrier for any loss sustained by them. Metcalfe v. London E., 4 C. B. n. s. 307. (a) Elkins v. Boston R,, 19 N. H. 337. (6) Steamboat Farmer v. McCraw, 26 Ala. 189. (c) This case was affirmed in 2 Kern. 343. 414 LAW OF CAERIEES. [CHAP. X. name of the principal is not disclosed by him, a suit may be main- tained in the name of the principal. This doctrine has been ac- knowledged and applied in a number of instances ; ^ and was ap- plied in the case of a common carrier in Sanderson v. Lamberton, in PennsylvEMiia.^ It was also very recently applied by the Su- preme Court of the United States in an important case on appeal in the Admiralty, in which the respondents were common carriers by sea. The case referred to originated in the loss of the steam- boat " Lexington," with the cargo on board, by fire, in Long Is- land Sound, in the month of January, 1840 ; but the decision was not made until the December term of that court, 1847. The property in question (a large amount of specie') was delivered to one H., an " express" forwarder, for transportation, and by him delivered for that purpose to the New Jersey Steam Navigation Company, .who, with otlier steamboats, ran the Lexington to and from New York and Stonington. It was held, that notwithstand- ing the contract of affreightment was made by H. with the com- pany personally, and without disclosing the name of the libellants who were the owners of the specie lost, the suit by them against the company should be sustained.^ § 495. The question in respect to consignors and consignees of goods forwarded from one to the other, and as to which of the two parties is the proper party to bring the action for a loss or non- delivery of the goods while in the course of transportation, is sometimes one of much nicety, and has therefore occasionally pro- voked critical dscussion. Tire carrier must be liable to one party or the other, and if the wrong party were to recover against him he would be liable to be harassed again.* It is important to look, in endeavoring to decide which is the proper party, to the state and condition of the property, and the relation in wliich the con- signor and consignee stand to it ; ^ for neither the consignor nor consignee, as such, is the proper party to bring the action.^ The relations in which they stand to each other may be reduced to three general heads. 1st. Where the entire property in the goods ' Among others, in Sims «. Bond, 5 B. & Ad. 393 ; Hi^ins v. Senior, 8 M. & W. 834 ; Taintor v. Prendergast, 3 Hill, 72 ; Lapham v. Greene, 9 Vt. 407. ' Sanderson v. Lamberton, 6 Binn. 129, and ante, § 466. ' New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, and ante, § 466. * Per Williams, J., in Coats v. Chaplain, 3 Q. B. 489. ' 1 Waif, on Part, to Act. 31, e< seq. • See opinion of Bronson, J., in Everett v. Saltus, 15 Wend. 474 ; Law ». Hatcher, 4 Blackf. 364. CHAP. X.] ACTIONS AGAINST. — PARTIES TO SUE. 415 remains vested in the consignor ; 2d. Where it is in the con- signee; 3d. Where, as in the cases which have already been cited, both are interested, the one as general and the other as special owner. In the first case, the law presume.s the consignor to be the party who contracts with the carrier, and therefore vests in him all rights of action arising out of such contract.^ (qi) If goods are in the course of transmission from a principal to an agent, for any loss or damage occurring to such goods in the course of their passage, the principal would seem to be the proper party, to sue.^ Where goods are sent by a party merely to be ap- proved, the property not passing to the consignee until he receives and adopts the goods, the consignor is entitled to bring the ac- tion against the carrier for any breach of his implied undertaking to deliver the goods.* Thus, a coat ordered by a customer, resi- dent abroad, without instruction as to the mode of conveyance, and which was sent through by the' tailor, who paid the freight, and the coat being lost in the transit, it was held that the vendor was the proper party to sue the carrier.* § 496. Again, if from fraud, or non-compliance with the requi- sites of the statute of frauds, no actual sale has taken place so as to transfer the right of property and the risk of loss from the consignor to the consignee, the consignor is, of course, the proper party to maintain the action. Thus, where the consignor had de- livered goods to a carrier in obedience to a fictitious order, which professed to come from a well-known tradesman of respectability, but had in reality been sent by a swindler, it was held that as no bond fide sale had taken place, the consignor had not been di- ' 1 Waif, on Part, to Act. 33. See D'Wolf v. New York Ins. Co., 2 Johns. 214 ; Bank of Rochester v. Jones, 4 Comst. 407 ; and see ante, § 397. ' Wright V. Snell, 5 B. & Aid. 350 ; Sargent v. Morris, 3 lb. 277 ; and see opinion of Gibson, J., in Griffith v. Ingledew, 6 S. & R. 429. _ ' Swain v. Shepherd, 1 Moody & R. 224. * Goodwyn v. Douglas, i Cheves, 174. (o) W. k A. Railroad v. Kelly, 1 Head, 158. In Coombs v. Bristol R., 3 H. & N. 1, the declaration alleged a contract by the defendants with the plaintiff to carry goods ; that the goods were the plaiiftiff's and that they were lost. The defendants pleaded that the goods were delivered to them by A, to be delivered to plaintiff; that the goods had been lost ; that A as consignor had claimed com- pensation ; and that the defendants had paid him the full value. On demurrer, the plea was held bad. It will be noticed that the plea did not deny that the contract was made with the plaintiff. 416 LAW OF CARRIERS. [CHAP. X. vested of his property in the goods, and that he was, therefore, the proper party to sue the carrier for a neglect of duty in deliy- ering to the swindler, who applied for them at the carrier's ofifice, instead of delivering them at the residence of the tradesman to whom they were directed.^ So, if a tradesman sends goods of the value of £10 and upwards, pursuant to an oral order, or an oral contract of sale, to a person who has not given " earnest," or made a part payment, or accepted any part of the goods, and the contract is void by reason &f non-compliance with the statute of frauds, then, as there has been no actual sale, so as to transfer the right of property and the risk of loss to the consignee, the consignor is the party to sue the carrier.^ § 497. But. by the delivery of the goods to a carrier on behalf of the consignee, and if they have been placed at his absolute dis- posal, and no other fact appears, the legal presumption is, that he is the true owner, and the property in the goods then becomes im- mediately vested in him ; and, therefore, in the event of a loss, he, and not the consignor, must bring the action, for the consignor has his remedy against the purchaser.^ (a) " Generally speak- ing," says Smith,* " when goods are forwarded in pursuance of an order which binds the person giving it to receive the goods, as the property in them passes to that person, by the delivery to the car- rier, he is the proper plaintiff, if they should be lost." ^ Lord Al- vanley is reported to have said, that it appeared to him a proposi- tion as well settled as any in the law, " that if a tradesman order goods to be sent by a carrier, though he does not name any par- ticular one, the moment the goods are delivered to the carrier, it operates as a delivery to the purchaser ; the whole property im- mediately vest^ in him ; he alone can bring an action for any in- ' Duff V. Budd, 6 Moore, 469 ; and see also Stephenson v. Hart, 4 Bing. 476. = Coats V. Chaplain, 3 Q. B. 489 ; Stockdale v. Dunlop, 6 M. & W. 224. « Vale V. Dale, 1 Cowp. 294 ; Dawes . Kiel, 1 lb. 540 ; Skinner V. London R., 5 Exch. 787, 2 Eng. L. & Eq. 360. * Aston V. Heaven, 2 Esp. 533. And see also McKinney v. Niel, 1 McLean, C. C. 450 ; Cotterill v. Starkey, 8 Car. & P. 691. » Dudley v. Smith, 1 Camp. 167. (a) TuUer v. Talbot, 23 111. 357. (6) Frink v. Coe, 4 Greene, Iowa, 555. CHAP. XI.] PASSENGEE CAKEIEES. — THEIE SEEVANTS. 463 the proprietor is responsible for the mischief which ensues.^ When no obstruction exists, tlie driver is not justified in deviating from the accustomed road. Thus, where a coach was upset in conse- quence of such deviation, and an action was brought for a conse- quent injury, the judge told the jury, that, as there was no obstruc- tion in the road, the driver ought to have been kept within the limits of it ; and the accident having been occasioned by his de- viation, the plaintiff was entitled to a verdict ; and a verdict hav- ing been returned accordingly, the court granted a new trial on the ground that the jury should have been directed to consider whether or not the deviation was the effect of negligence.^ On the same principle, if the driver of a railroad engine, by negli- gence or unskilfulness causes the train to be thrown off the rails, the railroad company is responsible for all damages and injuries that may be sustained by the passengers in consequence.^ Mis- conduct on the part of the driver of a stage-coach may consist in overlading the coach with baggage, and in not taking care to ad- just the weight of it, so that the coach is not made top-heavy, and so not liable to overset.* § 542. In an action on the case for negligence and misconduct on the part of the driver, the declaration stated, that the plaintiff "had agreed to become a passenger " by the defendant's omnibus, and that the defendant " received the plaintiff as such passenger." Plea, that the plaintiff did not become a passenger, and that the defendant did not receive him as such. It appeared that the plain- tiff held up his finger to the driver of the omnibus, who stopped to take him up, and just as the plaintiff was putting his foot on the step of the omnibus the driver, drove on, and the plaintiff fell on his face on the ground. It was held, that this was evidence to go to the jury in support of the declaration ; as the stopping of the omnibus implied a consent on the part of the driver to take the plaintiff as a passenger.^ ' Jackson v. Tollett, 2 Stark. 37; Mahew v. Boyce, 1 lb. 423. ' Crofls V. Waterhouse, 3 Bing. 319. If the driver leaves the common track and takes one not used, which increases the risk, it is evidence of negligence. MeKinney v. Niel, 1 McLean, C. C. 540. ' Carpue v. London E., 5 Q. B. 747 ; Beers v. Housatonic K., 1.9 Conn. 566 ; Famell v. Boston R., 4 Met. 49. * Long V. Home, 1 Car. & P. 612; Israel v. Clark, 4 Esp. 259 ; Aston v. Heaven, 2 lb. 533 ; Heard v. Mountain, K. B., 1826, citedi n 5 Petersdorf, Abr. 54. ' Brien v. Bennett, 8 Car. & P. 724. 464 LAW OF CARRIERS. [CHAP. XI. § 543. [(6.) Their Duties in the Progress of the Journey, in respect to Rate of Speed.'] The duties of the driver of a stage- coacli in driving on the road are very important, and, if any injury occurs to a passenger in consequence of fui-ious driving, the pro- prietor will bo responsible.^ If one of the linchpins come out, and the wheel by which it was secured comes off, and the jury are of opinion that the accident proceeded from such rate of driv- ing, the proprietor is responsible for all injury thereby done to the passengers.^ § 544. There has been a case in this country which authorized very exemplary damages by the jury to a stage-coach passenger, for injuries which he received in consequence of the rash and fu- rious driving of the coachman. In McKinney v. Niel,^ it appeared that the defendant was an extensive stage proprietor, and ran the lines of stages from Columbus to Zanesville, in Ohio ; and that the plaintiff, being in Columbus, took a seat for the next morn- ing's stage to Zanesville. It was observed on the route, by the passengers, that the driver drove very fast; and it appeared that after a short deltiy at Jack-Town, the driver continued on his route at the same rapid rate. The driver passed on the right-hand side of a two-horse wagon of a Mr. H., a witness, who was driving in the same direction as the stage ; and who, hearing the stage, turned his horses to the left, which gave to the stage more than half the road. The stage passed without coming in contact with the wagon, and the witness observed that all the horses except one, which was a very fast trotter, were in full gallop. The stage had a patent lock or rubber, but the driver, instead of using the lock to retard the progress of the stage, in descending a hill, applied the whip twice within the observation of the witness ; and the bill was between a quarter and a half a mile long. After passing the wagon, the horses ran to the verge of the right-hand side of the road, and then inclined to the left. The plaintiff and another passenger on the outside remonstrated with the driver more than once, and requested him to use the lock ; but he refused to do so, saying to them there was no danger. The horses continued their direction to the left until the near wheels of the stage ran off the paved road a foot or two, and continued so to run some two or ' Stokes V. Saltonstall, 13 Pet. 181 ; Gought?. Bryan, 5 Dowl. P. C. 765. ^ Mayor u. Humphries, 1 Car. & P. 251. ' McKinney v. Niel, 1 McLean, C. C. 540. CHAP. XI.] PASSEKGER CARRIERS. — RATE OF SPEED. 465 three rods, when the horses turned to the right, and the stage upset with great violence. The ground where this occurred was nearly level. The off-wheels ran on the paved road, but the de- scent was small from the paved to the unpaved part of the road ; and, with ordinary good driving the coach could have been in no danger of upsetting. It, however, did upset, and at the time of the accident the speed of the horses was about as great as it had been. The consequence was, that the plaintiff was picked up shockingly and dangerously mangled ; and so serious were the injuries he received, that there was little chance that he would ever entirely recover from them. The court, in their charge to the jury, told them that " the driver must not only be skilful, but he is bound to exercise the utmost degree of care ; and if they should think, from the evidence, that, in commencing the descent of the hill and driving down it, in the manner proved, he acted imprudently or rashly, the defendant was liable ; although they should find that the immediate cause of the \ipset was the break- ing of the lines. The least degree," said the court, " of impru- dence or want of care in the driver fixed the liability of his em- ployers ; and if, in the present case, in descending the hill, such an impetus was given to the coach as to render it difficult and hazardous for the driver to check and control his team, the defend- ant was liable." The jury returned a verdict of five thousand and three hundred and twenty-five dollars in damages. § 546. A fortiori the proprietors of a stage-coach will be responsible for the consequences to a passenger of an accident Sccasioned by the racing of his driver against other coaches ; and it is the duty of a driver not to drive unbroken and vicious horses, and not to excite such horses as are broke and not naturally vicious, to such a rate of speed, tliat they cannot be stopped, or properly directed.^ In all cases of collision in a public road, if the jury believe that a driver of a vehicle was engaged at the time in a trial of speed, the jury may give very exemplary damages.^ In the Circuit Court of the United States, ' Per Best, C. J., in liis charge to tlie Wilts grand jury, cited in note to 8 Car. &P. 694. See also Monroe v. Leach, 7 Metv 274; Churchill v. Eosebeck, 15 Conn. 359. Though fi party should lose all control of his horse, in driving, in a public roSd, and an injury ensues in consequence, yet if the loss of control was the result of the defendant's prior faults, the plaintiff may recover. Kennedy v. Way. "*• sup.; Claflin v. Wilcox, 18 Vt. 605. "■ Kennedy v. Way, Brightly, N. P. 186. 30 LAW OF CAERIEKS. [CHAP. XI. for the Seventh Circuit, in the year 1840, an action was brought for an injury done to the plaintiff's wife, by the overturning of the stage tlirough the carelessness of the driver, the defendant being the proprietor. It appeared that there were two stage lines on the route between Marietta and Zanesville, Ohio, and that one carried the mail. Niel's line was run in opposition to the mail line, and Peck and his wife took the former at Zanesville for Marietta. The stages left Zanesville at about the same hour. The accommodation sometimes passed the mail stage whilst detained at a post-office. The horses in both lines were driven rapidly, often at their full speed, against the remon- strance of the passengers in Neil's accommodation line. When within about six miles of Marietta, the mail stage overtook the other about a quarter of a mile before they reached a hill ; the driver of the mail coach requesting the other driver to give half the road and he would pass him. The driver answered, that he was not so anxious for a race as that. The mail driver then turned his horses to the right, whipped them and hallooed, and thus started the* horses in the other stage, which had been moving rather slowly. The horses in the accommodation stage did not go fast, but jumped ; the driver struck the off-wheel horse, in order, as he alleged, to bring him nearer the tongue, and give half the road to the other stage. The driver pressed the lever, and Donaldson, who sat with him, raised the reins, and, with the driver, pulled them. The other coach inclined to the left, until the wheel of the mail coach locked in the fore-wheel of the other coach, broke its double-tree, and threw the stage and horses over a precipice, whereby the plaintiff's wife, Mrs. Peck, was severely injured. Several physicians stated, that her health by this injury had been permanently impaired, her arm disabled, and it was the opinion of some that the injury she received would probably ' shorten her life. There was evidence conducing to show a con- certed arrangement between the two drivers in regard to racing, and it was fully proved, that the horses in both stages were driven over a greater part of the route in a most rapid and reckless manner, against the remonstrance of the plaintiff Peck. On the evidence, the court charged the jury, .that, to exonerate the defendant fi-om liability, he must show that every precaution was used by his agent to prevent the injury which occurred ; that every omission of duty by the driver, which in any degree CHAP. XI. J PASSENGER CAERIEES. — RATE OF SPEED. 467 increased the risk of the passengers, subjected the defendant to damages for au injury done them ; that although the upsetting of tlie coach may have been caused immediately by the driver of the mail coach, for which he and his employers were liable to damages, still if Niel's driver, under the circumstances, did not use all the means which a skilful and prudent driver could and would have used to prevent the injury done, the defendant was liable. The jury retuned a verdict for the plaintiff, and assessed the damages at five thousand dollars.^ § 646. It of course follows, that driving so rapidly over a railroad by the servants of the company as to amount to rash- ness is eqiially inexcusable ; and the fact of rashness will depend much upon the condition of the road. What would not be an improper rate of speed over one portion of the rails might be in another, as for instance, where the rails are sprung, the sleepers broken, or the bridges not road-worthy. Evidence may unques- tionably be given, that an injury was received by a passenger in consequence of the improper speod with which cars on a railroad were drawn over a spot which presents the obstructions and defects like these just mentioned.^ (a) In short, when the car- riage is by railroad, the railroad company impliedly warrants the road to be in good travelling order and fit for use. Then again, supposing the condition of the road itself to be ever so good, the conductor of the train is guilty of misconduct, by endeavoring to drive his train to a certain station before it is reached by a counter train ; for if the conductors of both trains are governed by the same idea, the passengers are exposed to the dangers of a collision. § 547. The liability of the passenger carrier, for a neglect of duty in respect to rapid and furious driving, will be the same, almough the injury re^sulting to the passenger therefrom is occasioned by his own act, as by leaping from the vehicle, when the state of peril will justify it. Such an act the law deems a natural and prudent precaution to extricate a person from peril, for which the proprietor of the line would have been liable. V ' Peck V. Niel, 3 McLean, C. C. 22. ' , ' Carpuei). Brighton K., 5 Q. B. 747. And see Farwell v. Boston R., 4 Met. 49. (a). See Wilds o. Hudson River R., 29 N. Y. 315 ; Brown v. New York R., 31 N. Y. 404 I Telfer v. Northern R., 1 Vroom, 188. 468 LAW OF CAEEIEES. [CHAP. XI. The case of Jones v. Boyce,^ (a) was an instance of this sort, although the coach in which the plaintiff was a passenger was not actually overturned. In the before-mentioned case of Mc- Kinney v. Niel,^ in which it appeared that the plaintiff recovered heavy damages, where the coach, on the roof of which he was travelling, was upset by the recklpssness of the driver in fast driving ; it was evident, from the manner .of the injury, that the plaintiff attempted to jump from the coach, and that the top of it must have fallen upon him. lu Stokes v. Saltonstall, in the Supreme Court- of the United States,^ which was an action for damages against the owners of a line of stage-coaches from Bal- timore to Wheeling, it appeared that the defendant in error, with his wife, had been passengers in one of the coaches which was upset, by reason of which the wife had several bones in her body broken, and was otherwise greatly injured. It was proved, that, at the last change of horses before the accident, the passengers generally remarked that the driver seemed to have drank too much to go on. When the coach arrived at a certain part of the route, the passengers felt the' coach strike against a mound or ridge on the right side of the road. The husband, on perceiving this, immediately jumped out, as was believed with the intention of stopping the horses ; his wife attempted to follow, but fell to the ground at the instant the coach upset, and it fell directly on her ; and this was in the afternoon in broad daylight ; and she was thereby injured in the manner above mentioned. The injury was occasioned by the falling of the coach on her body. The road was not considered dangerous or difficult. The driver was believed to be intoxicated, and his intoxication believed to be increased by his drinking with a man on the seat alongside of him ; which belief was produced by a recklessness and irreg- ularity in driving, which called for repeated remonstrances fi'bm the passengers. He appeared unfit for anything, would answer no question, nor afford the least assistance. The husband, it was held, was entitled to recover, and he and his wife, it was also held, had reasonable ground for supposing that the coach would upset ; although the jury might believe, from the position in > Jones V. Boyce, 1 Stark. 493. ' MtiKinney v. Niel, 1 McLean, C. C. 540 ; and ante, § 544. ' Stokes V. Saltonstall, 13 Pet. 181. (a) See Wilson v. Newport Dock Co., Law Rep. 1 Ex. 187. CHAP. XI.] PASSENGER CAEEIEES. — RATE OF SPEED. 469 which the coach was placed by the negligence of the driver, the attempt of the husband and his wife to escape may have in- creased the peril, or even caused the coach to upset, (a) The same doctrine applies equally to railroad carriages as to stage- coaches.^ (6) § 548. But, undoubtedly, where the injury arises to a pas- senger from a rash and undue apprehension of danger on his part, as when a passenger, thinking himself in peril, leaps from a stage-coach to save himself, when in reality he is in no peril, the coach proprietor will not be liable. It is, however, a delicate point, and one which must be left for a jury on the evidence to determine.^ In Massachusetts,^ at the trial in the Court of Com- mon Pleas, before Williams, C. J., the plaintiff introduced evi- dence tending to prove, that, on the 23d of September, 1841, he and several other persons took outside seats, as passengers, on the top of the defendants' coach, to be conveyed from Boston to .Cambridge ; that on the way, in Court Street, in Boston, wliile proceeding at a moderate rate, and without coming in contact with anything, the hind axletree of the coach broke, one of the hind wheels came off, and the coach settled down on one side, without being overset ; that the plaintiff and some other outside |assengers jumped from the top of the coach upon the pavement; and that the plaintiff's left arm was thereby badly injured. The defendants insisted, that if the plaintiff jumped from the coach without necessity, and that necessity brought upon him by them, they were not liable ; and that, although a passenger might have jumped off without imprudence, his jumping off was to be con- sidered as his own act, and was done at his own peril. Upon this point the learned judge directed the jury to inquire whether the plaintiff's jumping off was, tinder the existing circumstances, an act of reasonable precaution ; and instructed them, that if the plaintiff was placed in such a perilous situation, in conse- quence of the defendants' failure to fulfil their obligations, that; as a prudent precaution, for the purpose of self-preservation, he ' Eldridge v. Long Island R., 1 Sandf. 89. ' 1 Bell, Com. 372. ' Ingalls V. Bills, 9 Met. 1. (a) Frink v. Potter, 17 111. 406. (6) Galena K. v. Yarwood, 15 111. 468 ; South Western R. v. Paulk, 24 Ga. 356 ; Bnel v. New York K., 31 N. Y. 314. 470 LAW OF CAKRIEES. [CHAP. XI. was induced to leap'fi'om the coach, the owners were answer- able for any injury he might have sustained thereby; although it might now appear that he might, without injury, have retained his seat. The jury, under this direction, returned a verdict for the plaintiff. § 549. [(7.) Tlieir Duty as to an Observance of the ■proper Side of the Road, and as to avoiding' Collision.] In regard to persons meeting on horseback, there is no established rule requiring per- sons so meeting a horse or vehicle to turn to the right or to the left. The rules and directions for the mode of driving, in order to avoid collision, upon the public roads and highways of Eng- land, have become established by custom. The first of them is, that in meeting, each party shall bear or keep to the left ; which is the reverse of the rule in this country ; that is to say, in this country each party shall bear or keep to the right.^ Secondly, ' By the Rev. Stat, of Massachusetts, c. 51, travellers in carriages, who meet on a road, .are required, under a penalty, seasonably to drive their carriages to the right of the middle of the travelled part of the road ; and they cannot avoid the penalty by seasonably turning to the right of the wrought part of the road, though they leave sufficient room for the travellers whom they meet to pass with convenience and safety, in the use of ordinary care and skill. With regard to the neglect of this duty, as a public offence, it can make no difference whether suffi- cient room is left for the other party to pass, if he had not also been guilty of neg- ligence in not using ordinary care. It is the negligence or wrongful act of the defendant that constitutes the public offence, irrespective of the want of ordinary care of the other party. Such would be the rule as to an indictment against an individual for a nuisance on .the highway ; thoughin a civil action for damages by a party travelling on such road, a very different rule might.be applicable. Com- monwealth V. Allen, 11 Met. 403. In a complaint, under the statute above referred to, against a traveller for not driving his carriage to the right of the middle of the travelled part of the road, it is not necessary to set forth a particu- lar description of the road. Ibid. See joosi, §§ 556-563. (a) That the rule, in this country, is to take the right side of the road, Wilson v. Kockland Man. Co., 2 Harrlng. 481 ; Brooks v. Hart, 14 N. H. 307. In Kentucky it is provided, under a penalty, by the statute of 1843, that all vehicles of every kind, meeting, shall give to each other one half of the Macadamized part of the road, each passing to the right. If any one be guilty of a violation of the requirements of (a) Under this statute a master is not liable for damages sustained by a third person, in consequence of the omission of the servant seasonably to drive his mjister's vehicle to the right of the middle of the travelled part of a road. Good- hue V. Dix, 2 Gray, 181. The provisions of this statute, requiring travellers meeting each other " seasonably to drive to the right," do not apply when one vehicle is passing along one street and another is turning into said street from a cross-street. Lovejoy v. Dolan, 10 Gush. 495. CHAP. XI.] PASSENGER CAEEIEES. — PROPER SIDE OF THE ROAD. 471 « that in passing, the foremost person bearing to the left, the other shall pass on the off-side. Thirdly, that yi crossing, the driver shall bear to the left hand, and pass behind the other carriage.^ But the rule is not inflexible, in England, that a driver is bound to keep on the regular side of the road ; although, if he does not keep on the regular side, he is bound to use more care and cau- tion, and keep a better lookout to avoid collision, than would be necessary if he were on the regular or proper side.^ But that the law or usage of the road is not the criterion of negligence was expressly held in Wayde v. Carr.^ In this case, the defendant's carriage was on the wrong side of the road, and, in attempting to pass on the near inside of the off-side, the plaintiff sustained dam- age ; and it was held, that it was for the jury to decide the ques- tion of negligence, without regard to the law and usage of the road. Whatever, said the court, might be the law of the road, it. was not to be considered as inflexible and imperatively governing a case of this description. " In the crowded streets of a metropolis, where this accident happened, situations and circumstances might frequently arise where a deviation from what is called ' the law of the road ' would not only be justifiable but absolutely neces- sary. Of this the jury were the best judges, and, independently of the law of the road, it was their province to determine whether the accident arose from the negligence of the defendant's ser- vant. They had acquitted him of negligence ; and having all the this statute, he is not only liable to the penalty, bijt if his disregard of its provis- ions cause a conflict and injury, he should not only bear the loss, but may be ren- dered liable for any injury which is sustained in consequence of his illegal act. Johnson v. Small. 5 B. Mon. 25. By the true construction of the Rev. Stat, of Mtoachusetts, when a part of a road, which is wrought for travelling, is hidden by snow, and a path is beaten and travelled on the side of the wrought part, per- sons meeting on such beaten and travelled path are required to drive their ve- hicles to the right of the middle of such path. Jaquith v. Richardson, 8 Met^ 213. The law of the road by the same Stat, extends to all places appropriated to the 'purpose of passing with carriages, whether so appropriated by public author- ity, or by the general license of the owners thereof; arid such owners themselves, while using their land as a road, must conform to the law. Commonwealth v. Gammens, 23 Pick. 201. • ' 2 Steph. N. P. 984 ; 5 Petersdorf, Abr. 55 ; Story on Bailm. § 599 ; Wayde v- Carr, 2 Dow. & R. 25. ' Pluckwell V. Wilson, 5 Car. & P. 375. ' Wayde v. Carr, 2 Dow. & E. 255. A person on the regular side of the road may be guilty of negligence. M'Lane v. Sharpe, 2 Harring. Del. 472 LAW OF CAKEIEES. [CHAP. XI. t circumstances of the case before them, had found their verdict for the defendant." , § 550. Tiiere may be occasions upon which it becomes the duty of the driver to deviate, to a reasonable extent, from the proper side of the road.i Thus, if a coachman is on the proper side, and sees a horse coming furiously along on the wrong side, it is the duty of the coachman to give way and avoid an accident; although, in so doing, he goes a little on what would otherwise be his wrong side of the road.^ § 551. If a coachman deviates even from the limits of the road, and thereby the coach is upset, the proprietors of tlie coach will not be liable for any damage thereby occasioned, if it appears that such deviation from his duty to keep the road was not owing to any want of that skill and diligence which the law requires in him, but is altogether imputable to an unavoidable mistake, or sudden alteration of the guiding objects on the road.^ § 552. If the street or road is very broad, the driver is not bound to observe the proper side of the road. In Wordsworth v. Willan,* which was an action on the case against the defendants, proprietors of a stage-coach, for the negligence of their servant in driving so near the path on the wrong side of the road that the plaintiff's horse, becoming frightened, and plunging, came in' contact with the coach and broke his leg ; it was said by Rook, J., that it could not be laid down as a certain rule, nor did pubhc convenience require, that the driver is, under all circumstances, bound to keep on what is considered the proper side of the road ; and that if there was no interruption of any other carriage, or the road was better, public convenience did not require that the driver should adhere to that law of the road. He took the rule to be, that if a carriage coming in any direction left sufficient room for any other carriage, horse, or passenger, on its proper side of the way, it was sufficient ; but that it was evidence for the jury if the accident arose from want of that sufficient room ; the driver was not to make experiments. ' Wayde v. Carr, 2 Dow. & E. 255. ^ Turley v. Thomas, 8 Car. & P. 103. The rules of the road, in England, are equally applicable to cases of persons on horseback, as well as to persons driving carriages. Ibid. " Story on Bailm. § 599; Crofts u. AVaterhouse, 3 Bing. 321; Erie City v. Schwingle, 22 Penn. State, 384. ' Wordsworth v. Willan, 4 Esp. 278. CHAP. XI.] PASSENGER CAEEIEES. — PROPER SIDE OF THE EOAD. 473 § 553. If there is no other carriage to intercept the driver, he may pass on wliat part of the road he may thinic most convenient. It appeared in evidence, in Aston v. Heaven,^ that the accident for which the action was brought arose from the horses having taken fright, and that no fault was imputable to the driver. It was held, that the owners were not liable in damages to the plain- tiff, although it was proved that the carriage was driving in the middle of the' road ; whereas, had he been driving on the proper side, the accident might not have happened, on account of the great distance from that side where the bank was which occasioned the accident ; Byre, C. J. observing, that when there is no other carriage to intercept the driver, he may go on what part of the road he thinks fit. § 554. In Mahew v. Boyce,^ the plaintiff was a passenger by a coach which was overturned in consequence of its coming in con- tact with the vehicle of the defendant, under the following circum- stances : The coaches were both directed to the same place. The driver of the latter, during the night, attempted to pass the other coach at the top of a hill, and just as it was about to turn an angle in the road to the left. It was, however, contended, on the part of the defendant, that at that period his coach had sufficient room left to pass that on which the plaintiff was travelling, there being a space of seventeen feet wide to the right of the latter ; and that the accident would not have occurred had it not been for tlie fact that the leading horses attached to the latter were driven in an oblique direction from the left to the right side of the road. But it appearing that the situation of the coach, by which the plaintiff was a passenger, had been seen some time before the defendant's coach came up, and that the driver of the latter might, by having driven nearer to the right side than he did, have effectually guarded against the mischief. Lord Ellen- borough said : " This is decisive of the case ; if it be practicable to pursue a course which is safe, and you follow so closely upon the track of another that mischief may ensue, you are bound to adopt the safe course. The coach on which the plaintiff was seated had at the time the whole free range of the road, and the driver had a right to occupy any part of it, unless he was aware of the prox- imity of the defendant's coach. This accident occurred in the night-time. Risk might consequently have been doubly appre- ' Aston V. Heaven, 2 Esp. 533. " Mahew v. Boyce, 1, Stark. 423. 474 LAW OF CABEIEBS. [CHAP. XI. hended. The driver of the coach belonging to the defendant ought therefore to have calculated upon the exercise of the other's right to traverse the whole space of the road, and have kept nearer the right side than he did, by which means this suit might never have been instituted." The verdict was for the plaintiff. § 555. In cases where parties meet on the sudden, and an in- jury results, the party on the wrong side of the road sliould be held answerable, unless it clearly appears that the party on the proper side had ample means and opportunities to prevent it. A man, says Chief Justice Best, " may not on a suddea be suffi- ciently self-possessed to know in what way to decide ; and in such case the wrong-doer is the party who is to be answerable for the mischief; though it might have been prevented by the other party's acting differently." ^ § 555 a. Although a pedestrian or a person on horseback has a right of way, as well as the driver of a carriage or lumber wagon, yet the enjoyment of the right is regulated by reason. They cannot, for instance, compel a teamster, who has a heavy freight, to leave the smooth, beaten Iract of the road, if there is sufficient room to pass on either side. So where a road is narrow, and it is impracticable for a teamster to give a part of the way, and a horse- man can pass by turning out of the road, it is his duty to do so.^ § 656. Whenever a collision of two carriages occurs, the driver, by whose negligence or misconduct it occurred, must of course be responsible for the consequences. But the rule in all cases where an action is brought for damage so occasioned is, that, if it appear that the damage was occasioned partly by the negli- gence of the plaintiff and partly by that of the defendant, the action cannot be maintained ; and if the plaintiff's negligence in any way concurred in causing the damage, he is not entitled to recover.^ As was said by Lord EUenborough, " a party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use com- ' Chaplin v. Hawes, 3 Car. & P. 554. " Beach v. Parmenter,' 23 Penn. State, 19G. » Pluclcwell V. Wilson, 5 Car. & P. 375 ; "Williams v. Holland, 6 lb. 23; Mon- roe V. Leach, 7 Met. 274 ; Churchill v. Eosebeck, 15 Conn. 359 ; Simpson v. Hand, 6 Whart. 311 ; Rathbun v. Payne, 19 Wend. 399 ; Barnes v. Cole, 21 lb. 188; Hartfield u. Rover, lb. 615 ; Brownell v. Flaggler, 5 Hill, 282. The rule is the same In respect to carriers by water. Vandeplank v. Miller, 1 Moody & M. 169^ Luxford V. Large, 5 Car. & P. 421 ; Sills «. Brown, 9 lb. 601 ; and see ante, § 167, note 2 ; and post, Chap. XH. § 634, et seq. CHAP. XI.] TASSENGEB CARRIERS. — COLLISION. 475 moil and ordinary caution to be in the right. In cases," the learned judge continued to say, " of persons riding upon what is cousidered the wrong side of* the road, that would not authorize another purposely to ride up against them ; for one person being in default will not dispense with another's using ordinary care for ■ himself." ^ Tlie rule of the law thus laid down was declared by Parke, B., in the case of the Grand Junction Railway Company, to be " perfectly correct." This case was an action for the negli- gent management of a train of railroad cars, whereby it ran against another train in one of which the plaintiff was riding, and whereby he was injured. It was pleaded, that the parties having the management of the train in which the defendant was, managed it so negligently and improperly, that, in part by their negligence, the defendant's train ran against the other, and caused the in- juries which the plaintiff received. It was held, that the plea was bad in form, as amounting to " not guilty " ; and also bad in sub- stance, for not showing, not only that the parties under whose management the plaintiff was were guilty of negligence, but also, that by ordinary care they could have avoided the consequences of the defendant's negligence.^ ' Butterfield v. Forrester, H J)ast, 60. In this case it was held, that one who is injured by an obstruction in a highway against which he fell, cannot maintain an action, if it appear that he was riding with great violence and want of ordi- nary care, without which he might have seen and avoided the obstruction. ^ Bridge v. Grand Junction R., 3 M. & W. 244. In case, for driving a coach of the defendant against the plaintiff's carriage, in which were two of his sons, and injured it and them, it was pleaded that the plaintiff's carriage was under the guidance and direction of one of his sons, who was driving it, and that the de- fendant, by his servant, was carefully and properly driving his coach ; that if the plaintiff's son had driven his carriage carefully and properly, no collision would have takeffplace, nor any injury have been occasioned to the plaintiff's carriage or to his sons ; but that the plaintiff's son drove the carriage so negligently and improperly, that it rah and struck against the defendant's coach, and by means thereof, and without any carelessness or improper conduct of the defendant by his servant, the defendant's coach ran and struck against the plaintiff's carriage, whereby the supposed damages in the declaration mentioned were occasioned ; so that, if any damage was occasioned to the plaintiff's carriage, or to his sons, it was occasioned by the carelessness and negligence of the plaintiff 's son so driving his carriage ; without this, that the defendant, by his servant, so carelessly and improperly drove his coach, that by and through his carelessness and improper conduct in that behalf the defendant's coach struck against the plaintiff's car- nage, in manner and form, &c. ; concluding to the country. The plea was held bad on special demurrer. Lord Abinger, C. B. said: "I am of opinion that this 476 LAW OF CAEEIEES. [CHAP. XI. § 557. The important doctrine laid down in the preceding sec- tion has been repeatedly recognized and applied in this coun- try.i (a) In Massachusetts^ the action was an action on the case plea is bad. The principal ground on which a special plea amounting to the general issue has been held bad on special demurrer is, that it contains superflu- ous and unnecessary matter. As this plea concludes to the country, this forms the only objection to it; if it had concluded with a verification, it would have been more vicious, because it would drive the plaintiff, in his replication, to select some particular fact to take issue upon." Gough v. Bryan, 2 M. & W. 770. ' See ante, n. 1 to preceding section ; Brownell v. Flaggler, 5 Hill, 282, and the cases there cited ; Harlow v. Humiston, 6 Cow. 191 ; Noyes v. Morris, 1 Vt. 353 ; Burckle v. New York Dry Dock Co., 2 Hall, 151 ; Lane k. Crombie, 12 Pick. 176; Monroe v. Leack, 7 Met. 274; Parker v. Adams, 12 Met. 415; Beers v. Housatonic R., 19 Conn. 566 ; Brooks v. Hart, 14 N. H. 307; Haring v. New York E., 13 Barb. 9 ; Carroll v. New York K., 1 Duer, 571 ; Center v. Finney, 17 Barb. 94 ; Mungern. Tonawanda R., 4 Comst. 349 ; Halderman v. Beckwith, 4 McLefn, C. C. 286 ; Spencer v. Utica E., 5 Barb. 337 ; Hudson v. Roberts, 6 Exch. 697, 5 Eng. L. & Eq. 514 ; Martin v. Great Northern R., 16 C. B. 179, 30 Eng. L. & Eq. 473; Aurora Branch R. v. Grimes, 13 111. 585; Brand v. Sche- nectady R., 8 Barb. 368 ; Quimby v. Vermont R., 22 Vt. 393 ; Trow v. Vermont R., 24 lb. 487 ; Kerwhacker v. Cleveland, 3 Ohio State, 1 72 ; Washburn v. Tracy, 2 D. Chip. 136 ; Railroad Co. v. Aspell, 23 Penn. State, 147. The case of But- terfield v. Forrester (ante, § 556) was cited and relied on by the Court of Ap- peals of South Carolina, in a case in which the judgment of the court was, that where a slave of the plaintiff, endowed with ordinary intelligence, and acquainted with the nature and manner of using a railroad, voluntarily laid himself down on the road and went to sleep, amidst grass so high as to obstruct the view at some distance, and in this situation, without any fault of the engineer, the engine going at its ordinary speed, passed over the body and killed the slave, the plaintiff could not recover against the company for the value of the slave killed. Folder v. Cincinnati R, 2 M'MuU. 404. Buckle v. Dry Dock Co., 2 Hall, 151, decides that no man can lay the foftudation of an action against his own wrong, or by the breach of any duty on his part. ' Smith V. Smith, 2 Pick. 621. (a) Chfcago R. v. Fay, 16 111. 558 ; Button v. Hudson River R., 18 N. Y. 248 ; Owen V. Hudson River E., 2 Bosw. 374. In Steves v. Oswego R., 18 N. Y. 422, this rule was applied, although the defendant neglected to ring its bell as required by statute. See also Butterfield v. Western R., 10 Allen, 532 ; Mackey v. New York R., 27 Barb. 528 ; Dascomb v. Buffejo E., 27 Barb. 221 ; Augusta E. v. McElmurry, 24 Ga. 75; Willis v. Long Island E.,32 Barb. 398 ; Clark d. Eighth Av. R., 32 Barb. 657. But see, as to the care required of a traveller when the railroad company neglects to ring the bell, Ernst v. Hudson River R., 35 N. Y. 38 ; Beisiegel v. New York R., 34 N. Y. 622. In Ashmore v. Pennsylvania Steam Towing Co., 4 Dutch. 180, in a contract of towage, the master of the boat towed agreed to keep a competent man at the helm while the tow was in motion. The tower ran on a known sand-bank and the boat towed was lost. Held, that the CHAP. Xr.] PASSENGER CARRIERS. — COLLISION. , 477 for an injury done to the plaintiff's horse by a wood-pile, which the defendant had placed in the highway ; and it was held that as the plaintiff did not use ordinary care, by which the obstruction might have been avoided, he could not maintain the action. Tlie defendant contended that the plaintiff did not use ordinary care, that the wagon in whicli he was driving, in descending the hill on which the accident happened, was overloaded ; that he did not drive skilfully, and that he did not put a shaft-girth on. Parker, C. J., in giving the opinion of the court, said : " It would seem, at first, that he who does an unlawful act, such as encumbering the highway, should be answerable for any direct damages which happen to any one who is injured, whether the party suffering was careful or not in his manner of driving or in guiding liis vehicle, for it could not be rendered certain, whether, if tlie road were left free and unencumbered, even a careless traveller or a team-driver would meet with any injury. But on deliberation we have come to the conclusion that this action cannot be maintained unless the plaintiff can show that he used ordinary care ; for without tha.t, it is by no means certain that he himself was not the cause of his own injury. The party who obstructs a highway is amenable to tlie public in indictment, whether any person be injured or not, tut not to an individual, unless it be shown that he suffered in his person or f)roperty by means of the obstruction ; and where he has been careless it cannot be known whether the injury is wholly imputable to the obstruction, or the negligence of the-party com- plaining. And considering the indulgence shown by the public to the citizens, in many places, to occupy a part of tlie highwjiy for temporary purposes, leaving ample room for travellers, with ordinary care, to pass uninjured, the principle which requires that degree of care in order to entitle a party to damages, may be deemed salutary and useful. That such is the law, we are fully satisfied from an examination of the authorities cited." ^ (a) ' The learned judge laid much stress upon the decision in Butterfield v. !For- rester, 11 East, 60, and cited in the preceding section. ■ K ; 7" plaintifif could recover, although there was no man at the helm of his boat at the time, the jury having found that his negligence did not contribute to the accident, (a) Lucas n. New Bedford K., 6 Gray, Si. In this case it was held that a per- son who enters the cars of a railroad corporation, not as a passenger, but to assist aa infirm relative to a. seat, must, in order to maintain an action against the corporation for an injury sustained while leaving the ears, show that he exercised due care, that the corporation was wanting in ordinary care, and that such 478 , LAW OF CARRIERS. [CHAP. XI. § 658. Where a person, travelling ■with a horse and wagon, might, from an eminence in the road, have seen that a causeway at a considerable dis'tance, which he intended to pass over, was covered with water, but when he descended the hill the causeway was out of sight, until he had proceeded too far either to turn back or to go on with safety, it was held that hitherto he was not guilty of negligence; and, as he then used ordinary care in en- deavoring to extricate his horse from the danger, but without suc- cess, he was held entitled to recover for the loss of the horse, which was drowned. The jury, in this case, were satisfied from the evidence that the loss of the horse was owing to the defect in the causeway, and that no mismanagement or negligence on the part of the plaintiff concurred in the loss.^ § 559. It is obvious that cases of alleged mutual neglect, like those above mentioned, must be determined by the jury, (as) In ' Thompson v. Brldgewater, 7 Pick. 188. And see Sheffield v. Rochester K., 21 Barb. 339. negligence was the cause of the injury; and if he attempts to leave the cars after they have started, or, finding them in motion as he is going out, attempts to get off, he cannot maintain such an action, if his attempt causes or contributes to the injury ; even if the corporation give him no special notice of the time of the departure of the cars, and are guilty of negligence in the manner of starting, which contributes to the accident. ' ^ (a) If the evidence for the plaintiff does not make out a legal cause of action, there is no doubt that it is within the power and that it is the duty of the court to take the cise away from the jury. Denny v. Williams, 5 Allen 1. This prin- ciple has been extended to the case of a suit against a railroad company for dam- afes, and it has been held that if the evidence of the plaintiff shows want of care on his part, or no evidence of negligence on the part of the defendant, the court should take the case away from the jury and decide it as a matter of law. Thus, in Gavett v. Manchester E., 16 Gray, , leaving a railroad car while the train was in motion was held such evidence of negligence as to justify the court in nonsuiting the plaintiff. See also Lucas v. New Bedford K., 6 Gray, 64. So, of attempting to cross over a train of cars between two freight cars shackled together, while the train was in motion. Gahagan v. Boston R., 1 Allen, 187. So, of a passenger putting his elbow out of the window of a railroad car. Todd v. Old Colony R., 3 Allen, 18, 7 lb. 307. So, where a traveller on a highway, approach- ing a railroad crossing, did not look to see whether a train of cars was coming ; and the facts that it was a stormy night, raining, blowing hard, and snowing some ; that the highway was in very bad order ; that neither the bell of the defendant's enn-ine was rung nor the whistle blown, did not take the case out of the rule, and make it a proper one for the consideration of the jury. Butterfield v. Western R., 10 Allen, 532; Stoves v. Oswego R., 18 N. Y. 422; Wilds u. Hudson River R., 24 N. Y. 430. See also Frost v. Grand Trunk R., 10 Allen, 387 ; Haring r.New CHAP. XI.] PASSENGER CARRIERS. — COLLISION. . 479 an action by the owner of a coach and horses against the driver of another coach, for driving the wheels of his coach upon one of York E., 13 Barb. 9 ; Briggs v. Taj^or, 28 Vt. 180 ; Philadelphia E. v. Hummell, /44 Penn. State, 375 ; New York E. v. Skinner, 19 Penn. State, 298 ; Toomey v. London E., 3 C. B. N. s. 146. In Gaha<;an v. Boston E., 1 Allen, 187, 190, it is said that the question of the plaintiff 's negligence is a question of fact for the jury, if there are any facts in dispute, or if there is any evidence upon which it is com- petent' for the jury to find that the plaintiff used reasonable care, but that the burden is on him to show that he used ordinary care, and that if he offers no evidence that he was in the exercise of care, and the whole evidence shows . that he was careless, the case should be taken away from the jury. But as the correctness of this position depends on the pov/er of a judge to determine the question of fact whether certain things are or are not negligence, in a subsequent decision the court justified the right of a judge to determine this fact. In Meesel V. Lynn E., 8 Allen, 234, 236, Chapman, J., speaking of the cases previously decided, said : " It is true that these decisions involve the consideration of facts as to which no evidence was offered. But they were well-known facts in respect to the power, speed, and management of railroad trains. The rule of law on this subject is well stated in 1 Greenl. Ev. § 6, as follows : ' Courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction.' In the cases above cited, it ought to be known by all persons who have anything to do with railroad trains that it is hazardous- and inconsistent with the exercise of ordinary care to leave the seats provided for passengers and stand upon the platform or attempt to leave the train while it is in motion, or to sit with an elbow projecting beyond the external surface of a window, or to cross a mov- ing train by passing between the cars." That courts may judicially take knowl- edge of what is or is not negligence hardly seems to be justified by the things mentioned by Mr. Greenleaf, of which the court may take judicial notice. Neg- ligence being then a question of fact, it naturally follows that courts should take a different view of the same state of facts. Thus while, as we have seen, the Supreme Court of Massachusetts considers putting the elbow out of a win- dow such negligence as to justify the nonsuiting of the plaintiff, in Pennsyl- vania this is not considered such negligence. New Jersey E. v. Kennard, 21 Penn. State, 202. So in regard to leaving a car while in motion. Pennsylvania E. V. Kilgore, 32 Penn. State, 292. Whether a thing is or is not negligence un- der this rule seems to depend then on the general knowledge of the court, and not upon its legal knowledge. In Massachusetts the court has declared its inabil- ity to determine that riding on the outside platform of a horse-railroad car was such negligence that the plaintiff could not recover for an injury sustained through the fault of the carrier. Meesel v. Lynn E., 8 Allen, 234. So, as to parents letting their son, ten years old, be in the street with other boys after dark. Lov- ett V. Salem E., 9 Allen, 557. So, of a servant of a railroad going between cars in motion. to uncouple them. Snow u. Housatonic E., 8 Allen, 441. So, where a person bought a ticket at a railroad station, and, at the request of the station agent, went with him towards the cars, without looking to see whether a train was approaching on a track he had to cross. "Warren v. Fitchburg E., 8 Allen, 227. See also Fox v. Sackett, 10 Allen, 535. In Spofford v. Harlow, 3 Allen, 176, it 480 LAW OF • CARRIERS. . [CHAP. XI. tlie horses attached to the plaintiff's coach, it was contended for the defendant, that, according to the evidence tlie action could not be maintained, as the driver of thc^plaintiff 's coacli was himself in fault, as he and the defendant were mutually running and cut- ting each off to prevent each other going ahead. The court sus- tained this objection, and instrudted the jury, that, as the plain- tiff's driver was in fault in the manner stated by the defendant's counsel, the action could not be sustained, and directed them to give a verdict for the defendant ; which they did. To these in- structions of tl\e court the plaintiff alleged exceptions, and a new. trial was granted, because the direction of the court to the jury assumed a fact as proved which should have been left to them on the evidence. Tlie view of the case taken by Wilde, J., in giving the opinion of the court, was this : " We are of opinion that the fault of the plaintiff's driver was not satisfactorily proved. All that is proved is, that he had been in fault previously to the trans- action complained of. But this was no justification for the de- fendant in the commission of the like fault. And it appears by the evidence reported, that the injury complained of was solely caused by the misconduct of the defendant. He drove the plain- tiff's horses into a snow-drift ; and it was testified by the witness, that Littlefield, the plaintiff's driver, tried to avoid him all he could." 1 This case, therefore, establishes the point, that evidence ' Monroe v. Leach, 7 Met. 274. was lield that the court could not say as a matter of law that riding on the fender or outside platform of an omnibus sleigh in the streets of Boston was such negli- gence as to warrant taking away the case from the jury. In New York, this is judicially considered negligence. Spooner v. Brooklyn City R., 31 Barb. 419, 36 Barb. 217. The duty of the court to submit the question of negligence to the jury, although the judges if they should sit as a jury would find that there was negligence, is shown by the case of Patersoa v. Wallace, 1 Macq. 748, 28 Eng. L. & Eq. 48. See also Coombs v. Purrington, 42 Maine, 332 ; Beers v. Housatonic K., 19 Conn. 566 ; Johnson v. Hudson River B., 20 N. Y. 65 ; Trow v. Vermont R., 24 Vt. 487 ; Bigelow u. Rutland, 4 Cush. 247 ; Ernst v. Hudson River R., 35 N. Y. 38 ; Ireland v. Oswego Plank Road Co., 3 Kern. 533 ; Beisiegel v. New York R., 34 N. Y. 622. The reason suggested in some cases for the propriety of taking away such cases from the jury, because of the sympathy which a jury has in favor of the plaintiff in a suit against a corporation, can hardly be deemed suf- ficientin law. See Toomey v. London R., 3 C. B. n. s. 146 ; Haring i>. New York R., 13 Barb. 9. It is difficult to see, if a court should determine as a matter of law whether riding on the platform of a steam-car is negligence, why it should not also determine as a matter of law whether riding on the platform of a horse-car, or on the fender of a sleigh, is or is not negligence. CHAP. XI.] PASSENGER CARRIEES. — COLLISION. 481 that the drivers of two coaches on the same route mutually attempted several times to intercept each other's progress by " cutting each other off," is not sufficient to prove that in a sub- sequent collision on the same trip, they were both in fault. § 560. Where the plaintiff, in an action of trespass, for driv- ing the carriage of the defendant against the plaintiff's, and over- setting it, thereby wounding the plaintiff, claimed that the injury occurred entirely through the negligence of the defendant, with- out any negligence on the plaintiff's part; and also that if the plaintiff was guilty of negligence, the defendant drove his car- riage against the plaintiff's by design or gross negligence, and thereby caused the injury ; and that in either of these events the plaintiff was entitled to recover ; and the defendant did not claim to justify himself on the ground that the plaintiff was guilty of any negligence at the time when the collision took place, but by a course of misconduct pursued by the plaintiff, on the road, pre- vious to the collision, and at some distance from the place where it happened ; which misconduct of the plaintiff could not possibly concur in directly producing the injury complained of; it was held that the court might properly omit to charge the jury as to the effect of negligence on the part of the plaintiff.^ ^ 561. The general rule of law in respect to negligence is, that altliough there may liave been negligence on the part of the plain- tiff, yet unless he might, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence, he is en- titled to recover. Therefore, where the defendant negligently drove liis horses and wagon against and killed an ass, which had been left in the highway, fettered in the forefeet, and thus unable to get out of tlie way of the defendant's wagon, which was going at an immoderate pace along the road, it was held that the jury were properly directed, that, although it was an illegal act on the part of the plaintiff so to put the animal on the highway, the plaintiff was entitled to recover. For, as the defendant, said Lord Abinger, might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his neg- ligence, though the animal may have been improperly there. Although, said Parke, B., the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief; and were this not so, a ' Churchill v. Roseback, 15 Conn. 359. 31 482 LAW OF CARRIERS. [CHAP. XL man might justify the driving over goods left on a public high- way, or even of a man lying asleep tliere, or the purposely run- ning against a carriage going on the wrong side of the road.^ And- therefore, a passenger in a public conveyance who has been in- jured by the negligent management of another conveyance, can- not maintain an action against the owner of the latter if the dri- ver of the former, by the exercise of proper care and skill, might have avoided the accident which cavised the injury.^ (o) § 562. The doctrine, that a plaintiff who has contributed to an injury occasioned by the negligence of the defendant, cannot re- cover a compensation in damages, does not apply where the plain- tiff is a person incapable of exercising ordinary care and caution. Where, therefore, the defendant's servant left a horse and cart unattended in a public street, and the plaintiff, a child under seven years of age, during the driver's absence, climbed on the wheel, and other children urged forward the horse, whereby the plaintiff was thrown to the ground and the wheel fractured his leg ; it was held, that on these facts the jury were justified in finding a verdict for the plaintiff, if they were of opinion that there was negligence on the part of his servant. And it was also held, that the co-operation of third parties to the injury was not a ground of defence, if the means of injury were negli- ' Davies v. Mann, 10 M. & W. 545. In Brownell v. Flaggler, 5 Hill, 282, it was held, that where there had been mutual neglect, the plaintiff might recover in an action on the case, if the evidence showed intentional wrong on the part of the defendant. The above case of Davies v. j\Iann was cited by Lord Denman, C. J., in a case in which it was held, that if property (as oysters) be placed in the channel of a public navigable river, so as to amount to a public nuisance, a person navigating is not justified in damaging such property by running his ves- sel against it, if he has room to pass without so doing; for an individnsil cannot abate a public nuisance if he is not otherwise injured by it than as one of the public ; and therefore the fact, that such property was a nuisance, is no excuse for running upon it negligently. And the learned judge said, that " as a general rule of law, every one, in the conduct of that which may be harmful to others if misconducted, is bound to the use of due care and skill ; and the wrong-doer is not without the pale of the law for this purpose." Colchester v. Brooke, 7 Q. B. 339. " Thorogood v. Bryan, 8 C. B. 115. (a) See post, § G36. If a person is on the top of a stage-coach with the con- sent of the driver, and there are seats there for passengers, his being there cannot be imputed to him as negligence. Caldwell v. Murphy, 1 Duer, 233. OHAP. XI.J PASSENGER CARRIERS. — COLLISION. 483 gently left where it was extremely probable that they would be set in motion.^ (a) » Lj-ncli V. Nurdin, 4 Per. & D. G72, 1 Q. B. 29. (a) Some doubt was thrown on this case in Lygo v. Newbold, 9 Exch. 302, and Buhsequent cases in England, though they do not directly overrule it, leave it to be inferred that it would not now be followed. Thus in Singleton o. Eastern Counties R., 7 C. B. n. s. 287, a child three years and a hall" old strayed on a railway and had its leg cut off. When the child was seen the whistle was blown, but no attempt was made to stop the engine. The decision is briefly given as follows : " Erie, C. J. : The plaintiff was wrongfully upon the railway ; and without gaying anything to detract from the authority of the cases cited, I must confess I was wholly unable to discover any evidence of negligence on the part of the servants of the company. Williams, J. : I also think there was no neg- ligence made out on the part of the company. There was nothing to show how the children got on to the railway. All was more conjecture and surmise." In Hughes V. Macfie, 2 H. & C. 744, the defendants occupied a warehouse on one side of a street into which their cellar opened. They had taken up the lid of the cellar, and left it nearly upright against their wall. The plaintiff, a child five ■ years old, got on the cross-bars of the lid, jumped from it, and in jumping part of his clothing caught on the lid, and it was pulled over upon him. Pollock, C. B., dehvering the judgment of the court, said : " Had he been an adult, it is clear he could have maintained no action. He would voluntarily have meddled for no lawful purpose with that which, if left alone, would not have hurt him. He would, therefore, at all eyents, have contributed by his own negligence to his damage. We think the fact of the plaintiff being of tender years makes no dif- ference Cases were referred tjj, supposed to be in favor of the plaintiff. We think none are decisive of this case, and no case establishes a principle op- posed to our view, which is, that the nonsuit was right." Another child was also injured when the lid was pulled over, and the court held that he could not recover if he was playing with the child who pulled it over ; otherwise he could, as the accident would then be the result of the joint negligence of the defendants and the child who pulled the lid over. Waite v. North Eastern R., Ellis, B. & E. 719, affirmed in the Exchequer Chamber, Ellis, B. & E. 728, presents the question in a different form. A child five years old was taken to a railway station by its grandmother. She bought a ticket for herself and one for the child. In crossing the track the child was injured by an accident caused by the joint negligence of the railway company and the grandmother. Held, that the child could not re- cover damages. The grandmother was considered as the contracting party and as having charge of the child. In this country the doctrine of Lynch r. Nurdin has been followed in Robinson v. Cone, 22 Vt. 213; Ranch v. Lloyd, 31 Penn. State, 358; Pennsylvania R. v. Kelly, lb. 372; Philadelphia B. v. Spearcn, 47 Penn. State, 300; Smith v. O'Connor, 48 lb. 218; Daley v. Norwich R., 26 Conn. 59 ; East Tenn. R. v. St. John, 5 Sneed, 524. But the law is the other way in New York. Hartfield v. Roper, 21 AVend. G15 ; Lehman v. Cily of Brook- lyn, 29 Barb. 236 ; Mangam v. Brooklyn City R., 36 Barb. 230. So in Massa- chusetts. Wright V. Maiden R., 4 Allen, 283. In Lovett v. Salem R., 9 Allen, 484 LAW OF CAREIEES. [CHAP. XI. § 563. [(8.) Their Duty to avoid Injury to Foot-Passengers.]. All persons have a right to walk in a public highway, if they observe reasonable care to avoid carriages ; (a) and they.are enti- tled to the exercise of reasonable care on the part of persons driv- ing carriages along it. Thus, in an action of trespass for injuring the plaintiff by driving a cart against liim, it appeared that the plaintiff was walking in the carriage-way in the neighborhood of London, about ten o'clock in the evening, when the defendant, who was driving a taxed cart, turned out from behind a post-chaise, and drove against the plaintiff, and knocked him down. It was held, that the plaintiff was entitled to recover. It was, however, proved that the foot-path was in a bad state, and seldom used ; but Denman, C. J. observed : " A man has a right to walk in the road if he pleases. It is a way for foot-passengers as well as carriages. But he had better not, especially at night, when car- riages are passing along." ^ It is quite clear, at all events, that a foot-passenger has a right to cross, and that persons driving car- riages along the road are liable if they do not take care so as to avoid driving against the foot-passenger who is crossing the road.^ ' Boss V. Litton, 5 Car. & P. 407. ' Cotterill v. Starkey, 8 Car. & P. 691 ; and see Wakeman w. Robinson, 1 Bing. 213. In the Superior Court of New York, January 5, 1849, there was an action to recover damages for injuries received by the plaintiff, by one of the defend- ant's stage-coaches. The plaintiff, an aged lady (upwards of seventy), while crossing, one afternoon, the Third Avenue, was run over by one of the before- mentioned coaches, and had her arm broken. The verdict in her favor was for $ 1,500. Reported for the Journal of Commerce of January 6, 1849. 557, it was held that the court could not decide, as matter of law, that permitting a boy of ten years of age to be in the street with other boys after dark was such negligence as to prevent him from recovering damages for a personal injury sus- tained by him from being wrongfully compelled to leave a street railway car while the same was in motion, although he had wrongfully got upon the same. See also Oldfield v. New York R., 3 E. D. Smith, 103 ; Chicago v. Major, 18 HI. 349 ; Galena R. v. Jacobs, 20 111. 478. As to the care required of a deaf person, see Cleveland R. u. Terry, 8 Ohio, State, 570; Illinois R. f. Buckner, 28 III. 299. (a) A railroad is liable for a defect in the public highway caused by its ipis- feasance or non-feasance. Snow v. Housatonic R., 8 Allen, 441 ; Gillett v. Western R., 8 Allen, 560 ; Oakland R. v. Fielding, 48 Penn. State, 320 ; Veazie v. Penob- scot R., 49 Maine, 119. And if a railroad company has made a private crossing over its track at grade, in a city, and allow the public to use it as a highway, and stationed a flagman there to prevent persons from undertaking to cross when there is danger, it may be held liable in damages to one who, uang due care, is CHAP. XI.] INJURY TO FOOT-PASSENGERS. 485 If a driver of a vehicle, therefore, cannot pull up because his reins break, that will be no ground of defence, as he is bound to have proper tackle.^ So when a horse, being frightened, runs away, and damage is done, it is no ground of defence that the chain-stay of the cart to which the horse is attached breaks, and thus fright- ens the horse.^ If a horse and carriage are left standing in a street, and without any person to watch them, the owner is liable for any damage done by them, although it is occasioned by the act of a passer-by, in striking the horse ; for if a man chooses to leave a horse and carriage standing in the street, he must take the risk of any mischief that may be done in consequence.^ In such case (and the horse be unfastened) the owner of the animal is re- sponsible to any person who is injured thereby, even if the habits of the animal are such as to induce the belief of safety in so leav- ing it ; and evidence of reason for such belief, in an action for an injury sustained in consequence of such negligence, if given in the cause, must be disregarded by the jury.* § 564. But, according to the doctrine which has already been laid down, applicable to collision of carriages, &c.,^ whenever an action is brought for an injury to a person in crossing a road or street by driving against him and by knocking him down, the jury must be satisfied that the injury was attributable to the negligence of tlie driver, and to that alone, before they can find a verdict for the plaintiff; and if they think that the injury was occasioned, in any degree, by the improper conduct of the plaintiff in crossing the road in an incautious and imprudent manner, the defendant will be entitled to a verdict.^ Thus, if a person in a public street , ' Cotterill v. Starkey, ub. sup. ' Welsh V. Lawrence, 2 Chitt. 262; and see Smith u. Smith, 2 Pick. 621. ' Illige V. Goodwin, 5 Car. & P. 190. In this case the plaintiff was a china- man in St. Paul's Churchyard, London ; and the cart of the defendant (a scav- enger) backed against the window of the plaintiff's shop, and broke a quantity of china. * Oyerington v. Dunn, 1 Miles, 39. " See ante, § 556, et seq. ' Hawkins v. Cooper, 8 Car. & P. 475 ; Wolf w. Beard, Ibid. 373. induced to undertake to cross by a signal from the flagman that it is safe, and is . injured by a collision which occurs through the flagman's carelessness. Sweeny ». Old Colony R., 10 Allen, 368. ' See as to the duty of a railroad towards a ship- per of freight engaged in lading his goods on the train, Stinson v. New York E., 32 N. Y. 333. 486 LAW OF CAEEIEES. [CHAP. XI. in a city, sees an omnibus coming, however fui-iously, and he will be reckless and headstrong enough to try to cross the street, and is run over, he cannot recover in an action against the proprietors of the omnibus, as no one has a right of action, if he meets with an accident which by ordinary care he might have avoided.! § 565. In Pennsylvania,^ it appeared that the plaintiff was walking in the middle of one of the most frequented streets of the town of Wilkesbarre, in that State, where there were sidewalks for footmen, when the defendant, in driving his horses, in a sleigh, rapidly along, ran against him and injured him, for which he brought an action of trespass. On the trial, the plaintiff offered to prove, that at the time of the occurrence the defendant was intoxicated. The defendant objected to the evidence, and the court rejected it, and sealed a bill of exceptions at the instance of the plaintiff. The court below instructed the jury, that, if the in- jury done to the plaintiff was a consequence of the negligence of the defendant alone, he was entitled to recover damages; but if it was occasioned partly by the negligence and carelessness of both parties, the plaintiff was not entitled to recover. This direction, and the rejection of the evidence mentioned, were the subjects of the errors assigned. Per Curiam : " The direction was right ; and if there was error, it was on the part of the jury. The prin- ciple, that there is no recourse by action for an injury which is the consequence of negligence on both sides, was laid down by this court,^ which was a case of negligence in the collision of ships. But the law of the particular case was laid down in this instance, by the court below, in exact conformity to the direction of Mr. Justice Alderson,* that a person who leaves the ordinary side of the road is bound to use more care and diligence, and to keep a better lookout to avoid concussion than would be requisite if he were to confine himself to the proper side. It Was for the jury, tlierefore, to say, under all the circumstances, whether the plain- tiff was chargeable with negligence, having left the sidewalk, in not looking behind as well as before, to avoid contact with persons riding or driving in the middle of the street. If he was, the de- ' Wolf V. Beard, ub. sup. ' Wynn v. AUard, 5 Watts & S. 544. ' Simpson v. Hand, 6 Whart. 320, * Pluckwell V. Wilson, 5 Car. & P. 379, and cited ante, § 556. CHAP.' XI.] THEIR DUTY AS TO PROPERTY BY THE WAYSIDE. 487 fendant would be answerable only for negligence so wanton and gross as to be evidence of voluntary injury. But the evidence of intoxication ought to have been received ; not because the legal consequences of a drunken man's acts are diiTerent from those of a sober man's acts, but because, where the evidence of negligence is nearly balanced, the fact of drunkenness might turn the scale, inasmuch as a man partially bereft of his faculties would be less observant than if he were sober, and less regardful of the safety of "others. For that purpose, but certainly not to inflame the damages, the evidence ought to have been admitted." Judg- ment was reversed, and a venire de novo awarded. The liability for injuries to foot-passengers, occasioned by a collision with railroad cars or engines, is the same as that which arises in re- spect to a collision between two common carriages meeting on the highway .' (a) \ 566. [(9.) Their Duty to avoid Injury to Property on the Wayside.'] It is the duty of the proprietors of railroads and steamboats, and of their agents and servants, in the transportation of passengers as well as of goods, so to manage their fires, while their locomotives or boats are passing buildings on the route of travel, that no fire shall be communicated to such buildings. Owners of land on the shore of a river or lake, or of land adjoin- ing the track of a railroad, are not prohibited from building thereon, and they are so far entitled to protection from persons lawfully passing the same with vessels or carriages propelled by steam, as to be secured against such a want of proper precaution on their part, the consequence of which is to set the buildings on fire. This is in conformity to the familiar maxim, sic utere tuo ut alienum non Itsdas. In an action for injuries so happening to buildings by the owner of them, it is competent for him to prove that experienced persons were accustomed to use precautions ' Brand v. Troy R., 8 Barb. 368; and see ante, §§ 523, 566, et seq. (a) See Shaw v. Boston R., 8 Gray, 45 ; Gahagan v. Boston R., 1 Allen, 187 ; Fletcher v. Boston R., 1 Allen, 9 ; Bilbee v. London R., 18 C. B. N. s. 584 ; Stap- ley V. London R., Law Rep. 1 Ex. 21 ; Stubley v. London R., lb. 13 ; Lunt v. London R., lb. 1 Q. B. 277 ; Wilds v. Hudson River R., 29 N. Y. 315 ; Newsom V. New York R., lb., 383 | Brown v. New York R., 32 N. Y. 597 ; Beisiegel v. ,^ New York R., 34 N., Y. 622 ; Ernst v. Hudson River R., 35 N. Y. 9 ; Mackay D. New York R., lb. 75 ; Philadelphia R. v. Spearen, 47 Penn. State, 300 ; North Penn. R. v. Heileraan, 49 lb. 60 ; Wakefield y. Connecticut R., 37 Vt. 330 ; Tel- fer V. Northern R., 1 Vroom, 188. 488 LAW OF CARRIERS. [CHAP. XI. ■which the defendants neglected. Persons erecting buildings in places such as above-mentioned, thoiigli they assume the risk of more than ordinary danger from accidental fires, they do not assume the risk of another's tortious negligence.^ It seems to be the doctrine in this country, that negligence being the gist of the action in these and like cases, it must bfe proved, and the burden of proof is on the plaintiff; that the defendant's fire being law- fully kindled, it being an element applied to many valuable and useful purposes, and may become destructive from causes not subject to human control, the fact that an injury has been done to others is not in itself evidence of negligence. Thus, in an action for injury done to the plaintiff's land and fences, alleged to have been occasioned by the defendant's carelessness in setting a fire on his own land, the burden of proof, it was held, was on the plaintiff to show that the injury was caused' by the neglect or misconduct of the defendant.^ (a) Again, where a locomotive, belonging to a railroad company, drawing a train of cars, was passing, some sparks from the smoke-pipe passed directly there- from to a roof of a building of the plaintiff standing eighteen inches from the side of the road, whereby the building was set on fire and consumed ; it was held, in an action against the company, that the company was not liable.* One of the facts deserving of notice in this case is, that the plaintiff placed his building in the position it was after the road was built ; (Z>) but it is apprehended that the owner might have so built in close proximity to the rail- road, and although the house would be more exposed than it would be at a greater distance, yet this does not exempt the com- pany's servants from the obligation of care, nor screen the company from the consequences of their negligence.* It being a perfectly well-known rule, that, in the construction of a grant, when anything is granted, all the means to attain it, and the ex- ' Cook V. Champlain Transp. Co., 1 Denio, 91. ' Bachelder v. Heagan, 18 Maine, 32. ' Burroughs v. Housatonic R., 15 Conn. 124. See also Maule i'. Wilson, 2 Harring. Del. 493. * Cook V. Champlain Transp. Co., ub. sup. ; Railroad Co. v. jYeiser, 8 Barr, S6G. (a) Sheldon v. Hudson River R., 29 Barb. 226 ; Fero i'. Buffalo R., 22 N. Y. 209 ; Hinds v. Barton, 25 N. Y. 544. (6) See Macon R. v. McConnell, 27 Ga. 481. CHAP. XI.] THEIR DUTY AS TO PROPERTY BY THE WAYSIDE. 489 pected effects of it, are granted also ; ^yhell a grantor conveys a certain definite parcel of land for the purpose of constructing a railroad out of a much larger parcel retained by him, the grant is subject to all the consequences necessarily attendant upon such a uSe of the same ; and particularly such as would result from the running of engines, and the consequent exposure of property, on his adjacent land. So that, if, while the railroad company is in lawful pursuit of its legitimate business, a fire is communicated to the grantor's remaining" lands (woodland for example), by a spark from the engine, by which he sustains damage, it is damnum absque, injuria, and the company will not be mulcted in damages, unless upon the most clear proof of negligence. ^ § 566. a. In England, the fact that premises have been set on fire by sparks emitted from a passing railroad engine, it seems, is frimd facie evidence of negligence on the part of the company, rendering it incumbent on the company to show that some pre- cautions had been adopted by them reasonably calculated to prevent such accident. Thus, where it appeared in evidence, in an action against a railroad company for setting fire to a building near the road by sparks of fire having escaped from the company's engihes, that shortly after the engine had passed near to where the building was the latter was observed to be on fire ; that sparks or ignited matter had been seen on various occasions to be emitted by the company's engines ; that the emission of sparks depended on the rate at which the engines were impelled, having reference to their power, and there were other modes by which it could be prevented ; it was held, that the case showed a primd facie case of negligence, for which the company was responsible.^ (a) § 567. Cases, therefore, of damage done to buildings by sparks of fire, or other igneous matter from the engines of steamboats, or locomotives on railroads, in ordinary use, are proper for the jury ; wlio must be satisfied that every proper precaution was observed to avoid such damage. In an action against a railway company, the declaration stated that the defendants, by their servants, so carelessly, negligently, and improperly managed their steam-en- gine, and the fire therein contained, that through such negligence, •&c. divers sparks and portions of said fire passed from the steam- ' Rood V. New York R, 18 Barb. 80. ' Piggot V. Eastern Counties K., 3 C. B. 229. (a) See Bass v. Chicago K., 28 111. 9. 490 LAW OF CARRIERS. [CHAP. XI. engine of the defendants to and upon a certain rick of beans of the plaintiff, standing in a field near the said railway, wliicli, by means thereof, became ignited and consumed. The plea was " not guilty " ; and in a special case, stated for the opinion of the court under a judge's order, it was stated that the plaintiff had erected the rick about eleven yards from the rails of the railway ; that the engines and boiler used upon this railway were such as are usually employed on railways, and were used at the time of setting fire to the rick, in the ordinary manner, and for authorized purposes. It was held, that upon this statement there was evi- dence for the jury on the question of negligence in the defendants, and tliat they were not entitled to a nonsuit ; and consequently that the case was improperly stated for the opinion of the court. Maule, J. said : " The only question of law here is, whether, upon this statement of the evidence, the plaintiff ought to be non-suit- ed. I think clearly not ; because, if the case went to the jury, there is evidence in which they might find negligence in the de- fendants." 1 (a) ' Aldridge v. Great Western E., 3 Man. & G. 515. One who is exercising, a public trade or business which requires the use of a steam-engine, is liable for any injury to another in consequence of its insufficiency. Spencer v. Campbfell, 9 Watts & S. 32. It has been recognized as law, in many ancient decisions in Eng- land, that an action lies for any act done by a man in using his own property, where- by the rights of another are injured, unless such act be altogether inevitable and beyond his control. In one instance, the action was for so negligently keeping a fire in a field, that it communicated to the plaintiff's adjoining close, and burnt his heath. After verdict for the plaintiff the defendant moved in arrest of judg- ment, and it was said : " And in fact in this case the defendant's servant kindled the fire by way of husbandry, and a wind and tempest arose and drove it into his neighbor's field" ; and the court said : " The fire in his field is his fire as well as that in his house. He made it, and must see that it does no harm, and answer the damage if it does. Every man must use his own so as not to hurt another;" but if a sudden storm had risen which he could not stop, it was matter of evidence, and he should have shown it." Tuberville v. Stampe, 1 Ld. Raym. 264, 1 Salk. 13. That cases of this sort fall within the general rule of law which requires that a man shall so use his own property as not to injure or destroy that of another; and that they are neither cases of contract or bailment, see Vaughan v. Menlove, 4 Scott, 244, recognizing the doctrine in Tuberville v. Stampe, ub. sup. In con- formity to the maxim sic utere iuo, &c., where the defendants dug a canal for the (a) See Huyett v. Philadelphia R., 23 Penn. State, 373 ; Mansfield Iron Works I). Willcox, 52 Penn. State, 377; Sheldon u. Hudson River R., 4 Kern, 218; Vaughan v. Taff Vale R., 3 H. & N. 743 ; Freemantle v. London R., 10 C. B. n. s. 89. CHAP. XI.] THEIR DUTY AS TO PEOPEETY BY THE WAYSIDE. 491 § 567 a. But besides decisions at common law, on the subject of the responsibility for injuries occasioned by sparks from a loco- motive, there have, in this country, been several instances of a judicial construction of statutorylaw on the subject. By the stat- ute law of Massachusetts it is provided, that, when any injury is done to a building of any person " by fire communicated " by a locomotive engine, the corporation shall be responsible in damages to the person so injured ; and it has been held, that, where a shop adjoining a railroad track was destroyed by fire so communicated, and while the shop was burning the wind wafted sparks from it across a street upon a house, and set it on fire, the owner of the house was entitled to recover.^ (a) In Maine, railroad companies are liable by statute for injuries by fire communicated by locomor tives to buildings or other property. The court held, that for in- juries to other property, a railroad company will only be respon- sible in consequence of negligence or imprudence in conducting their locomotives.^ A legislative act of Maryland, of 1837, made a railroad company responsible in damages for property injured by fire, caused by an engine on^the road, whether there was neg- ligence or not. An act of the State of 1838 provides that such company shall be responsible, unless the company can prove to the satisfaction of the tribunal before which the suit is tried that the injury has been done "without any negligence" on . their part. Tlie last act being, in regard to negligence, inconsistent with the first, therefore, in that respect repeals it, and restores the rule of the Common Law, except so far as to cast the onus of proving the absence of negligence on the defendant.^ (J) purposes authorized by their charter of incorporation, and were obliged to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff's house ; it was held, that the defendants were liable, though no negli- gence was alleged or proved. Kay v. Cohoes Co., 2 Comst. 159. ' Hart. V. Western R., 13 Met. 99 ; and see Lyman v. Boston K., 4 Cush. 288. ' Chapman v. Atlantic R., 37 Maine, 92. ' Baltimore R. v. Woodruff, 4 Md. 242. (b) See Ross v. Boston R., 6 Allen, 87 ; IngersoU v. Stockbridge R., 8 Allen-, 438 ; Hooksett v. Concord R., 38 N. H. 242. In Ryan v. New York R., 35 N. Y. 210, the defendant's locomotive through negligent management set fire to a wood-shed belonging to the defendant ; from this the fire communicated to the plaintiff's house. Held, that the plaintiff had no cause of action against the de- fendant, the damage being too remote. (b) A subsequent act passed in 1846 requires that the railroad company shall, m order to exempt itself from liability, prove " that the damage or injury sustained 492 LAW OF CAEKIEES. [CHAP. XI. § 567 b. In addition to injuries and nuisances occasioned in the mode above stated, the authorities represent other legal intoler- ances. As, for instance, it has been held, that an action may be sustained against a railroad company for a nuisance in running their cars and engines, ringing bells, blowing off steam, and mak- ing other noises in the neighborhood of a church, or meeting-house, on the- Sabbath, and during public worship, which may so molest the congregation worshipping there, as greatly to depreciate the value of the house, and render the same unfit for a place of re- ligious worship.! And yet, where a horse, while being led along a highway, is so frightened by an engine and train of cars rapidly passing along a railroad near by, tliat he bursts a blood-vessel and dies, no action will lie against the company for the injury, for an authority by the legislature to use an engine is an authority to make a noise.^ (o) § 567 c. Among the injuries done by the passing of railroad trains are such as are done to stray cattle. It is well settled that the proprietors of a railroad are not under obligation to fence their road to prevent cattle from straying upon it, unless they are re- quired so to do by statute.^ (6) ' First Baptist Church v. Schenectady R., 5 Barb. 79. " Moshier v. Utica R., 8 Barb. 427. " Ricketts V. East India DocksR., 12 C. B. 160, 12 Eng. L. & Eq. 521 ; Lord v. was the result of unavoidable accident." In Baltimore R. v. Lamborn, 12 Md. 257, it was held, that although the railroad was in fault, the plaintiff could not recover if his negligence contributed to the accident. See also Keech o. Balti- more R., 17 Md. 32. (a) See, as to the liability of a railroad to the owner of a house destroyed by fire in consequence of the locomotive running over and cutting hose which was across the track, Mott v. Hudson River R., 8 Bosw. 345, 1 Rob. N. Y. 585. (5) Stearns v. Old Colony R., 1 Allen, 493; Baltimore R. v. Lamborn, 12 Md. 257 ; Knight v. New Orleans R., 15 La. Ann. 105. A statute requiring railroads to be fenced, is a regulation for the safety of passengers, and the legislature has the right to impose such a duty on , a railroad already chartered, although the charter is not amendable. New Albany R. v. Tilton, 12 Ind. 3 ; Indianapolis R. V. Kercheval, 16 Ind. 84 ; Ohio R. i-. McClelland, 25111. 140; Thorpe v. Rutland R., 27 Vt. 140. If the duty is imposed by statute, the company cannot divest itself of responsibility by making private contracts with the landholders along the road, by which they agree to make and keep up the fences. New Albany R. v. Maiden, 12 Ind. 10. In Housatonic R. v. Waterbury, 23 Conn. 101, the plain- tifif 's farm had been cut in two parts by a railroad, and there was no way of get- ting from one part to the other except by crossing the railroad. Held, that the plaintiff had the right to cross the railroad with his cattle, but not to let the cat- CHAP. XI.] INJURY TO CATTLE. — DEGREE OF RESPONSIBILITY. 493 § 568. [(10.) -4s to the Degree of Responsibility.] "We have already endeavored to show the difference in respect to the degi'ee Wormwood, 29 Maine, 282, and many cases therein cited; Trow v. Vermont E., U Vt. 487 ; Griffin v. Martin, 7 Barb. 237 ; Kerwhaclser v. Cleveland K., 3 Ohio State, 172; Underhill v. New York E., 21 Barb. 489; Cornwall v. Sullivan E., 8 Foster, 160, and cases therein referred to; Williams v. Michigan Central E., 2 Gibbs, 259. See Law Eep. for June, 1853, p. 83. The following is the law on the subject : " It is an act of negligence to suffer cattle to be at large in a high- way at railroad crossings. Therefore, where the owner of a cow allowed her to be at large in the highway, and upon the railroad track, at the usual time for the passenger train to pass, and the cow was killed by the train of cars ; the owner of the cow eoutd not recover the value of the cow of the railroad company. Clark 0. Syracuse E., 11 Barb. 112. As a general rule, when a beast is wrongfully.in a common highway, and from thence strays on to a railroad track, and is killed by the engine in passing, the railroad company is not liable to the owner of the ani- mal, unless the injury was the result of the gross negligence of the engineer. ■\Valdron v. Eenssalaer E., 8 Barb. 390; Moshier v. Utica E., Ibid. 427. See 13 Ibid. 496. (a) In the matter of Long Island Eailroad, 3 Edw. Ch. 487, it was held by Vice-Chancellor McCoun, that owners of land which adjoin a railroad can- not compel the railroad company to put up a fence along such road, nor require them to contribute thereto ; there does not exist that mutuality of benefit between the company and the owners of the adjoining land which can compel such com- pany to make or contribute to the making of fences ; (J) and the Vice-Chancelr lor on the occasion remarks : " I am well satisfied, from the testimony of the wit- nesses, who speak from what they have seen and experienced on this and other railroads from a number of years, that it is noi necensary that a railroad should be tie loiter or pasture upon the track, and that this right of crossing must be rea- sonably exercised. See White v. Concord E., 10 Foster, 188. If a railroad company agrees to fence a piece of land, and does not fence it, it is liable for dam- ages done to cattle which have strayed from the land oft to the railroad. Conger ». Chicago E., 15 111. 366. It must, however, clearly appear that it was owing to the absence of the fence that the injury happened. Joliet E. v. Jones, 20 111. 221. (a) Eailroad Co. v. Skinner, 19 Penn. State, 298 ; North Pennsylvania E. v. Kehman, 49 Penn. State, 101 ; Drake v. Philadelphia E., 51 lb. 240 ; Chicago E. u. Patchin, 16 111. 198; Louisville E. v. Ballard, 2 Met. Ky. 177; Terre Haute K. V. Augustus, 21 III. 18G; Eoberts v. Great Western E., 4 C. B. N. s. 506; Chicago E. u. Cauffman, 28 III. 513. If there is gross negligence on the part of the company or its servants, the company is liable. Pritchard v. La Crosse E., 7 Wis. 232. In California an owner of cattle is not obliged to keep them in his close. Waters v. Moss, 12 Calif. 535. See Eichmond v. Sacramento E., 18 Calif. 351. See also Aycock v. Wilmington E., 6 Jones, 231 ; Montgomery v. Wilmington E., lb. 464 ; Laws v. North Carolina E., 7 Jones, 468 ; Alger v. Mississippi E., 10 Iowa, 268. As to the rule of damages where the cattle are not killed, see Illinois Central E., v. Finnigan, 21 111. 646. (5) Alton E. V. Baugh, 14 111. 211 ; Chicago E. v. Patchin, 16 HI. 198; Eail- road Co. V. Skinner, 19 Penn. State, 298. 494 LAW OF CARRIERS. [CHAP. Xi; of responsibility between common carriers of passengers and com- inon carriers of goods ; and, in so doing, it was stated to be well fenced at the sides to insure the safety of persons and property in transit on the road against accidents from cattle getting thereon. Indeed, it is very clearly to be perceived that there is less danger of running over them when they do get upon the road, where there is no side fence to prevent their going off, than where there is such an obstruction." What are called " cattle guards " at each end are all that can be required. Case of Rensselaer and Saratoga Railroad, 4 Paige, Ch. 553. The main question in a case in the Court of Appeals, of New York, was presented by the plaintiff's offer to prove that the defendants were guilty of negligence, and that by the exercise of ordinary care on their part the oxen alleged to have been killed would not have been. By the court, Hurlbut, J. : " Taking this as proved, the case stands thus : The defendants, in the rightful use of their railway, while propelling their engine with cars attached, and running at a low rate of speed, struck and killed the plaintiff's oxen, which had strayed on the track of the railway and were trespassing at the time. The result might have been avoided by the exercise of ordinary care on the part of the defend- ants, whose negligence contributed to produce the injury complained of; and the question is, whether, under such circumstances, the plaintiff can maintain his ac- tion. It is obvious that the plaintiff would have received no injury if the oxen had not been on the track of the railway ; and having been there without right, the law imputes a fault to the plaintiff. On the other hand, although the plaintiff was in fault, the injury would not have happened but for negligence and the want of ordinary eare on the part of the defendants ; and assuming this to be a fault on their part, the injury then would appear to have resulted from the common fault of both parties. But, if we were permitted to inquire as to the degree of blame which attached to each, we should be obliged to pronounce that the principal must be attributed, to the plaintiff"; and he was not entitled to recover. Hunger w. Tonawanda E., 4 Comst. 349. See the case nom. Tonawanda K. v. Munger, in 5 Denio, 255. If the cattle of a stranger be on the lands of another, adjoining a railroad, and from those lands they pass on to the railroad through a gate left open by the proprietor of such lands, and are killed by the engine, their owner cannot recover their value, although the railroad company has not complied with a statute in respect to fences, at other points of the road. Brooks v. New York K., 13 Barb. 594. So, in another case, it was held, that, if a railroad company is bound to fence the entire track, yet, if a cow comes from a highway, or common, for want of fence, and is killed, the owner cannot recover, unless he proves af- firmatively that the cow had a lawful right to be on the common by a town vote. Perkins v. Eastern R., 29 Maine, 307. («) But in Fawcett v. North Midland R., 16 Q. B. 610, 2 Eng. L. & Eq. 289, where the act required the defendants to (a) In New Hampshire, a railroad company is not liable to the owners of land adjoining their road for damages committed on those lands by cattle wrongfully permitted by their owners to run at large in the highway, and thence escapmg upon the railroad track, and from thence, through defects of the fences of the railroad, upon the lands of such adjoining owners. Chapin ». Sullivan R.i 39 N. H. 53, 664. CHAP. XI.] INJURY TO CATTLE. — DEGREE OF RESPONSIBILITY. 495 established that the former are not, like the latter, insurers against all injuries, except by the act of God, or by the public enemy. It .keep gates constantly closed at road-crossings, and the plaintiff's horse leaped out of his enclosure into the highway, and passed on to the railroad, because the gate was open, it was held that he could not recover the value of the horse which was killed ; and that the horse, as to the defendants, was lawfully in the highway. See anle, § 556, in relation to mutual negligence ; and ante, § 561. (a) The Ver- mont Central Railroad Company are obliged by law to erect and maintain such fences and cattle-guards upon their roads as will, prevent horses and other ani- mals from passing them. Quimby v. Vermont K., 23 Vt. 393. But it has been held, that under such laws it is the duty of the owner of cattle, knowing an ex- posed situation of a railroad track, to exercise as much care and prudence in keeping his property from exposure to injuries therefrom as is required of the company in guarding against their commission ; and if, in such case, he permits his (o) In Massachusetts it is held that a railroad corporation, which is obliged by statute to make all needful fences and cattle-guards on the sides of its railroad, is liable lor injuries by its engines to cattle straying at large through the land of a stranger upon its road, by reason of its negligence in placing such fences and guards. Browne u. Providence R., 12 Gray, 55. See also Corwin v. New York E., 3 Kern. 42 ; Murch v. New York R., 29 Barb. 647 ; Duffy w. New York R., 2 Hilton, 496; Sharrod v. London R., 4 Exch. 587; Isbell v. New York R., 27 Conn. 393. And a railroad company, which is bound to erect and maintain a sufficient fence, is liable if a horse, feeding in an adjacent pasture, escapes through a defect in the fence and is injured by the cars, without proof of any care on the part of the owner to prevent such an escape, and evidence of notice to the owner that the horse had escaped several times before and had been on the track is im- material. Rogers V. Newburyport R., 1 Allen, 16. See also Norris v. Andro- scoggin R., 39 Maine, 273, where it was held to be no defence to an action against a railroad for damages caused by the insufficiency of a fence, that the plaintiff originally built the fence for the railroad in an insufficient manner. And in New Hampshire, a land-owner through whose farm a railroad runs may turn his cattle into his fields, and if they are injured by the railroad, he may recover, although he knew that the fences were insufficient. Horn v. Atlantic R., 35 N. H. 169. See also Smith v. Eastern R., 35 N. H. 356 ; Chapin v. Sullivan R., 39 N. H. 564 ; Clark v. Vermont R., 28 Vt. 103 ; Holden v. Rutland R., 30 Vt. 297 ; In- dianapolis R. V. Townsend, 10 Ind. 38 ; Whitney v. Atlantic K., 44 Maine, 362 ; Bulkley v. New York R., 27 Conn. 479 ; Chapman v. New York R., 31 Barb. 399, 33 N. Y. 369; New Albany R. v. Pace, 13 Ind. 411; Indianapolis R. v. Wharton, 13 Ind. 509; New Albany R. v. Aston, 13 Ind. 545 ; Gardner v. Smith, 7 Mich. 410 ; Galena R. v. Crawford, 25 111. 529 ; McCall v. Chamberlain, 13 Wis. 637. In Maryland, the effect of the statutory regulations is to throw the burden of proof on the defendant, in a action against a railroad for injury to cat- tle. Keech V. Baltimore R., 17 Md. 32. If trains are run under the direction and control of a railroad company, the company is liable for damage caused by an insufficient fence, although other persons receive the earnings of the road. Wyman ». Penobscot R., 46 Maine, 162. 496 LAW OF CARRIERS. [CHAP. XI. was moreover stated, that the nature of their undertaking was to carry " safely and securely," and that although they did not thus cattle to run in the highway, knowing that there is no obstruction to their passing, from thence upon a railroad track, he is guilty of the same degree of negligence as that with which the company are chargeable, in permitting their railroad to be thus exposed, and no action can be sustained. Trow v. Vermont R., 24 Vt. 487. (a) In a case in England, in the Court of Queen's Bench, it appeared that by an act of Parliament (5 & 6 Vict. c. 55), after reciting that experience had shown that it was more conducive to safety that gates should be kept closed across the turnpike or other road, instead of across the railway, enacted, that " such gates should be kept constantly closed across each end of such turnpike or other roads in lieu (as formerly provided by 6 & 7 Wm. 4) of across the railroad, ex- cept during the time when horses, cattle, carts, or carriages passing along such turnpike or other road shall have to cross such railway." It being pleaded that certain horses were not lawfully on the highway, it was held, 1st, that the road formed by the company was a highway, though the parish migUt not be bound to repair it ; and 2dly, that the defendants being required by their railway act to keep the gate at the crossings constantly closed, the horses were, as against the defendants, lawfully on the highway, and hence, the plaintiff was entitled to recover. Fawcett v. York R., 16 Q. B. 610, 2 Eng. L. & Eq. 289 ; and see Schofield V. Schunck, Q. B. 1865, 30 Eng. L. & Eq. 233. Railroad corporations are not bound under an act of the legislature to make or keep fences, except against the land of persons adjoining the railroad ; and it was held, that the rail- road company was not liable for a beast killed which escaped from its pasture into an adjoining highway, which was crossed by a railroad, in land not owned by the plaintiff. Towns v. Cheshire R., 1 Foster, 363. The beast was wrongfully away from its pasture. Cornwall v. Sullivan R., 8 Foster, 161. And see Jones v. Waltham, 4 Cush. 499 ; Perkins v. Eastern R., 29 Maine, 307. In the State of New York, if a railroad company has failed to comply with the directions of the act of March 27, 1848, by which all railroad companies are required to erect and maintain fences, and to construct and maintain cattle-guards at all crossings, it is chargeable with negligence in such case, and responsible for the injury. Waldron V. Rensselaer R., 8 Barb. 390. (J>) (a) See Woolson v. Northern R., 19 N. H. 267 ; Jackson v. Rutland R., 25 Vt. 150 ; Morse v. Rutland R., 27 Vt. 49. (J) See Shepard v. Buffalo R., 35 N. Y. 641. But this absolute liability has been held to cease if the railroad has constructed and maintains proper fences and cattle-guards. If the cattle-guard is filled with snow, and a cow thereby gets on to the track, the company is not liable for damage done to the cow if the owner of it is also guilty of negligence. Hance v. Cayuga R., 26 N. Y. 428. In In- diana, if the road is securely fenced on each side, and there are sufficient cattle- guards at the crossing, a railroad company is not liable for running over an ani- mal on the highway, where the railroad is not guilty of negligence. Lafayette K. V. Shriner, 6 Ind. 141 ; Northern Indiana R. v. Martin, 10 lb. 460. See Indiana R. V. Gapen, 10 lb. 292 | Indianapolis R. v. Townsend, 10 lb. 38; Madison E. v. Kane, 11 lb. 875 ; New Albany R. v. McNamara, 11 lb. 543 ; Indianapolis R. v. Snelling, 16 lb. 435. CHAP. XI.] PASSENGER CARRIERS. — DEGREE OF RESPONSIBILITY. 497 impliedly warrant the safety of tlie passengers at all events, yet that they were bound to the " utmost " care and skill in the per- formance of their duty.^ (a) , The term here used expresses the idea of something beyond ordinary care, which the Iji.vv considers the limit of liability to which carriers of goods for hire, who are not common carriers, are held.^ The degree of their responsibili- ty, therefore, to whicli carriers of passengers are subjected, is not ordinary care, which will make them liable only for ordinary neg- lect, but extraordinary care, which renders them liable for slight neglect.^ It is the danger to the public which may proceed even from slight faults, unskilfulness or negligence of passenger car- riers or their servants, and tlie helpless state in which passengers by their conveyances are, which have induced both courts of law and juries, both in England and in America, to bind the rule of the contract, localio operis,* much tighter than they could be in- sisted for on the ordinary principles of that contract.^ The most inconsiderable departure, therefore, from the important duties which in the preceding pages arc laid down and explained, as du- iies, imposed upon passenger carriers, will render them liable for the consequences. § 569. That the onus probandi is on the proprietor of the vehi- cle to establish that there has been no disregard whatever of his duties, and that the damage has resulted from a cause which hu- man care and foresight could not prevent, is well settled.^ (6) As ' Ante, §§ 521 - 524. « See ante. Chap. III. ' See Ingalls ». Bills, 9 Met. 1 ; Stokes f. Saltonstall, 13 Pet. 181 ; and see also ante, § 523. * Seean(e, § 13. » 1 Bell, Com. 372 ; Story on Bailm. § 601 ; 2 Kent, Com. 600. " They " (car- riers of passengers) " are bound to the utmost care and diligence of very cautious persons ; and of course they are responsible for any, even the slightest neglect." 2 Greenl. Ev..§ 221. Passenger carriers, says Mr. C. J. Shaw, "are held to the strictest responsibility for care, vigilance, and skill, on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the responsibility upon those who can best guard against it." Farwell v. Boston R., 4 Met. 49. ' Ibid. ; Ingalls v. Bills, uh. sup. ; Ware v. Gay, 11 Pick. 106 ; Christie v. Griggs, 2 Camp. 79. (a) Sales v. Western Stage Co., 4 Iowa, 54 7 ; Edwards v. Lord, 49 Maine, 279. (6) If a lamp burst in an omnibus, the duty of proving that the fluid in the lamp was a safe and proper article is on the carrier. Wilkie v. Bolster, 3 E. D. 32 498 LAW OF CAKEIEBS. [chap. XI. ■was laid down by the court, in McKinney v. Niel,^ the upsetting of a stage-coach is primd facie evidence of negligence ; and a pas- senger who has been injured need show nothing more to sustain his action ; -and it will then be incumbent on the defendant to show, by way of reducing the damages, or in bar of the action, the circumstances of the case. In the Supreme Court of the United States, it was admitted that the carriage was upset, and the plaintiff's wife injured ; and it was held incumbent on the defend- ant to prove that the.driver was a person of competent skill and of good habits, and in every respect qualified for his business ; and that he acted on the occasion in question with reasonable skill and with the utmost prudence and caution ; and that if the disaster was occasioned by the least negligence, or want of skill or pru- dence on his part, then the defendant was liable.^ In a case where an accident happened to a passenger on a railroad, it was held to be primd facie evidence of negligence ; and Lord C. J. Denman instructed the jury, that it having been shown that the exclusive management of the machinery and the railway was in the hands of the defendants, it was presumable that the accident arose from their want of care, unless they gave some explanation of the cause by which it was produced ; which explanation the plaintiff, not having the same means of knowledge, could not reasonably be ex- pected to give. The learned judge also adverted to the sugges- tion of a witness, that the speed was too great for the state of the rails at the spot, as furnishing one hypothesis that might account for the event.^ (a) If a passenger by railroad permits his hand ' McKinney v. Niel, 1 McLean, C. C. 540. ' Stokes V. Saltonstall, 13 Pet. 181. » Carpue v. London R., 5 Q.B. 747. Smith, 327. In Bowen v. New York Central K., 18 N. Y. 408, it is said that thfe general rule does not require such particular precautions as it is apparent, after the accident, might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to occur. (o) In Le Barron v. East Boston Ferry Co., 11 Allen, 312, this rule is held to be confined to the case where the nature of the accident affords some proof of the carrier's negligence. And in Curtis v. Kochester B,., 18 N. Y. 534, it is held that the fact that an accident has taken place raises a presumption of negligence on the part of a railroad, only when it appears that the accident resulted from a defect in the road or some part of the apparatus employed jn operating it. See Edgerton v. New York R., 35 Barb. 193 ; Brehm v. Great Western R., 34 Barb. 256 ; Dawson v. Manchester R., 7 H. & N. Am. edit. 1037 ; Hammack v. White, 11 C. B. N. 8. 594, per Erie, J. ; Great Western R. v. Braid, 1 Moore, P. C. N. s. 116. CHAP. XI.J PASSENGER CAEEIEES. — LIABILITY AS TO BAGGAGE. 499 to extend outside of the window of the car, whereby his arm is broken in passing a bridge, the carrier is not liable for the injury ; though, if the place of accident is one of unusual danger, it is the duty of the carrier, or his servants, to give warning.^ (a) , § 570. But, as there has been occasion before to say, passenger oarriers, not being insurers, are not responsible for injuries from accidents where the utmost skill and diligence have been em- ployed ; and on this point we would again refer the reader to the case of Ingalls v. Bills.'-* Accidents may happen, notwithstanding the utmost care and diligence are exercised to prevent them. The lights, which it is the duty of passenger carriers to have in a dark J night, may be obscured by fog ; the horses may be frightened without the fault of the driver, as by the sudden firing of a gun ; or the driver may be deceived by tlie sudden alteration of objects on the way ; or an unexpected obstruction may be encountei'ed ; ■or, the driver, from the intense severity of the cold, may, at the time of unexpected danger, become physically incapable of man- aging his horses, or of otherwise doitig his duty. These, and the like cases, are such as will exonerate the proprietors of the vehi- cle.^ If a driver of a stage-coach imprudently attempts to pass another on the road, and it appears that the latter did not say or do anything to provoke a reckless competition, and, on the con- trary, sought to avoid it, and did all that a prudent and skilful driyer could do to avoid the consequences of the recklessness of the former, he is not liable, however serious the consequences may have been to his passengers.* §571. [(11.) Their Duties and Liabilities in respect to Bag- gage.'] This is a subject which has already been fully consid- ered and illustrated by the aid of adjudged cases, in the preced- ing portions of our work, to which it more properly belongs, as constituting the law of the duties and responsibilities of common carriers of goods ; and to which we would refer the reader ; and ' Laing v. Colder, 8 Barr, 479. ' Ingalls V. Bills, 9 Met. 1, and cited ante, § 536. ' Story on Bailm. §602. * By the court, in its charge to the jury in Peck v. Niel, 3 McLean, C. C. 22 ; Monroe v. Leach, 7 Met. 274. (a) See Todd v. Old Colony K., 3 Allen, 18, 7 lb. 207. This case holds the passenger guilty of negligence as a matter of law, in putting his arm out of the window of a car in motion ; but in New Jersey R. v. Kennard, 21 Penn. State, 203, the question of ilegligence was held to be one for the jury in such a case. See ante, § 559. 600 LAW OF CARRIERS. [CHAP. XL the general rules of law on the subject we shall here only sum- marily recapitulate. Public passenger carriers are bound not only to receive as passengers all persons who offer themselves as such, but, like common carriers of goods unattended by tiie owner, tliey are bound to receive the articles which the traveller has with him, and which constitute his baggage or luggage.^ We have already seen, that common carriers of passengers, in so far as regards the baggage or luggage delivered, to them by a traveller, are liable to the same extent as common carriers: of goods and merchandise ; ^ that is, they insure baggage against all losses, whether proceeding from the negligence or miscon- duct of themselves, their servants, or even all third persons, with the exception of the owner. The only mode, in short, by which they can exonerate themselves from liability in case the bag- gage of a passenger is lost, is by showing that the loss was occasioned by the act of God or the public enemy ,^ or by .the negligence of the owner himself after he has assumed the cus- tody, or direction of it.* A public notice that " all baggage is at the risk of the owner " will not have this effect.* At the ter- mination of the route of a stage-coach, railroad, or steamboat, the conductors thereof are also bound to make a proper delivery of the baggage to the true owner of it; a duty by no means difficult, as it requires but ordinary care in marking the baggage or luggage, entering it on the way-bill, and delivering a check to the owner .^ The mere fact, we have seen, that goods iii the form of merchandise, transported by a common carrier of them, have arrived at their place of destination in safety, is no dis- charge of the carrier from his responsibility until they are' deliv- ered to the owner, even if he be not ready at once to receive it ; for he is under obligation to keep it for a reasonable time, although, if it is not called for in a reasonable time, his liability as a common carrier will be reduced to that of an ordinary ^ As to the duty of common carriers to receive baggage, see the subject treated at large, ante, Chap. V. and ante, § 524, el seq. ^ See the subject fully considered in Chap. IV. § 107, et seq., and Chap. VIII. § 317, et seq. ' Ante, Chap. VI. * Ante, §§ 113, 140. » See ante, § 238, et seq. ' Story on Bailm. § 595; and see the subject of the proper delivery of baggage fully considered, ante, §§ 317 - 325. CHAP. XI.] PASSENGER CARRIERS. — 'LIABILITY AS TO BAGGAGE. 601 bailee. The same rule applies in respect to the delivery of arti- cles in the form of, and composing the baggage of a traveller.^ Like a common carrier of goods, a passenger carrier is also liable, as we have seen, 'for a misdelivery of bagagge, although it is delivered to a wrong person by mistake, and with no fi'aud- ulent intent.^ The responsibility of the carrier for the safety of the baggage commences, of course, with a delivery of it to hifn, and a delivery at his ofiBce or to an agent is a delivery to him. These general rules have, been already laid down, and, as we have said, more fully illustrated, in preceding portions of the work, which have been referred to in the notes below.^ § 571 a. But the liability of passenger carriers for the loss of baggage, being equal to that of common carriers of goods,' sup- poses that the company do not protect themselves as to the baggage of the traveller by some special contract on the sub- ject. Some of the railway companies in England have regula- tions limiting their liabilities in regard to passengers' luggage, the purport of such regulations being, " that the charge made for passengers does not extend to luggage, and that the com- pany will not be answerable- for luggage, unless booked and paid for. Such a regulation (and a carrier has a right to make all reasonable regulations*) may be reasonable where the prac- tice of booking luggage is really carried out, and proper facilities are afforded to the public for complying with it. Railway com- panies, and coach proprietors and other carriers, may refuse to take charge of luggage unless booked and given over to their servants in conformity with the general rules which they have found it necessary to establish for conveniently conducting their business. But the case is different when, as frequently happens, the regulation respecting booking is a dead letter, and the gen- eral practice is to take charge of passengers' luggage without requiring it to be booked. In this case the regulation is nothing but a notice, the legal effect of which is, to s.ay the least, very doubtful,^ and which, if the directors think it advisable to issue, tbey ought to issue as a notice. Issued as a mere notice, such regulation can have no further effect in limiting the company's liability, than that they may refuse .to take charge of passengers' ' Ante, §§ 283 - 294. " Ante, §§ 321 - 327, 432. ' And see the Index, tit. " Baggage." • * Ante, §§ 125, 245, 525, et seq. » Ante, § 238, et seq. 502 LAW OF CARKIEES. [CHAP. XI. luggage, unless such reasonable regulations as they have found it necessary for their convenience to establish are complied with. If they do actually take charge of such luggage, they incur the ordinary responsibility of common carriers.^ But it would appear, that, where the company take care to embody the notice in the tickets delivered 'to every passenger on taking hi^ place, as part of the terms on which they are willing to ac- cept him, this would constitute a special contract on the subject, so that the company would only be liable for negligence.^ § 57-2. [(12.) Their Liability for the Acts of their Servants and 'Agents.~\ We have seen that passenger carriers are not only personally bound for their own acts and omissions in the trans- portation of travellers and their baggage, but also for the mis- conduct and negligence of the agents in their employ.^ (a) A declaration which charges the defen.dant with having negli- gently driven his cart against tlie plaintiff's horse is supported by evidence that the defendant's servant drove the cart.* A charge, that the defendant is the owner of the vehicle, is sup- ' Report of the Officers gf the Railway Department of the Board of Trade, cited in Walford, Sum. of the Law of Railways, p. 326. See ante, §§ 107-117, 238. " See Palmet v. Grand Junction R., 4 M. & W. 752. And see, as to the effect of a special contract, ante, § 225. A railway company may also be entitled to a protection more or less extensive in regard of the luggage of passengers, under the provisions of their own act of incorporation ; as, for instance, where a rail- way act provided that the company should not be responsible for anything taken with him, by a passenger, save articles of clothing of given weight and dimen- sions. Under a provision of the above kind, the company are exempt from all liability, in respect of goods accompanying a passenger, not being articles of clothing of the requisite weight and dimensions ; that is to say, from all liability as carriers ; for the clause pf course is not a license for the company to deal with such articles at their own free will and pleasure. See Elwell v. Grand Junction R., 5 M. & W. 669 ; and ante, §§ 250, 267, el seq. ' And see Philadelphia R. v. Derby, 14 How. 468. ♦ Brucker v. Fromont, 6 T. R. 65a. (a) Moore v. Fitchburg R., 4 Gray, 465. The carrier is liable for the wilful act of his servant if committed in the course of his employment. Philadelphia R. V. Derby, 14 How. 468 ; Weed v. Panama R., 5 Duer, 193 ; Meyer v. Second Avenue R., 8 Bosw. 305. See Crocker «. New London R, 24 Conn. 249 ; Illinois Central R, v. Downey, 18 111. 259; Howe k. Newmarch, 12 Allen, 49; Holmes V. Wakefield, 12 Allen, 580 ; Seymour v. Greenwood, 7 H. & N. 355 ; Limpus v. London Omnibus Co., 1 H. & C. 526 ; Poulton v. London R., Law Rep. 2 Q. B. 634 ; Chapman v. New Yprk R., 33 N. Y. 369. CHAP. XI.J PASSENGER CARRIERS. — WHEN LUBLE FOB AGENTS. 503 ported by evidence that lie holds himself out to the world as the owner of it, by suffering his name to remain printed on it, and over the door of the house of business to which it belongs ; although it is proved, that he had for some days ceased to be the owner of the vehicle, and was not concerned in the business, having relinquished his business to a former partner.^ § 573. If a gervant, without his master's knowledge, takes his master's carriage out of the coach-house, and with it commits an injury, the master is not liable, because he has not, in such case, intrusted the servant with the carriage. But whenever the master has intrusted the servant with the control of the car- riage, it is no answer to say, that the servant acted improperly in the management of it ; but the master, in such case, will be liable, because he has put it in the servant's power to misman- age the carriage by intrusting him with it. Therefore, where a servant, having set his master down in Stamford Street, was directed by him to put up in Castle Street, but instead of so do- ing went to deliver a parcel of his own in another part of Lon- don, and in returning drove the carriage against an old woman •and injured her; it was held, that the master was responsible for his servant's act.^ § 574. It- is laid down by Blackstone, that if a servant by his negligence does any damage, to a strangei;, the master shall' be answerable ; but the damage must be done while he is actually employed in his master's service ; otherwise the servant shall answer for his own misbehavior.^ The question therefore is, in case of an injury done to the person of a passenger, — who em- ployed the person who did the injury?*. Any arrangement, we have seen, made between common carriers of goods and their servants or agents, whereby the latter are exclusively to receive the coilipensation for the conveyance, will not exempt the car- , » Stables v. Eley, 1 Car. & P. 614. ' Sleath V. Wilson, 9 Car. & P. 607. ' 1 Bl. Cora. 431, and see ante, §§ 513, 517. A driver sent by the owner of a carriage is his servant, and unless the hirer causes the driver to go beyond the contract of hiring, he will not be liable for the acts of the driver occasioning in- jury to the carriage or horses. Hughes v. Boyer, 9 Watts, 556. * Milligan v. Wedge, 12 A. & E. 737. Rapson v. Cubitt, 9 M. & W. 710, is an authority to show that the party injured by the negligence of another cannot go beyond the party who did the injury ; unless he can establish that the latter stood in the relation of a servant to the party sued. 604 LAW OF CAEEIEES. [CHAP. XI. riers from responsibility ; unless such arrangement was known by the owner of the goods, and he contracts exclvisively with the servants and agents.^ § 575. There was an important question as to the liabiHty of a master for the acts of his driver, in Laugher v. Pointer,^ in which, there being a difference of opinion on the bench, the case was directed to be argued before the twelve judges. The question was, whether, where the owner of a carriage hired of a' stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to a horse belonging to a third per- son, the owner of the carriage was liable to be sued for such injury .** (o) The owner of the carriage would have been liable ,if ' See ante, §§ 77, 85. = Laugher v. Pointer, 5 B. & C. 547. ' Held by Abbott, C. J., and Littledale J., that the owner of the carriage was not liable to be sued for such injury, Bayley and Holroyd, JJ. dissenting. " The able judgments on both sides have," observes Judge Story, " exhausted the whole learning on the subject, and should, on that account, be attentively studied." Story on Agency, p. 406. They were considered fully by the court in Quarman V. Burnett, 6 M. & W. 499, and the court considered the weight of authority in favoi of the view taken by Abbott, C. J., and by Littledale, J. The question in Quarman v. Burnett, ub. sup., was treated as similar in its circumstances to the one' in Laugher v. Pointer,_u&. sup., and it w^ decided in favor of the defendant. In the Court of Queen's Bench, in Milligan v. Wedge, 12 A. & E. 737, Lord Den- man, C. J., said : " I think we are bound by the late decision in Quarman v. Burnett, which was pronounced after full consideration." The case before the learned judge was this : The buyer of a bullock employed a licensed drover to drive it from Smithfield. By the by-laws of London, no one but a licensed drover could be so employed. The drover employed a boy to drive the bullock (together with others, the property of diiferent persons) to the owner's slaughter house. Mischief was occasioned by the bullock, through the carelessness of the boy ; and it was held, that the owner was not liable for the injury ; the boy not being, in (a) See Hilliard v. Richardson 3 Gray, 349. The ownei-s of a vessel are not liable for damages occasioned by the negligence of stevedores employed for a gross sum by the consignees of the charterers in unloading the cargo. Linton v. Smith, 8 Gray, 147. In Dalyell v. Tyrer, Ellis, B. & E. 899, the lessee of a ferry hired from the defendants, for one day, a steam-tug and crew. The crew were paid by the defendants. Held, that the defendants were liable to a passenger on the ferry- boat for an injury sustained by reason of the negligence of the crew. See Eauch V. Lloyd, 31 Penn. State, 358. Where a contractor engaged in ballasting a railroad left stone so near the road that it rolled upon it, it was held, that the company, was liable for an injury sustained by a passenger in consequence thereof. Vir- ginia R. V. Sanger, 15 Grat. 230. CHAP. XI.] PASSENGER CARKIEKS. — WHEN LIABLE FOE AGENTS. 505 he had at all participated in tlie negligence of the driver, or if the circumstances were such that it could be legally so consid- ered. Thus, in an action against tliree persons for a joint 'tres- pass in killing a horse, by carelessly driving against him in the highway, and it appeared that one of the defendants lent the wagon to the others, and then rode with them by invitation, and after the accident acted as one of the party jointly con- cerned; it was held, that he was equally liable with the others,* and was not to be regarded as a mere passenger .^ § 576. On the principle wliich has already been considered, viz. that a plaintiff suing for negligence must himself be without point of law, his servant. " The true test," said Colerige, J., " is to ascertain the relation between the party charged and the party actually doing the injury. Un- less the relation of master and servant exist between them, the act of one creates no liability in the other. Apply that here. I make no distinction between the Ucensed drover and the boy. Suppose the drover, to have committed the injury himself. The thing done is the driving. The owner makes a contract with the drover that he shall drive the beast, and leaves it under his charge ; and then the driver does the act. The relation, therefore, of master and servant does not exist between them." By Littledale, J. : "I gave my opinion so fully in Laugher v. Pointer, which has since been confirmed by the Court of Exchequer, in Quarman V. Burnett, I need say no more now, than that I retain the opinion." It appears that the liability of ahy one, other than the party committing the wrongfuL act, rests upon the principle qui facit per alium facil per se. In the case of a person riding in his own carriage, with a coachman and horses hired for a day, when the accident complained of took place (as iii Laugher v. Pointer, supra), the livery 'atable-k,eeper alone stood in the relation of master to the wrong-doer. It was he who had selected the coachman, and the fitness of the servant for his employ- .ment was matter of discretion for him. For its exercise he was responsible ; of course, had he deputed the exercise of that discretion to another, he would have been equally responsible. But the proposition is clear, no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another ; and consequently, a third • person entering into a contract with the master, which does not raise the relation of master and servant, cannot thereby be rendered liable. It fell from Littledale, J., in Laugher v. Pointer, that the law does not recognize a several liability, in two principals who are unconnected ; if they are jointly liable, you may sue either, • but you cannot have two separately liable. This doctrine is one of general appli- cation, irrespective of the nature of the employment. The decision in Reedie v. London E., 4 Exch. 244, is an important corollary to both the cases of Laugher ^'Pointer, and Quarman v. Burnett, upon the subject of the liability of a person for injuries occasioned by the negligence of another when employed on his be? half. See Lond. Law Mag. for February, 1850, p. 105, and Law Rep. for April, 1850, pp. 626, 634. See post, § 667. ' Bishop V. Ely, 9 Johns. 294. 506 LAW OF CARRIERS. [CHAP. XL fault, and must not himself have contributed to the injury caused in part by the defendant's negligence, — if several servants are engaged at the same work, and one of them is injured by the fault of negligence in which all participated, the master being absent at the time, the servant injured cannot recover of the master for the injury ; although the act complained of was done under the superintendence of a foreman appointed by the master.^ (a) • § 577. In the above case the negligent act was as much the fault of the plaintiff as of the defendant or his foreman ; but sup- pose the case, that one of the servants employed by a master is injured by the negligent act of another servant in the same em- ployment, and was himself free from all fault, and was, in no sense, a party to the negligence by which he was injured. It was admitted, in 1837, that there had been no precedent in England^ for an action by a servant against his master, for any injury re- ceived by the former in the regular course of the latter's employ- ment. The case in Massachusetts, decided in 1842,^ presented the following case, where two persons were in the service of one raih'oad company, whose business was to employ their trains of cars for the transportation of persons and goods for hire ; and the two servants were eii).ployed for the performance of separate du- ties, but all tending to one and the same purpose, that of a safe and expeditious transmission of the trains; and the question was ' directly raised, whether for damages sustained by one of the per- sons so employed, exclusively by means of the negligence of the other, th^ party injured had a remedy against the common em- ployer. Mr. C. J. Shaw pronounced the action " one of new im- pression in our courts"; and he considered it an argument against such an action, though not a decisive one, that " no such action had before been maintained." The case was this : A rail- road company employed A, who was careful and trusty in his. general character, to tend the switches on their road ; and after he had been long in their service they employed B to run the pas- senger-train of cars on the road, B knowing the employment and. character of A. The company, it was held, were not answerable to B for an injury received by him while running the cars, in con- ' Brown v. Maxwell, 6 Hill, 592. ' Priestley v. Fowler, 3 M. & W. 1. ' Farwell v. Boston E., 4 Met. 49. (a) See Senior v. Ward, 1 Ellis & E. 385. CHAP. XI.] PASSENGER CAERIEES. — WHEN LIABLE FOR AGENTS. 507 sequence of the carelessness of A ia the management of the switches. The learned judge, in giving the opinion of the court, said : That where several persons were employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct , of the others, can give notice of any misconduct, incapacity, or peglect of duty, and leave the service if the common employer will not take such precautions, and employ such agents as the Safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Eegarding the case in this hght, he considered it the ordinary case of one sustaining an in- jury in the course of his own employment, in which he must bear the loss himself. And the learned judge maintained that the re- sponsibility which one is under for the negligence of his servant in the conduct of his business, towards third persons, is founded upon another and distinct principle from that of implied contract, and stands upon its own reasons of policy ; and the game reasons of policy limit this responsibility to the case of strangers, for whose security alone it is established. Like considerations of pol- icy and general expediency also forbid the extension of the prin- ciple, so far as to warrant a servant in maintaining an action against his employers for an indemnity which was not contem- plated in the nature and terms of the employment, and which, if established, would not conduce to the general good. That per- sons are not to be responsible in all cases for the negligence of those employed by them, the learned judge relied lipo'n the decis- ions which have established that underwritei-s cannot excuse themselves from payment of loss by one of the perils insured against, on the ground that thp loss was caused by the negligence or uiiskilfulness of the officers or crew of the vessel, in the per- formance of their various duties, as navigators,^ although they are employed and paid by the owners.^ (a) ' See Copeland a. New England Ins. Co., 2 Met. 440. ' On account of the novelty of the question and of the importance of the "prin- (a) The doctrine of Farwell v. Boston R. has been followed in Hayes v. West- ern E., 3 Cush. 270 ; Durgin v. Munson, 9 Allen, 396." See Seayer v. Boston E., U Gray, 466 ; Snow v. Housatonic B,., 8 Allen, 441 ; Cayzer v. Taylor, 10 Gray, 274. 508 LAW OF CARRIERS. [CHAP. XL § 578. The Supreme Coiart of New York have expressed their approbation of the decision of the case just considered ; (a) and the principle contended for by the learne'd Chief Justice therein, is supported by Murray v. South Carolina Railroad Company,^ and by Priestly v. Fowler, before referred to in the English Court of Exchequer.^ The latter case goes further even than that of ciple involved, we here insert the concluding portion of the learned judge's opin- ion. " In coming to the conclusion that the plaintiff, in the present case, is not entitled to recover, considering it. as in some measure a nice question, we would add a caution against -any hasty conclnsion as to the application of this rule to a case not fully within the same principle. It may be varied and modified by cir- cumstances not appearing in the present case, in which it appears that no wilful wrong or actual negligence was imputed to the corporation, and where suitable means were furnished and suitable persons employed to accomplish the object in view. We are far from intending to say, that there are no implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, the employer would be responsible to an engineer for a loss arising from a defective or ill-constructed steam-engine ; whether this would depend upon an implied warranty of its goodness and sufficiency, or upon Ihe fact of wilful mis- conduct or gross negligence on the part of the employer, if a natural person, or of the superintendent or immediate representative and managing agent, in case of an incorporated company, are questions on which we give no opinion. In the present case, the claim of the plaintiff is not put on the ground that the defend- ants did not furnish a sufficient engine, a proper railroad track, a well-constructed switch, and a person of suitable skill and experience to attend it ; .the gravamen of the complaint is, that that person was chargeable with negligence in not chang- ing the switch, in the particular instance, by means of which the accident oc- curred, by which the plaintiff sustained a severe loss. It ought, perhaps, to be stated, in justice to the person to whom this negligence is imputed, that the fatt is strenuously denied by the defendants, and has not been tried by the jury. By consent of the parties, this fact was assumed without trial, in order to take the opinion of the_ whole court upon the question of law, whether if such was the fact, the defendants, under the circumstances, were liable. Upon this question, supposing the accident to have occurred, and the loss to have been caused by the negligence of the person employed to attend to and change the switch, in his not doing so in the particular case, the court are of opinion that it is a loss for which the defendants are not liable, and that the aiction cannot be maintained." 'Murray v. South Carolina R., 1 McMuUen, 385. " Priestly u.. Fowler, 3 M. & W. 1. (a) Coon V. Syracuse R., 6 Barb. 231, affirmed 1 Seld. 492; Russell v. Hud- son River R., 17 N. Y. 134. Where a railroad company allows another company to ru'n trains over its track, the engineer of the latter is not considered as a fellow-servant of the switch tender of the former, and if the engineer is injured by the negligence of the switch tender, the first company is liable. Smith v. New York R., 19 N. Y. 137. See also Warburton v. Great Western R., Law Rep. 2 Ex. 30 ; Catawissa R. v. Armstrong, 49 Penn. State, 186. CHAP. XI.] PASSENGER CASEIEES; — WHEN LIABLE FOR AGENTS. 609 the case in Massachusetts, inasmuch as it decides that an em- ployer would not bp responsible to his servant for injury arising from an improper condition of the vehicle, with the management of vliich the servant was intrusted. The declaration- in this case stated that the plaintiff was a servant of the defendant; that the defendant had desired and directed the plaintiff, so being his ser- vant, to go with certain goods of the defendant in his, the defend- ant's van, then used by him, and conducted by another of his ser- vants, in carrying goods for hire upon a certain journey ; that the plaintiff, in pursuance of such direction, proceeded and was car- ried |,by the said van wi'th the said goo'ds; and it became the de- fendant's duty to use proper care that the van should be in a proper state of repair, and should not be overloaded ;• neverthe- less, that the defendant did not use proper care that the van should not be overloaded ; in consequence of the neglect of which duty the van broke down, and the plaintiff was thrown on the ground; whereby his thigh was fractured. It was held that the .action was not maintainable. As it was admitted that there was no precedent for the action, the court considered it incumbent upon them to decide the question which was presented upon gen- eral principles ; and, in so doing, they thought they were at lib- erty to look at the consequences of a decision the one way or the other. The consequence of holding the master liable, in their opinion, would be serious in the extreme. If, said the-coiirt, the owner of the carriage was liable to his servant for the sufficiency of tlie carriage, he is responsible for the negligence of his coach- maker, or his harness-maker, or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect' in the carriage, owing to the negli- gence of the coach-maker, or for a defect in the harness arising from the negligence of the harness-maker, or for drunkenness, neglect, or want of skill in the coachman. Nor was there any reason, in the opinion of the court, why the principle should not, if applicable to this class of cases, extend to many others. The master, for example, would be liable to the servant for the negli- gence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer, for sending in a crazy bedstead ; for the negligence of the cook, in not properly cleaning the copper vessels used in the kitchen ; of the butcher,, in supplying the family with meat of a quality injurious to the health ; of the builder, for a de- 510 LAW OP CARRIERS. [CHAP. XI. feet in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins. Tlie inconven- ience, not to say the absurdity, of these consequences, afforded, in the opinion of the court, a sufficient argument against the appli- cation of the principle which was contended for. The servant is not ftound to risk his safety in the service of his master ; and in fact, to allow this sort of action to prevail would be an encouragfr'i ment to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his mastery-to protect him against the misconduct or negligence of others who serve him ; and which diligence and caution are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against his master, for damages could possibly afford.^ (a) . ' In Hutchinson v. York K., 5 Exch. 343, the defendants pleaded that the de- (a). In Gillenwater v. Madison R., 5 Ind. 339, a carpenter employed.to build a bridge for the defendant company was ordered to go in the defendants' cars to a place and assist in loading timbers for the bridge, and while in the cars was ' injured by the fault of those in charge of the train. Held, that the railroad com- pany was liable for the injury, the duties of the plaintiff not being common to, nor in the same department with, those of the servants of the company whose neg- lect was the cause of the injury. See also Fitzpatrick v. New Albany R., 7 Ind. 436 ; Indianapolis R. v. Love, 10 Ind. 654 ; Indianapolis. R. v. Klein, 11 Ind. 38. The rule that a principal is not liable to one servant for the act of another does not apply inhere the principal is himself in fault ; and where a railroad company uses a defective engine, knowing its condition, it is liable to one of its servants injured in consequence of such defect. Keegan v. Western R, 4 Seld. 175. See also Snow v. Housatonic R., 8 Allen, 441 ; Cayzer v. Taylor, 10 Gray, 274. The law may now be considered as well settled, that, where one servant is injured by the negligence of another, " it is immaterial whether he who causes and he who sustains the" injury are or are not engaged in the same or in similar labor, or in positions of equal grade and authority. If they are acting together under one master in carrying out a common object, they are fellow-servants. The master indeed is bound to use ordinary care in providing suitable structures, engmea, tools, and apparatus, and in selecting proper servants, and is liable to other servants in the same employment if they are injured by his own neglect of duty." Per Gray, J., Gilman v. Eastern R., 10 Allen, 236. See also Bartonshill Coal Co. v. Reid, 3 Macq. 272, 287 ; Ormond v. Holland, Ellis, B. & E. 102; Weems v. Mathieson, 4 Macq. 215 ; Tarrant v. Webb, 18 C. ?. 797 ; Clarke v. Holmes, 7 H. & N. 937, 6 lb. 349 ; Wright v. New York R., 28 Barb. 80 ; Moss v. Johnson, 22 111. 633 ; Searle v. Lindsay, 11 C. B. n. s. 429 ; Morgan v. Vale of Neath R., Law Rep. 1 Q. B. 149 ; Tunney v. Midland R., Law Rep. 1 C. R 291 ; Feltham V. England, Law Rep. 2 Q. B. 33 ; Wigraore v. Jay, 5 Exch. 354 ; Ryan v. Cum- berland Valley R., 23 Penn. State, 384 ; Bartonshill Coal Co. v. McGuire, 3 Macq. 300. feHAP. XI.] PASSENGER CAEEIEES. — WHEN LIABLE FOR AGENTS. 511 ' . § 578 a. The plaintiff ■was a guard in tlie service of the defend- ants, a railway company, and his duty was to attach certain car- riages to the engine of a freight train, and to despatch the same within a certain time, so as to avoid collision with a passenger train. In consequence of the plaintiff's not having had another person to assist him, the engine started, threw him upon the rails, and a truck passed over his arm. The plaintiff for three months previously had done the same work without any assistant, and without making any objection. It was held, in an action by the plaintiff against the defendants, for compensation for the injury, that the plaintiff, having voluntarily undertaken the duty, was not entitled to recover.^ \ 579. Although, where a party becomes responsible to the pub- lic by undertaking a public duty, he is liable to an action, and may, like a carrier, be sued in case or assumpsit, even if the in- jury has. arisen from the negligence of his servant or agent ; yet a party who has not been privy to a contract entered into with him can maintain no action upon it. A coach-maker may be liable for a defect in a carriage to- the person to whom he sells it, but he is not liable to a passenger who has received injury in consequence of such defect ; nor to the driver of it who receives an injury in consequence of its being defective ; and as the driver cannot sue ceased was iu their service at the time of his death, and that the accident was caused by the negligence of a fellow-servant. The court, on demurrer, held, that the plea was good, as it constituted a complete answer to the action; by set- ting out that the deceased's death was caused by the negligence of a fellow- servant, and in accordance with the decision in Priestly v. Fowler, and the demuVrer was overruled. But in Ohio there has been, in a case precisely like the case of Farwell v. Boston R., a refusal to apply the principle upon which that and the case of Priestly v. Fowler were decided. Little Miami B.. u. Stevens, 20 Ohio, 415. (a) ' Skipp 1). Eastern Counties R. 9 Exch. 223, 24 Eng. L. &.[.Eq. 396. This case is not like the case of Priestly v. Fowler,, just above considered, and the other cases considered in connection with it. (a) Affirmed in Cleveland R. v. Keary, 3 Ohio, State, 201. In Whaalan v. Mad River R., 8 Ohio, State, 249, the rule is stated to be that the master is not liable to one servant for injuries received from the negligence of a fellow-servant, where no relation of subordination or subjection exists between them, while en- gaged iu the business of their common employer. A person repairing the track and a hand on the engine were held, to be fellow-servants within this rule. The English doctrine has also been repudiated in Scotland. Dixon v. Rankin, 14 Court of Session Cases, 420. 612 LAW OF CARRIERS. [CHAP. XI. •the maker of the coach, -nor the person who employs him to drive it, he is remediless altogether.^ In this case, A contracted with the Postmaster-General to provide a mail-coach to convey mail- bags along a certain line of road ; and B and others also con- tracted to horse the coach along the same line ; and B and his co- contractors hired C to drive the coach. It was held that G could not maintain an action against A for an injury sustained by him while driving the coach, by its breaking down from latent defects in its construction; and the judges were unanimously of this opinion. The opinion of Baron Rolfe was as follows: "Tlie breacli- of the defendant's duty, stated in the declaration, is his omission to keep the carriage in a safe condition ; and when we examine the mode in which that duty is alleged to have arisen, we find a statement that the defendant took upon liimself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condi- tion of the said mail-coach, and during all the time aforesaid it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coacli in a fit, proper, safe, and secure state and condition. The duty, therefore, is shown to have arisen solely from the contract ; and the fallacy consists in the use of that word " duty." If a duty to the Postmaster-General be meant, that is true ; but if a duty to the plaintiff be intended, and in that sense the word is evidently used, there was none. This is one of those unfortunate cases in whicli there certainly has been damnum, but it is damnum absque injuria ; it is no doubt a hard- ship upon the plaintiff to be without a remedy, but by that" con- sideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law." (a) § 579 a. After a railroad company has been incorporated, and an accident has occurred to a passenger on the line in conse- quence of the negligence of a servant of tlie company, neither tlie engine-driver nor the superintendent of the trafiic has implied ' See the opiaion of Lord Abinger, in Winterbottom v. Wright, 10 M. & W. 109. (a) See also Murch v. Concord R., 9 Foster, 9. A raib-oad company which receives on its track the cars of another company, placing them under the control of its agents, an'd drawing them by its locomotive over its own road, assumes to- wards the passengers coming upon its road in such cars the relation of common carriers. Schopman v, Boston R., 9 Cush. 24. CHAP. XI.] PASSENGER CARRIERS. — LIABILITY AS COPARTNERS. 513 authority to contract with medical men to assist the injured per- son. Such authority may only be inferred from the conduct of the directors on former occasions, in recognizing similar contracts made by their officers ; or perhaps from evidence that similar powers were iisually exercised by similar agents of similar com- panies.^ (a) § 580. [(13.) Their Liability as Copartners.^ That one part- ner isliablo in tort for the acts of his copartner, in the prosecution of the copartnersliip business, as well as upon contracts, is well set- tled.^ And, as an action lies against a master for an injury done to another, through the negligence or unskilfulness of his servant, while acting in his employment, so partners are responsible in tlie same way for the conduct of their- servant.* The material qiiestion is, when Is a carrier copartnership constituted ? a ques- tion which is to be of course determined in reference to the well- established principle of law, that whoever participates in the profits of a trade or business, or has a specific interest in the profits themselves, as such, becomes chargeable as a partner with respect to third persons. Individuals become liable as partners to third persons, either by contracting the legal relation of part- ners inter se, or by holding themselves out to the world as part- ners ; and, to speak correctly, these are the only means of incur- ring the liability in question.* The partnership as to third per- sons may arise without the intention of the parties thereto, but by mere operation of law ; but only the actual intention will con- stitute a partnership inter se.^ It seems that a party connected with a partnership, who receives a compensation for his services graduated by the profits of the business, is not a partner as to third persons ; to constitute him such he must liave such an in- terest in the profits as will entitle him to an account, and give him a specific lien or preference in payment over otlier creditors.^ ' Cox V. Midland Counties R., 3 Exch. 268. ^ See opinion of Walworth, Chancellor, in Champion v. Bostwick, 18 "Wend. 175, and also ante, §§ 92 - 95. ' Dwight V. Brewster, 1 Pick. 50. * Gow on Part. 14, 15 ; Collyer on Part. 67, § 78 (3d Am. edit.). ' Collyer on Part. uh. sup. Opinion of Story, J., in Hazard v. Hazard, 1 Story, 371. ' See opinion of Walworth, Chancellor, in Champion v. Bostwick, 18 Wend. 175. (a) Stephenson v. New York R., 2 Dner, 341. 33 514 LAW OF CAEEIEES. [OHAP. XL § 581. The question as to the liability of carrier-partners has arisen in several instances, in England. " In many instances," says Mr. J. Bayley, " one coach proprietor horses a coach for one stage, another for a second, and so on, and in some instances the man who finds the horses finds the coachman also. Shall this take away the liability of all the proprietors ? Shall it be said, if the coach does an injury upon a given stage, that the proprietor who finds the horses and driver for that stage shall alone be an- swerable ? The horses, and driver are found by one to do the work of all; they are employed upon the work, and for the benefit of all ; and therefore, all are responsible."^ In an action on the case to recover damages for breaking the plaintiff's win- dows, in consequence of the negligence of the driver of the defend- ant's wagon, it appeared that the defendant and one Dyson were carriers from London to Gosport, and, by an arrangement between them, Dyson horsed the wagon from London to Farnham, and the defendant from Farnham to Gosport ; and when the injury hap- pened, the wagon was drawn by the horses and driven by the ser- vant of Dyson, with whose employment the defendant had no con- cern ; and the wagon was the property of the defendant. The plaintiff, it was held, was entitled to recover, on the ground that the defendant and Dyson were jointly entitled to the profits ; that the wagon was drawn for the benefit of the defendant as well as Dyson ; and that the driver was legally the servant of the defend- ant, though for some purposes, and as between the parties them- selves, he was the servant of Dyson alohe.^ Where the plaintiff and the defendant were joint proprietory of a stage-coach running from A to B, the former providing horses for one part of the road, and the latter for the other, and the profits of each party were calculated according to the number of miles his horses travelled, and the plaintiff received the fares of the passengers, and gave a weekly account of the receipts and disbursements belonging to the coach of the defendant ; it was held that the plaintiff and de- fendant were partners ; and that, in an action by the former against the latter upon a separate transaction, he could not set off a balance due to him upon such weekly accounts.^ Where the plaintiff agreed with the defendant to convey by horse and cart ' Laugher v. Pointer, 5 B. &. C. 547. ' Waland v. Elkins, 1 Stark. 272. ' Fromont v. Coupland, 9 J. B. Moore, 319. CHAP. XI.] PASSENGER CAEEIEKS. — LIABILITY AS COPARTNEES. 515 the mail between N. and B. at £ 9 a mile per annum, and to pay his proportion of the expenses of the cart, &c. ; the money re- ceived for the carriage of parcels to be divided between the par- ties, and the damage occasioned by loss of parcels, &c., to be borne in equal portions ; it was held that this agreement consti- tuted a partnership, and not a mere measure of wages ; and that, consequently, the plaintiff could not sue the defendant for the Sj 9, as stipulated.^ § 582. An action on the case was tried at the Oneida Circuit in New York, which was brought Eigainst the defendants, as the owners of a stage-coach, for an injury sustained by the wife of the plaintiff in being thrown from a wagon in which she was riding, in consequence of a stage-coach belonging to the defend- ants, through the negligence of the driver thereof, coming in contact with the wagon ; and the defendants pleaded the gen- eral issue. , It appeared on the trial that the defendants ran a line of stage-coaches from Utica to Rochester, and that the route was divided into sections ; a section extending from Utica to Vernon was occupied by one Dodge, one of the defendants ; another section, extending west, was occupied by one Ewers and others ; and the remainder of the route by Champion and Bis- sell. The business was conducted, and the proceeds of the con- cern were divided, thus : The occupants of each section provided their own carriages and horses, employed their own drivers, and paid the expenses of their separate sections of the route, except the tolls at turnpike gates ; and the moneys received as the faro of passengers, after deducting such tolls, were divided among the occupants of the several sections, in proportion to the num- ber of miles of the route run by each. The injury in question (Occurred on the- section of the route occupied by Dodge, the «tage-coach which was driven against the wagon was owned by him, and the driver of it was employed by him. The judge charged the jury, that, upon these facts, the defendants must be considered partners, and that they were all responsible for any injury occasioned by the negligence of either of the drivers of the coaches on either section of the route, as each driver was the servant of all the individuals connected in the business ; that the fact, that the occupants of each section employed their own drivers and paid the expenses of their own section, did not dis- > Green v. Beesly, 2 Bing. N. C. 108. 616 LAW OF CARRIEKS. [CHAP. XI. charge them from liability ; that a right to a division of the fare received from passengers, after paying the tolls, in proportion to the distance run by the occupants of the respective sections, was an interest in the profits, constituting them partners, and rendering them liable in the action against them. The defend- ants, on a bill of exceptions to this charge, moved for a new trial, which in the Supreme Court was denied. Nelson, J., in giving the opinion of the court, said : " Each sharing in the profits of the whole route, and of course of each section of it, it is not only just, but in acCorcJance with well-settled principles of law, to hold all responsible for the faithful discharge of their duty ; and to respond in damages for any injury which happens from the negligence or unskilfulness of any of the proprietors or their servants. It is just to the public and to tliemselves. The former have a right to claim the responsibility of all who profit directly by their patronage ; and, as to the latter, the loss should be borne by all. The drivers themselves are generally irrespon- sible men, and so frequently are single proprietors. The public safety and convenience will depend essentially upon the appli- cation of the rule of joint responsibility of all the proprietors, who will then see to it that all their copartners, and all who are employed in the concern, are trustworthy." The judgment was affirmed by the Court of Errors.^ § 583. A line of stage-coaches, in Massachusetts, was run by two persons from Barre, through Holden, to "Worcestei^, and back ; and it was agreed that one of them should furnish and maintain horses and coaches, and receive the money paid for the transportation of passengers between Holden and Worces- ter^ and that the other should do the like beween Holden and Barre. They employed a man to drive all the way from Barre to Worcester and back, at a certain sum per month and perqui- sites ; and money was delivered by the plaintiff to this driver to carry from Barre to Worcester, but the driver absconded with- out delivering it. It was held, that the driver was the servant of the two persons jointly, and that they were jointly liable to the plaintiff for the money. The court, in giving their opinion, said : " If the driver was the servant of one of the defendants at one end of the line, and of the other at the other, there were two contracts; and this brings us to the general question, whether ' Bostwick V. Champion, H Wend. 671, 18 lb. 175. CHAP. XI.] PASSENGER CARRIERS. — LIABILITY AS COPARTNERS. 517 the defendants were so connected as to be jointly liable for his acts. It is not easy to decide whether they were interested in the whole line, or each at one end only. It should seem in the outset that there was bnt one enterprise, nainely, to run a line of stage-coaches from Barro and Worcester and back. The contract between the defendants was not a stipulation that one would run coaches one part of the way, if the other would the other part ; but it seems to have been a joint undertaking, and the advertisement was of a stage-coach running from Worcester and Barre and back. Bach of the defendants was at the ex- pense of supporting the line at one end of the route ; and if the arrangement had been to divide tlie profits equally or propor- tionably, there would have been a partnership beyond any doubt. Does it make a difference that they divided the profits according as they were earned at each end ? The question is not without difficulty, but on the whole we think they must be considered so far jointly concerned as to be jointly liable for the driver's act in this particular instance. They jointly hired him, and for a joint object ; and the well-managing of the business at one end of the line was of importance to the other." ^ § 584. A, B , and C and D and E agreed to run a line of stage- coaches from Albany to Utica ; each of the three parties was to run a separate portion of the road, and to furnish his own horses and carriages, at his own expense and risk ; but extra expenses for extra carriages were to be paid jointly. A, B, and D met, and the accounts between the parties were examined and adjusted, when there was found a balance due from D and E to B and C, for moneys received at Albany. It appearing that D and E, being jointly concerned in running their past of the line, and being generally understood to be partners, B was held to be jointly chargeable for the money received by D, and for his acts ; and that an action for money had and received would lie against D and B to recover the balance so found to be due ; and there was no such partnership existing between the five persons concerned as would prevent such a suit. The articles of agreement existing between all the five persons con- cerned in running the stage did not at all interfere with the suit. The parties had agreed with each other to run a stage from Albany to Utica, but with distinct and separate interests and rights ; and each party had his distinct share of the road.^ ' Cobb V. Abbott, 14 Pick. 289. ' Wetmore v. Baker, 9 Johns. 307. 518 LAW OF CAREIEES. [CHAP. XI. § 585. The facts that several persons associate together to run a line of stage-coaches, that they have a general meeting, and that debts are contracted on account of the association by only some of the members of it, are not sufficient to prove a partner- ship.^ And the fact that several persons actually subscribe an agreement to pay money for the purpose of establishing a line of stage-coaches, — the instrument containing a stipulation that no subscriber should be liable to pay if he chose to abandon his share, and that a refusal to pay should operate as an abandon- ment of his share, — does not constitute a partnership ; and there^ fore the subscribers who refuse to pay cannot be charged as partners by those who have paid more than their proportion. In fact, it is difficult to imagine a contract to be more cautiously framed to avoid a partnership than this.^ If a partnership actu- ally formed for the purpose of running stage-coaches issue to its members certificates of their shares in the joint stock, con- taining a provision that the shares shall not be transferred with- out the consent of the directors, the person to whom a share has been assigned without such consent cannot allege himself to be a partner, and compel the company to account. It is in- deed settled, as a general principle, that a copartnership cannot be compelled to receive a stranger into their league, as it is founded in personal confidence.* Still, if it appears from the course of business that a special provision, like the one men- tioned, has by express or tacit consent been disregarded, as- signments and transfers will be held valid, as regards creditors, although not made in compliance with it.* § 586. Carriers are sometimes engaged in the transportation of what are called " consignee passengers," that is, passengers who are to be carried to a certain terminus, and then to be delivered to other carriers. There were certain persons engaged as such carriers between the city of New York, and various places at the West, by the way of the Hudson River, and the canals and lakes, who entered into an arrangement with other carriers, by which it was mutually agreed, that the former should deliver up their freight and passengers to the latter at Albany, ' Chandler v. Brainard, 14 Pick. 285. ' Clark V. Keed, 11 Pick. 446. ° Kingman v. Spurr, 7 Pick. 284. * Kainhard v. Hovey, 13 Ohio, 300. CHAP. XI.] PASSENGER CARRIERS. — LIABILITY AS COPARTNERS. 519 and their -down freight at Schenectady, the termini of the rail- road; and that the latter should transport the freight and pas- sengers over their road. The contract in respect to the price for transportation, made between the owners of the goods and the party of the first part, was to govern the compensation of the party of the second part, and they were to be paid in the propor- tion that thirty miles bore to the whole distance the goods " were transported on the canal " ; or rather in proportion that thirty miles bore to the whole distance the goods would have been transported on the canal, had the party of the first part run their boats between Albany and Schenectady, instead of employing the party of the second part to carry between those places. The party of the second part brought an action of assumpsit to recover of the party of the first part for the transportation of freight and consignee passengers over their railroad for the party of the first part in the year 1839 ; and the defence was, that the plaintiff's and defendant's were partners in the transac- tion in question, and consequently, without a balance struck and promise of payment, the plaintiffs could not sue at law. Bronson, J., who delivered the opinion of the court, was unable to see that this made out a partnership between the parties, there being no community of interest, or division of profits of a joint concern between the parties. He said : " The contracts for transportation were all made between the defendants and the owners of the goods. The plaintiffs had no concern, either for profit or loss, with the river, canal, or lake transportation. There was no general account of profit' and loss upon the whole busi- ness to be adjusted between the parties. One party might make a profit by the business, while it proved ruinous to the other.. In short, the case comes to this: The defendants, having under- taken to perform work and labor for third persons, employ the railroad company to do a part of the work for them, agreeing that'they will pay the company for its services the same price in proportion to distance which the defendants themselves are to receive. I do not see how this makes out a partnership, either as between the parties themselves, or in relation to third per- sons." One fact in the case was stated by the learned judge to be, that the company was to furnish " warehouse facilities," and pay a portion of the expense of offices at each end of the road. 520 LAW OF CARRIERS. [CHAP. XI. But this, in his opinion, did not alter the nature of the con- tract.i § 687. A ship-master having agreed to take the defendant's vessel for the purpose of obtaining employment in the ft-eighting business, engaged to victual her and man her, and pay half of all charges, pilotage, &c, and the defendant engaged to pay the other half, together with eight dollars per month for one man's wages, and to put the vesseLin sufficient order for business; and all money so stocked in the vessel, whether for freight or passage or whatever, was to be equally divided between the master and the defendant, each party accounting for the above ; it was held, that the master was owner pro hac vice; that the contract did not make him and the defendant partners; and that the defendant was not answerable to a shipper of goods which had not been delivered according to the bill of lading.^ Indeed a partnership, between the defendant and the ship- master in the employment and earnings of the vessel, could not be predicated on the above facts, any more than in all the cases in which the charter of a vessel was agreed to be paid by a por- tion of the earnings. § 588. Ferrymen, we have seen, are common carriers,^ and the ' Mohawk R. v. Niles, 3 Hill, 162. A, B, and C were common carriers from L. to F., a separate portion of the road being allotted to each ; and it having been stipulated, also, that no partnership should exist between them. A for himself, and the other parties, agreed with the Mint to carry coin from L. to F., and after- wards makes another agreement with the Mint to carry other coin to places on the road. It was held, that the parties were entitled to share in the "profits of this agreement. Kussell v. Anstwick, 1 Sim. Ch. 54. In Massachusetts it is pro- vided by statute, that, when railroads unite, the corporations may contract with each other as to transportation. Any railroad corporation, already, or which may bo, created in that State, and any other adjoining State, is authorized to contract with any other railroad corporation created as aforesaid, whose road enters upon or is connected with the road of the corporation so contracting, to do and per- form all the transportation of persons and freight, upon and over said railroad, upon such terms and conditions as may be mutually agreed by the parties. Act of 1838, c. 99, § 1, p. 70. (a) ' Cutler V. Winsor, 6 Pick. 335. See Boardman v. Keeler, 2 Vt. 65 ; Harding V. Foxcroft, 6 Greenl. 76. The master and crew of a ship engaged in a whaling voyage, who are to receive, in lieu of wages, a proportion of the net proceeds of the oil which shall be obtained, are not partners with the owners of the ship. Baxter v. Rodman, 3 Pick. 435. » Ante, §§ 82, ISO. (a) See Gen. Stats. Mass. 1860, c. 63, § 116. CHAP. XI.] PASSENGER CARRIERS. — ACTIONS AGAINST. 521 question may sometimes arise whether the owner of a ferry is solely liable for losses and injuries from negligence in the manage- ment of the ferry, or whether he is liable in connection with an- other person with whom he has made arrangements in respect to the management or use of the ferry. B., the owner of a ferry, leased it to P. for two years, in consideration of $ 1,000 paid him by F. in cash ; and it was agreed between the parties, that, if the net profits of the ferry did not yield P. $ 2,000 within two years, P. should hold over the term until the profits did yield that sum. It was further stipulated, that, if the profits gave more than $ 2,000 within the two years, the surplus should be equally divided be- tween them. It was held, upon these facts, that the agreement did not constitute a partnership in the ferry between B. and P. ; and that B. was not liable for losses, by negligence at the ferry, during the the term of P.'s tenancy thereof.^ § 589. Several persons acting in connection as passenger car- riers may, as among themselves, by the terms of their agreement in relation to one another, not be partners ; and they may thus be liable to each other the same as if their interests were several. But this private arrangement can in no way vary the rights of third persons or the public, legally flowing from the general ar- rangement, under which they hold themselves out as jointly inter- ested, and by which they participate in the profits of the concern. They would be still liable for an injury received by a passenger through the negligence of their driver.^ § 590. [(14.) Actions against.'] In considering the different duties of passenger carriers, the first which received our attention was their duty to receive all persons as passengers who offer to become such. This duty results from their setting themselves up, like common carriers of goods and merchandise, for a public and common employment for hire ; and a breach of it is a breach of the law for which an action lies.^ The Bule is, that if no place be taken in the vehicle, and the carrier refuses to carry a person, with his baggage, who offers himself as a passenger, provided he has room, and the person so offering conforms to the reasonable regulations of the carrier, the declaration should be in case. The ' Bowyer v. Anderson, 2 Leigh, 550 ; and see ante, § 147. ° See opinion of Nelson, J., in Bostwick v. Champion, 11 Wend. 572. • See the subject fully considered, ante, §§ 524 - 531. 522 LAW 0¥ CARRIERS. [CHAP. XI. action was case in New Hampshire,^ and the declaration alleged, that the defendant was part owner and driver of a public stage- coach from Nashua to Amherst and Prancestown ; that on the 31st of January, 1837, the plaintiff applied to him to be received into his coach, at Nashua, and to be conveyed from thence to Am- herst, offering to pay the customary fare ; and that the defendant, although there was room in the coach, refused to receive the plain- tiff. It is clearly necessary that it should be averred in the dec- laration that the plaintiff was willing and ready to pay the defend- ant the amount which the defendant was legally entitled to receive for the receipt and carriage of the plaintiff and his baggage; though it is not necessary that he should make an absolute tender ; and the general allegations in the declaration would be similar to those of the declaration in an action against a common carrier of goods, for refusing to receive and carry them.^ § 591. A passenger in a public conveyance, who receives an in- jury while travelling in consequence of the negligence or miscon- duct of the proprietor or of his driver or servant, may at his elec-, tion sue tlie proprietor in assumpsit on the implied contract for a safe conveyance, or in case as for the tort.^ And, as in the instance of carriers of goods and merchandise, if the plaintiff adopts the former form of action to entitle him to recover, he must prove the liability of all the parties sued ; * but if he adopts the latter, he may recover against any of the defendants who are liable.^ And in an action on tlie case against ten defendants as the proprietors of a coach, for injuries^ sustained by the plaintiff, a passenger, in con- sequence of negligence in driving, the jury found a verdict against eight of the defendants, and in favor of the other two ; and judg- ment was entered accordingly.^ On the other hand, if a declara- tion be even framed in case, yet if it be founded on contract, judgment cannot be given for some defendants and against oth- ers. Such was the case in Connecticut,'^ where the defendants ' Bennett v. Button, 10 N. H. 481. The action was case in Jencks v. Cole- man, 2 Sumn. 221. ' For the form of the declaration for refusing to receive goods, see ante, § 418, and that if an offer to pay is proved, it need not amount to what is strictly a legal tender. Ibid. » Knight V. Quarles, 2 Brod..& B. 102. « Ante, § 422, et seq. ' M'Call V. Forsyth, 4 Watts & S. 179 ; ante, § 435, et seq. • Bretherton v. Wood, 3 Brod. & B. 54. ' Walcott V. Canfield, 3 Conn. 194, and cited more fully, ante, § 438. CHAP. XI.J PASSENGER CAERIEES. — ACTIONS AGAINST. 623 were the proprietors of a line of stage-coaches, and were sued for not performing their undertaking, in form in case ; but the suit being in substance on the contract, the court held that the plain- tiff must, in every essential particular, prove the contract as he had alleged it.^ § 592. The plaintiff can recover only on the grounds stated in his declaration ; and hence, in an action by a passenger for an injury done to him by the overturning of a stage-coach, if the declaration states that the servants of the defendant negligently " drove, conducted, and managed the coach," the plaintiff cannot recover if the negligence was in sending out an insufficient coach.^ So, if the declaration charges the injury to the passenger to the want of skill and care of the driver, and not to any deficiency in the coach, harness, or horses, proof that the lines were broken can give no right of recovery to the plaintiff.^ ■ ' But, on the subject of misjoinder and nonjoinder of parties in actions on the caae, and in actions of assumpsit, and as to the distinctive character of the dec- laration, whether it be in law, in case, or assumpsit, and as to the pleadings, evi- dence, &c., in the same, we refer the reader to the preceding Chapter X. ° Per Littledale, J., Mayor v. Humphries, 1 Car. & P. 251. ' McKinney v. Mel, 1 McLean, C. C. 540. Mr. Greenleaf (2 Greenl. Ev. § 222) conceives the following count in assumpsit against a passenger carrier for bad management of a sufficient coach, would be good. " For that the said (de- fendant) on was the proprietor of a coach for the carriage of passengers with their luggage between and for hire and reward; and thereupon, on the same day, in consideration that the plaintiff, at the request of the said (defendant,) would engage and take a seat and place .in said coach, to be con- veyed therein from said to for a reasonable hire and reward to be paid to him by the plaintiff, the said (defendant) undertook and promised the plaintiff to carry and convey him in said coach, from to , with all due care, dili- gence, and skill. (*) And the plaintiff avers that, confiding in the said undertak- ing, he thereupon engaged and took a seat in said coach, and became a passenger therein, to be conveyed as aforesaid, for such hire and reward to be paid by him to the said (defendant). But the said (defendant) did not use due care, diligence, and skill in carrying and conveying the plaintiff as aforesaid ; but on the con- trary so overloaded, and so negligently and unskilfully conducted, drove, and managed said coach, that it was overturned ; by means whereof the plaintiff was grievously bruised and hurt {here state any other special injuries'], and was sick and disabled for a long time, and was put to great expense for nursing, medicines, and medical aid." If the injury arose from insufficiency in the coach, or horses, insert at (*) as fol- lows : " and that the said coach was sufficiently stanch and strong, and that the horses drawing the same were and should be well broken and manageable, and of competent strength"; and assign the breach accordingly. See ante, §435, n. 3. 624 LAW OF CAEEIEES. [CHAP. XI. § 593. One of the reasons, as there has before been occasion to state, why the remedy by the action of assumpsit against common carriers of goods is preferable to that of an action on the case, is, that it survives against the executor or administrator.^ The prin- ciple laid down by Lord Mansfield ^ is, that " where the cause of action is money due on a contract to be performed, gain or acqui- sition to the testator, by the work and labor or property of another, or a promise by the testator express or implied ; wh§n these are causes of action, the action survives against the executor." The distinction clearly is between causes of action which affect the estate, and those which affect the person only ; the former survive for or against the executor or administrator, and the latter die with the person.^ The general rule of law is actio personalis mo- ritur cum persond, — a personal right of action dies with the per- son ; under which rule are included all actions for injuries merely personal. Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the de- ceased, but not of their wrongs, except where those wrongs oper- ate to the temporal injury of their personal estate. But in that case the special damage must be stated on the record, inasmuch as the court cannot intend it. Damage subsisting in the mere personal suffering of the testator, and all injuries affecting his life or health, are undoubtedly breaches of the implied promise by tlie persons employed to exhibit a proper portion of care and skill ; but there seems to be no authority to sustain any attempt on the part of an executor or administrator to maintain an action in such case.* An administrator cannot have an action for breach of proniise of marriage to the intestate^ where no special damage is alleged.^ Neither will an action for a breach of promise of mar- riage, where no special damage is alleged, survive against the ad- ministrator or executor of the promisor.^ § 694. But where the damage done to the personal estate of the testator or intestate, or to the estate of another by the testator > Ante, § 435. = Hambly w.Trott, Cowp. 372. ' Per Wilde, J., in Stebbins v. Palmer, 1 Pick. 71 ; Orme v. Broughton, 10 Bing. 533 ; Grace v. Grace, 2 M. & W. 190. * See the judgment of Lord EUenborough, in Chamberlain v. Williamson, 2 , Maule & S. 408. ' Chamberlain, &c., ub. sup. ' Stebbins v. Palmer, 1 Pick. 71. CHAP. XI. j PASSENGER CAERIEES. — ACTIONS AGAINST. 525 or intestate, in his lifetime, can be stated on the record, that in- volves a case different from the two cases just above stated. A plaintiff, as administrator, declared that his intestate employed the defendant as his attorney to investigate tlie title to certain premi- ses which the intestate had contracted to purchase, and that the defendant undertook to do so, and assigned, as a breach of the de- fendant's promise, that he caused the intestate to accept a defec- tive title, whereby the latter was wholly unable to dispose of the premises in question during his life ; and the count then went on to allege special damage to the deceased's personal estate. To this declaration there was a demurrer on the part of the defend- ant, in support of which it was attempted to be argued, that the action, though in form ex contractu, was in substance ex delicto^ the breach of promise being no more than a tort arising out of a neglect of duty. The court were, however, unanimous in their opinion that there was no ground for the demurrer, an express promise being alleged, a breach of it in the lifetime of the testa- tor, and an injury to his personal property ; the truth of which allegation was admitted by the demurrer ; that it made no differ- ence in the case whether the promise was express or implied, the whole transaction resting in contract ; that though perhaps the intestate might have brought case or assumpsit at his election, assumpsit being the only remedy for the administrator, it was necessary that the action should be maintained, or the defendant might escape out of the consequences of his misconduct, and the intestate's estate suffer an irreparable injury. It was further ob- served by the court, that, if a man contracted for a safe conveyance by a coach, and sustained an injury by a fall, by which his means of improving his personal property were destroyed, and tliat prop- erty in consequence injured, though it was clear that in his life- time he might, at his election, sue the coach proprietor in tort or in contract, it could not be doubted that his executor might sue in assumpsit for the consequence of the coach proprietor's breach of contract.^ § 594 a. The act of the State of New Yorlf, of December 13, 1847, providing for compensation for wrongful act, neglect, or de- fault, limits the damages to be recovered to a just and fair compen- sation with respect to the pecuniary injury resulting to the wife ' See ante, §§ 436 - 440. » Knight V. Quarles, 2 Brod. & B. 102. 526 LAW OF CAREIEES. [CHAP. XI. and next of kin ef the deceased ; if there is no mfe and next of kin of the deceased, tliere can be ho such pecuniary damage to be recovered as the act contemplates.^ § 595. It would seem rather clear from the above authorities, than an injury which affects the health or life of deceased persons, and which was occasioned by the negligence or unskilfulness of a passenger carrier, although it is a breach of the implied promise by such carrier to exhibit a proper degree of care and skill, and, if stated and proved to be detrimental to the estate of the deceased, is the subject of an action by his executor ; yet, as importing a mere personal injury, it is not actionable save by the testator him- self. And so of a suit against an executor of the party commit- ting the injury, or of the promisor ; if no special damage to the estate of the person injured is alleged and proved, an action does not survive.^ § 596. The question then arises, — what shall be considered a damage to the estate of a person, in cases like the above men- tioned ? In a case in New York,^ the declaration charged, that by the negligence of the defendant in driving a gig, a son of the plain- tiff, of the age of about ten years, was run over and killed ; and it was alleged in one of the counts, by way of special damage, that in consequence of the occurrence, the wife of the plaintiff became sick, and remained so for a long time, and that the plaintiff was not only deprived of her society, but was subjected to great ex- pense in attendance upon her, and in effecting her recovery. Dam- age was also alleged in another of the counts, as the loss of the service of the child for a period of ten years and upwards. The happening of the accident and the sickness of tlie plaintiff's wife as alleged were proved. The judge instructed the jury, that the only question in the case was, whether the servant had been guilty of negligence ; that if they should find that he was so ' Lucas u. New York R., 21 Barb. 245. ' The personal representatives are liable, as far as they have assets, in all the contracts of the deceased broken in his lifetime ; and likewise upon such as are broken after his death, for the due performance of which skill or taste was not required. Per Parke, B., Siboni v. Kirkman, 1 M. & W. 423. And see Com. Dig. " Administration," (B). But at Common Law no action founded in tort, and in which the plea was " not guilty," is held to survive against the executor or administrator of the tort feasor. See note to Little v. Conant, 2 Pick. 527 (edit 1848). ' Ford V. Monroe, 20 Wend. 210. CHAP. XI.] PASSENGER CAREIEBS. — ACTIONS AGAINST. 52T chargeable, then the plaintiff ■would be entitled to recover such sum by way of damages as they should be of opinion the service of the child would have been worth to him until he became twenty-one years of age, and also that he was entitled to recover damages occasioned by his wife's sickness, consequent upon the accident. Upon the finding of a verdict for the plaintiff for two hundred dollars, and upon a motion for a new trial, the court, by Nelson, 0. J., said : " The damages were specially laid in the dec- laration, and were clearly proved to have been the direct conse- quence of the principal act complained of; they therefore came within the well-settled rule respecting special damage." § 597. So far as regards the deprivation of the society of the wife, which was alleged in the declaration in the above case, by way of special damage, it does not appear, in the opinion given by the court, whether they did or did not consider that by itself a sufiBcient ground for the plaintiff's recovery. In an action in another case against the proprietors of a stage-coach, on the top of which the plaintiff and his wife were travelling,^when it was overturned ; whereby the plaintiff himself was much bruised, and his wife was so severely hurt, that she died about a month after in a hospital ; the declaration, besides other special damage, stated, that " by means of the premises, the plaintiff had wholly lost, and been deprived of, the comfort, fellowship, and assistance of his ' said wife, and had from thence hitherto suffered and undergone great vexation and anguish of mind." It appeared that the plain- tiff was much attached to his deceased wife, and that he, being a publican, had lost the. use of her in conducting his business. Lord Ellenborough held, that the jury could only take into con- sideration the bruise which the plaintiff had himself received, and the loss of his wife's society, and the distress of mind he had suf- fered on her account, from the time of the accident till the moment of her dissolution. The damage, in other words, as to the plain- tiff's wife, must stop with the period of her existence.^ § 598. Another ground of special damage, alleged in the above case of Ford v. Monroe, was for the loss of service of the child who was killed, when at the age of about ten years, and the jury ' ' Baker v. Bolton, 1 Camp. 493. If an action is brought for an injury sus- tained by the wife (and not by the husband), the damages are to be given accord- ingly. . The husband must be joined in the action, but the damages are to be given for the injury sustained by her. 528 LAW OF CARRIERS. [CHAP. XI. were instructed that the plaintiff was entitled to such sum, by way of damages, as they thought the service of the child would have been worth if he had arrived at twenty-one years of age. But how, it may be inquired, were the jury authorized to suppose that the child would have arrived at the latter age, if he had not been killed in the manner he was ? A similar interrogatory may to another case be applied : In an action by an administrator to recover damages for the loss of life of his intestate, the court may instruct the jury to compute the damages by the probable accumulations of a man of the age, habits, health, and pursuits of the deceased during what would have probably been his lifetime.^ In this respect the cliarge appears somewhat at va- riance with the view taken of the law by the court, in respect of damage by loss of service.^ The action in that case was trespass for driving a carriage against the plaintiff's son and servant, whereby the plaintiff was deprived of his son's services as servant, and was put to expense in obtaining his cure. The child was two years and a half old, and the plaintiff might have placed him in a hospital, which would not have occasioned any expense, but he preferred having him at home ; and hence it was held, that the loss of service was the gist of the action, and that the child being incapable of performing any service by reason of his tender age, the action was not maintainable, particularly as no expense had been necessarily incurred. " I apprehend," said Bayley, J., " that the gist of the action depends upon the capacity of the child to perform acts of service. Here it is manifest tliat the child was incapable of performing any' service : the authorities upon this point are all one way. In the cases which have been cited, the child being capable of performing acts of service, and living with the parent, would naturally be called upon to perform some acts of service ; and it was therefore held, that service might be pre- sumed, and that evidence of it need not be given." By Hol- royd, J. : " The mere relationship of the parties is not sufficient to constitute a loss of service : and the reasoning in all the modern cases shows that some evidence of service is necessary." Abbott, C. J. said, that the court were called upon to go further than the principle of the Common Law, that the master may maintain an action fpr a loss of service, sustained by the tortious acts of an- ^ Pennsylvania R. v. McCIoskey, 23 Penn. State, 526. « Hall V. Hollander, 4 B. & C. 660. CHAP. XL] PASSENGER CARRIERS. — ACTIONS AGAINST. 529 other, whether the servant be a child or not ; and they were asked to hold that the action was maintainable, although no service waff or could be performed by the child ; and that too, upon a declara- tion alleging the existence of the relation of master and servant, and the loss of the services by such servant. " Such a decision," said he, " could not be warranted by any former case." § 599. An action on the case,^ before Bosanquet, J., shows re- covery of damages for an injury committed by a collision on a highway to the plaintiff's son and servant, but the age of the son is not stated. In Maine,^ it was held, that the father of a minor daughter, eighteen years old, might maintain an action against an imdividual, to recover damages sustained by the plaintiff in the loss of the services of the daughter, by an injury consequent upon a collision between the defendant's wagon, by his negligence, and the wagon in which the daughter was riding. The court, in giving their opinion in this case, are particular in distinguishing; it from Hall v. Hollander, in which the child was too young to perform any service. The court also held, that evidence of the complaints of suffering made by the daughter of tlie plain- tiff, after receiving the injury, but during the time when it was material to prove such suffering to have existed was admis- sible. § 600. In a civil court, the death merely of a human being can- not, at Common Law, be complained of as an injury, and, as in tlie above case of Baker v. Bolton,^ it was held, damage must stop at the moment of death. Such has been regarded by the Su- preme Court of Massachusetts as the doctrine of the Common Law,* in which that court held that an action on the case could not be maintained by a widow to recover damages for the loss of her husband, or by a father for the loss of his child, in conse- quence of the death of the husband or child, occasioned by the carelessness or fault of the agents or servants of a railroad corpora- tion. In delivering the opinion of the court in these cases, Met- calf, J. observed : " If these actions, or either of *them, can be maintained, it mu^t be iipon some established principle of the i' ' Williams v. Holland, 6 Car. & P. 23. * Kennard v. Burton, 12 Maine, 39. ' Baker v. Bolton, ante, § 579. See 2 Cro. Eliz. 55 ; lb. 770 ; Wheatly v. Lane,. 1 Wms. Saund. 216, n. (1). See Lucas w. New York R. 21 Barb. 245. * Carey v. Berkshire R., 1 Cush. 475. 34 530 LAW OF CAEEIEES. [CHAP. XI. Common Law ; and we might expect to find that principle applied in some adjudged case in the English books ; as occasions for its application must have arisen in very many instances. At the least, we might expect to find the principle stated in some element- ary treatise of approved authority. No such case was cited by counsel ;',and we cannot find any. This is very strong evidence, though not conclusive, that such actions cannot be supported. But it is not necessary to Tely entirely on this negative evidence. For we find it adjudged,' that the death of a human being is not the ground of an action for damages." ^ (a) § 600 a. The law so remained in England until a very late pe- riod, and was so prior to the statute 9 & 10 Vict. fc. 93. By sec- tion 1 of that act, it is enacted, that " whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not en- sued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to fel- ony." By section 2, it is further enacted, " that every such action shall be for the benefit of the wife, husband, parent, and child (6) of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased ; and in every such action the jury may give such damages as they may think proportioned to the injury re- ' Baker v. Bolton, 1 Camp. 493. (a) See also Lyons v. Woodward, 49 Maine, 29 ; Palfrey v. Portland E., 4 Al- len, 55 ; Hubgh v. New Orleans R., 6 La. Ann. 495 ; Eden v. Lexington R., 14 B. Mon. 204 ; Worley v. Cincinnati R., 1 Handy, 481 ; Connecticut Ins. Co. v. New York E., 25 Conn. 265. By a statute in Massachusetts (act of 1842, c. 89), trespass on the case for damage to the person, survives, so that in the event of any person entitled to bring such action, the same may be prosecuted by his ad- ministrator. Under this it has been held, that if the death is instantaneous the action does not survive. Kearney v. Boston R., 9 Cush. 108. If the person lives after the accident, though in a state of insensibility, the right of action sur- vives. Hollenbeck v. Berkshire R., 9 Cush. 478 ; Bancroft v. Boston R., 11 Al- len, 84. See Gen. Stats. Mass. c. 127, § 1. (J) A bastard is not a child within the meaning of this section. Dickinson v. North Eastern R., 2 H. & C. 735. CHAP. XI.] PASSENGER CAREIEES. — ACTIONS AGAINST. 631 suiting from such death to the parties respectively, for -whose benefit such action shall be brought ; and the amount so recov- ered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct." By section 3, the action for damages must be brought within twelve calendar months after the death of such deceased person. It will be observed that this statute applies only where death ensues from the particular wrongful act, and does not, therefore, aifect the class of cases where a tort is committed which does not occasion death.i This statute seems to have revived the principle of the old Saxon law, and to allow the relations of the deceased to re- cover damages to be apportioned among them- according to the injury resulting to them respectively .^ In a case involving the construction of this statute, the question was, whether the jury, in giving damages apportioned to the injury resulting from the death of the deceased, to the parties for whose benefit the action was brought, were confined to injuries of which a, pecuniary esti- mate may be made, or may add a solatium to those parties in re- spect of the mental suffering occasioned by such death ; and it was held by the Court of Queen's Bench, that the latter could not be taken into consideration.^ (a) § 601. An act has been passed by the legislature of Massachu- setts on the same subject, but very different in its provisions from the one above given ; and materially different, in so far as respects the provision in the English act for determining the damages by ' For a tort committed to the person, it is clear that, at Common Law, no action can be maintained against the personal representatives of the tort-feasor, nor does it seem that the above statute, 9 and 10 Vict. c. 93, supplies any remedy agamst executors or administrators of the party who, by his " wrongful act, neg- lect, or default," has caused the death of another. Broom's Legal Maxims,- 710. For the application of the doctrine, under the statute, of Priestly v. Fowler (ante, § 578), see Keedie v. London K., 4 Exch. 244 ; and for the doctrine applied under it, to cases of mutual negligence (ante, § 556., et seq.). See Armsworth v. South Eastern K., 11 Jur. 758. ' See the learned oginiou of Lowrie, J., in Pennsylvania K. v. McCloskey, 23 Penn. State, 526. ' Blake v. Midland.K., 18 Q. B. 93, 10 Eng. L. & Eq. 437. (a) For other cases under this statute see Franklin v. South Eastern E., 3 H. &N. 211; Dalton v. South Eastern R., 4 C. B.^n. s. 2l*6 ; Pym v. Great Northern K., 4 Best & S. 396 ; Flinn v. Perkins, 32 Law J., n. s. Q. B. 10. 532 LAW OF CAREIERS. [CHAP. XL a jury. The two acts in question are, indeed, framed on differ- ent principles, and for different ends. The English statute gives damages as such, and proportioned to the injury to the husband or wife, parents and children, of any person whose death is caused by the wrongful act, neglect, or default of another person ; adopt- ing to this extent the principle on which it has been attempted to support actions to recover damages for the loss of a husband or of a child. The statute of Massachusetts is confined to the death of passengers carried by certain enumerated modes of conveyance. A limited penalty is imposed as a punishment of carelessness in common carriers. And as this penalty is to be recovered by indictment, it is doubtless to be greater or smaller within the prescribed maximum and minimum, according to the degree of blame which attaches to defendants, and not according to the loss sustained by the widow and heirs of the deceased. The penalty when thus recovered is conferred on the widow and heirs, not as damages for their loss, but as a gratuity from the State.i Thus the statute is as follows : " If the life of any per- son, being a passenger, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, steamboat, stage-coach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their ser- vants or agents in this commonwealth, such proprietor or proprie- tors, and common carriers, shall be liable to a fine not exceeding five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or adminis- trator of the deceased person, for the benefit of his widow and heirs ; one moiety thereof to go to the widow, and the other to the children of the deceased ; but if there shall be no children, the whole to the widow, and if no widow, to 'heirs according to the law regulating the distribution of intestate personal estate among heirs." ^ (a) ^ Per Metcalf, J., in delivering the judgment of the court, in Carey v. Berk- shire R., 1 Cush. 475. See Kearney v. Boston R.,-9 Cush. 108. " Act of 1840j c. 80. From the correspondent of the Boston Post of June 1, (a) For cases under this statute, see Commonwealth v. Boston R., 11 Cush. ,612; Commonwealth v. Eastern R., 5 Gray, 473; Commonwealth ». Sanford, 12 Gray, 174. The provisions of this statute are re-enacted in Gen. Stats. Mass. 1860, i;. 160, § 34*and applied to horse railroads. Act 1864, c. 229, § 37. There is also a law on this subject in New York, which limits the damages to $5,000. Chap. XI.] passenger carriers. — actions against. 633 § 602. In respect to the remedy for the' recovery of damages for an injury sustained by collision of carriages, in consequence 1855 : " Since tlie railroad accident at Norwalk, much has been said respecting the laws in different States regarding the value of human life, or the pecuniary compensation due to relatives whose friends are slain by the carelessness of ser- vants, or general mismanagement of a railroad. The decisions of the English courts, I think, should be good precedent for procedure here, and might well be made the basis of legislation on the subject. The gross absurdity of compensating a man for personal injury, but denying all compensation to his family in case he is killed, is too plain to need an argument. Look at two or three decisions in the English courts, based, I think, on Common Law, as I believe there is no special legisls^tion, and no need of any on the subject. A lady was travelling with her husband on the Midland Counties Railway, in 1851, when another train ran into theirs, killing the husband and several others. The lady brought a suit, — a sum was offered her, but she would not accept it, — and it was contested. The killing was not denied, nor the carelessness of the action ; it was merely a question of damages. The lady proved that her husband was a professional man, — a lawyer, I think, — and that his average annual income was £2,000. His age was proved ; I believe he was thirty-eight. Life-insurance tables were then consulted, and the average length' or duration of lives beyond that period was ascertained. The probable duration of his life, or its ' value,' as life insurance has it, was found, and it reached, I think, fifty-two years, or fourteen years beyond the period of his death. They then took either one half of his income, or one third, — one half, I believe, — for the lady, and computing the value by compound interest for fourteen years, awarded the amount, and' it was nearly seventy thousand dollars. Now will any one deny that here was anything beyond sheer and naked justice ? The wealth or the poverty of the widow had nothing to do with it. Nothing was allowed in con- sideration of her anguish, attendant on the sudden death of a beloved companion. Even this in the English courts is held to be a part of the ground of a claim for pecuniary damages. I may make a mistake in some of the figures, but the prin- ciple laid down in getting at the damages is the important part. They footed up the pecuniary value of the husband exactly as they would tell the worth of a bale of cotton or the value of a certain number of shares of bank stock ! Should the value of a laboring man, who can earn but five shillings a day, be computed as high as that of a professional man who has a large income ? Now, is it more than fair, if, while knowing the great value of the goods they carry, a company care- lessly mutilates, damages, or destroys their valuable freight, they should be called Laws of 1847, c. 450, amended by Laws of 1849, c. 256. See Oldfield v. New York E., 4 Kern. 310'; Whitford v. Panama R., 3 Bosw. 67 ; Crowly v. Panama E., 30 Barb. 99 ; Perkins v. New York R., 24 N. Y. 196 ; Tilley v. Hudson River E., 29 lb. 252; MoMahon v. New York, 33 N. Y. 642; Pennsylvania, — Act 15 April, 1851 ; Act 26 April, 1855 ; Act 10 December, 1856 ; Pennsylvania R. v. Zebe, 33 Penu. State, 318 ; North Pennsylvania R. v. Robinson, 44 Penn. State, 175 ; Pennsylvania E. v. Henderson, 43 Penn. State, 449, 51 lb. 315 ; Catawissa E. V. Armstrong, 52 Penn. State, 282 ; Georgia, — South Western R. v. Paulk, 24 Ga. 356 ; New Jersey, — Telfer v. Northern R., 1 Vroom, 188. 534 LAW OF CARRIERS. [CHAP. XL L wholly of the negligehce of the driver of one of them, an action of ti-espass may be maintained ; and so also may that action be on to pay that value to the uttermost farthing, even though it takes all their profits and some capital to boot ? Most certainly not. Then, too, suppose a man, the head of a family, should be killed under these circumstances, and bis in- come of £300 a year is shown to be the entire support of his wife and children, and that his life is ' good ' by the life-insurance tables for twenty years more, is £300 a year for twenty years, at compound interest, all the actual loss the widow and orphans sustain ? Should the care, love, and guardianship of a husband and father be valued at nothing ? I think they are worth a great deal. " A gentleman in England had his little son, not twelve years of age, killed by a railway accident, — the entire fault of the conductors, — and a jury awarded him £2,000, — almost ten thousand dollars. They very justly considered some- thing due to the feelings and affections of a bereaved parent. One more case. A commercial trader was greatly injured on the London, Brighton, and South Coast Railway, and the shock of his nervous system was so great that he had to give up his situation, and his physicians decided that in all probability he never could do business again. The company had offered him £2,000, which he re- fused. His salary was £400 a year, and this sum at compound interest for about twenty years — the 'value' of his life according to life-insurance tables — was awarded him. Now let such decisions, either by the common law or special enactment, become the rule in the United States, and railway companies will soon be brought to a feeling sense of the value of their cargoes, and the necessity for caution. What an absurdity on the face of the New York law, that compen- sation for the death of a person shall not exceed $ 5,000. . Just as if an American citizen — a sovereign in his own right — could not be valued at a higher figure than a paltry thousand pounds, when mere ' subjects' of a monarchical state are valued at from five to ten times that sum ! If railroad agents or canal boatmen smash up a crate of crockery, burn a bale of sheetings, or sink a parcel of hard- ware, the entire value is inquired after, and not only no deduction is made, but ten per cent is put on as prospective profits, loss of time, &c. Now, is a live and ac- tive man, one of the sinews of the republic, the entire stay of his family, a valuable member of society, to be more lightly estimated than a cook-stove, a piece of china- ware, or a bale of cotton goods ? Let intelligent legislators and jurors, who have studied their arithmetics, give us an answer." From the Boston Atlas of May 26, 1863 : " It is not generally known, that in the State of Connecticut a statute was framed, in the session of 1848, which pro- vides that ' actions for injury to the person, whether such injury result in death or not, shall survive to the executor or administrator, provided not more than one year elapse between the injury and death, and provided also the cause of action shall have occurred subsequently to June 27, 1848.' " This provision seems to have escaped general observation, owing to the fact that before the Norwalk massacre no case had occurred for its applicatien. The plain construction of this statute authorizes the executors of any person injured or killed through the neglect or default of any person, or corporation, to recover damages, and without any restriction as to the amount. The Hartford Times is informed that one suit has already, been commenced by the surviving relatives of CHAP. XL] PASSENGER CAEKIEES. — ACTIONS AGAINST. 535 maintained for any injury sustained by a foot passenger', by being run against by a carriage wholly in consequence of the person driving.^ In either of these cases the act complained of is imme- diate, and not merely a consequence of the act 'which occasions the injury ; and it matters not, so long as the injury complained of is direct and violent, whether the act which caused it be done intentionally or through negligence.^ Thus, where the defendant, driving his carriage on the wrong side of the road, when it was dark, drove by accident against the plaintiff's curricle, it was held, that the injury which the plaintiff had sustained having, been immediat-e, from the act of driving by the defendant, tres- pass might be maintained.^ It is a direct trespass to injure the person of another, by driving a carriage against the. carriage wherein such person is sitting, although the last-mentioned car- riage be not the property of, nor in the possession of the person injured ; * and where the defendant drove his gig against another chaise, whereby the plaintiff's wife was much hurt and injured, it was held, that an action at the suit of the husband and wife was pcoperly brought in trespass.^ Where the defendant's horses an eminent deceased physician for f 25,000, and another by the friends of one of the deceased Boston passengers for $100,000. , " In New York a similar law exists, with the exception that the damages can- not exceed $ 5,000 in each case. The object of this restriction was to guard against those vindictive and excessive damages which juries, under the influence of passion, or inflamed by the artful appeals of advocates, will sometimes give. It IS presumed that the New York and New Haven Railroad Company are liable to be sued under the law of New York, as well as under that of Connecticut, as the _ contract of passage was made in New York, and the company is also a New York Corporation. If thus liable under the New York statute, the damages recovered against tjie New York and New Haven Company, for those who were' killed at Norwalk, would amount to $ 255,000, and the damages for injuries to persons and destruction of property to $ 50,000 or $ 60,000 more. Under the statute of Con- necticut, the damages for the dead would be limited only by the verdicts of juries." ' See 'ante, § 563, et seq. ^3 Stark. Ev. 1107. (London edit. l842), the owner of a ship, being himself on ■board, and standing at the helm, unintentionally runs her against another ship, from unskilful management ; the remedy is trespass, and not case. Covell v. Laming, 1 Camp. 497. Trespass and not case is the proper action to recover damages for an injury sustained by the negligent driving of the defendant's horse. Waldron v. Hopper, Coxe, N. J. 339. And see Vincent v. Stinehour, 7 Vt. 62 ; McLaughlin v. Pryor, 1 Car. & M. 354. But see post, § 606. ^ Leame v. Bray, 3 East, 693. * 1 Chitt. PI. 127. ' Hopper v. Keeve, 7 Taunt. 698. 636 LAW OF CAEEIEES. [OHAP. XI. and wagon were wilfully driven against the horses and wagon of the plaintiflf, by which the -plaintiff's horses were frightened, and ran and broke loose from their wagon, and they were thereby injured and the harness broken ; it was held, that trespass was the proper remedy, and not trespass on the case.^ The defend- ant's gig, in which he was driving at a " brisk trot " through a narrow street, came in contact with the plaintiff's horse, which was loose in the street, by which the horse was killed ; and the defendant was held. liable in an action of trespass.^ (a) § 603. But case, instead of trespass, must always be adopted where the defendant's servant, and not the defendant personally, caused the injury by his carelessness, &c.^ In an action on the case against three defendants, proprietors of a stage-coach, for careless- ness and mismanagement 6f their coach and horses, whereby the coach ran against the plaintiff and broke his leg ; it was held, that the plaintiff might maintain case against all the proprietors, though he might perhaps have been entitled to bring trespass against the one who drove the coach. Holroyd, J. said, that the real ground of the action was the negligence of the defendant who drove, and " they are all responsible for the person appointed to drive, whether the person be or be not one of themselves. They are all responsible as the owners of the coach and horses. Trespass might lie against the driver by reason of his doing the particular act ; but still there would be a ground of action against his co- proprietors, and that could only be in an action on the case, for they are not by his act made co-trespassers. If case lies against them, it lies against him also as a joint proprietor, if a ground of action remains, after the trespass has been waived." * ' Eappelyea v. Hulse, 7 Halst. 257. ' Payne v. Smith, i Dana, 497. Where an infant hired a chaise, without the knowledge of his father, and the father ratified the act by directing the infant to pay the hire out of his wages, which belonged to the father ; it was held, that the father had such a special property in the chaise as would enable him to maintain trespass for an injury done to it during the term of'hire. Boynton v. Turner, 13 Mass. 391. ' 1 Chitt. PI. 127 (10th Am. edit.). And see Barnes v. Hurd, 11 Mass. 57; Campbell v. Phelps, 1 Pick. 62. * Moreton v. Hardern, 4 B. & C. 223. The decision in this case is commented • (a) A ship-owner who refuses to carry a passenger whom he has engaged to carry, and proceeds on the voyage, without giving the passenger reasonable op- portunity to remove his luggage, or who sails with the intent to carry it beyond the passenger's reach, thereby terminates the contract of carriage, and is liable in trespass for the carrying away of the luggage. Holmes v. Dftane, 3 Gray, 328. Hunt's Merchants' Mag. for June, 1849, p. 65G. ' Of April 30, 1820, sess. 43, ch. 202, s. 4 and 10. ' Farnsworth v. Groot, 6 Cow. 698. For the construction of the by-laws of a village, regulating wharves and basins on the Erie Canal, see Lamed v. Syracuse, 5 Wend. 166. CHAP. XII.] PASSENGER CAERIEES. — BY WATER. 563 commerce, has been agitated and decided ; and among the in- stances of that kind whicli have occurred, tliere are two which re- late to passengers bi-ought to our shores in vessels from abroad. By one of the provisions of a law passed by the legislature of the State of New Tork,^ the master of every vessel arriving in New York from any foreign port, or from a port of any of the States of the United States, other than New York, is required, under certain penalties prescribed in the law, within twenty-four hours after his arrival, to make a report in writing, containing the names, ages, and last legal settlement of every person who shall have been on board the vessel commanded by him during the voy- age ; and if any of the passengers shall have gone on board any other vessel, or shall, during the voyage, have been landed at any place with a view to proceed to New York, the same shall be stated in the report. The Corporation of the city of New York instituted a suit (an action of debt) under that law against the master of a ship, for the recovery of certain penalties, imposed by the act, on the ground that he did not report as required. The Circuit Court were divided in opinion on the following point, which was certified to the Supreme Court of the United States : " That the act of the legislature of New York assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void." The Supreme Court directed it to be certified to the Circuit Court of New York, that so much of the section of the act of the legislature of New York as applied to the breaches set forth, did not assume to regulate commerce between the port of New York and foreign ports ; and that so much of the act in question was constitutional. The opin- ion of the court was delivered by Mr. Justice Barbour, who con- sidered the act of the legislature of New York, not a regulation of commerce, but of internal police ; and hence it was passed in the exercise of a power which rightfully and constitutionally be- longed to the State. The intention of the law was viewed as in- tending to prevent the State being burdened with an influx of foreigners, and to prevent their becoming paupers, and who, as such, would become chargeable. It was not only the right, but the bounden duty of a State, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by ' In February, 1824, entitled " An Act concerning passengers in vessels ar- riving in the port of New York." 564 LAW OF CAERIEES. [CHAP. XII. an act of legislation which it may deem to be conducive to these ends, where the power over the particular subject, or the manner of its exercise, are not surrendered or restrained by the Constitu- tion of the United States. Prom this opinion, however, Mr. Jus- tice Story dissented, and in support _of his argument to the con- trary, he relied on the opinion of Mr. Chief Justice Marshall, in Gibbons v. Ogden,^ within the principles established by which case, he contended, the case before the court directly fell.^ § 632. Again, at a late term of the Supreme Court of the United States,^ Mr. Justice McLean gave the opinion of the ma- jority of the coiirt, in Smith v. Turner, in error from the Supreme Court of New Ybrk, against the constitutionality of the statute of that State imposing a tax upon alien passengers, on the ground that it was a law regulating commerce. The case was distin- guished from the above case of the City of New York v. Miln, in- asmuch as the latter was determined upon the ground that the law there in question operated within the State of New York, and that it imposed no obstruction to commerce, nor caused any delay. A similar statute of the State of Massachusetts was at the same time held to be unconstitutional and void.* § 633. Secondly, as to collision, and of the Common and Mari- time Law respecting it. The misfortune of a collision of one vessel with another may be the result of inevitable accident, or of circumstances beyond the control of the master, however mindful he may be of his responsibility, as by the violence of the wind and sea. It may be accidental, therefore, without fault on either side, or it may proceed from the negligence or unskilfulness of one or both the captains whose vessels come into collision.^ Where an injury occasioned by a collision happens to one or both vessels, and is in consequence of mutual default, the apportionment of damages is different in the Admiralty from what it is at Common ' Gibbons v. Ogden, 9 Wheat. 1. ^ New York V. Miln, 11 Pet. 102. There was no collision, it was held by the court, between the section of the act of New York, on which this suit was brought, and the provisions of the laws of the United States of 1799, or 1819, relating to passengers. ' At the December term, 1848. ' Passenger Cases, 7 How. 283. ' See Abbott on Shipp. (5th Am. ed.) 300, el seq. For the law in relation to the collision of vessels of common carriers of goods and merchandise by sea, see anle, §§ 16G and 226, and Plaisted v. Boston Steam Nav. Co., 27 Maine, 132. CHAP. XII.] PASSENGER CAERIEKS. — BY WATER. 565 Law. Neither party, we have seen, can sue at Common Law, where damage is occasioned partly by the default of one party, and partly by that of the other ; and if, in the opinion of the jury, the default of one party in any way concurred in causing the damage in question, he is not entitled to recover.^ (a) The rule of justice adopted by the Admiralty in such cases, is, that the loss shall be apportioned between the parties according to circum- stances. ^ 634. A Court of Common Law, whether for its inability to adapt its judgment to cases of damage occasioned by collision of vessels from mutual negligence, or for any other cause, refuses to interfere at all.^ In an action in King's Bench,^ a rule was ob- tained for setting aside an award of an arbitration, in a case for negligently running down the plaintiff's ship by another ship be- longing to the defendants, on the ground of a mistake of the arbi- trator in point of law. The alleged mistake was in awarding any damage to the plaintiff, when it appeared by his own showing, that either no negligence was imputable to the defendants, which was the gist of the action, or that at least the accident happened as much from the fault of one as the other. For tliese reasons it was held, the award could not be supported,, Grose, J. saying, that " it is evident that he (the arbitrator) meant to determine accord- ing to law, and he was mistaken in it ; therefore, the award is not such as he intended it to be." § 635. Lord Tenterden, in two cases at Nisi Prius, has laid down the doctrine of the Common Law applicable to cases of damage by a collision of vessels, where the damage has been in consequence of mutual negligence. In Vanderplank v. Miller,* which was a " running-down " case, that learned judge, in sum- ming up to the jury, said : " If there was want of care on both sides, the plaintiffs cannot maintain their action ; to enable them to do so, the accident must be attributable entirely to the fault of the crew of the defendants." On another occasion at Nisi Prius, in an action for the negligence of the defendant's servant in man- ' Ante, § 556, el seq. ; Ealston v. The States Eights, Crabbe, 22. " Per Gibson, J., in Simpson v. Hand, 6 Whart. 311. ' Kent V. Elstob, 3 East, 18. * Vanderplank v. Miller, 1 Moody & M. 21. (a) Dowell v. Gen. Steam Nav. Co., 5 Ellis & B. 195, 32 Eng. L. & Eq. 158 ; Gen. Steam Nav. Co. v. Mann, 14 C. B. 127, 26 Eng. L. & Eq. 341. 566 LAW OF OAEBIEES. [CHAP. XII. aging his barge, whereby the plaintiff's barge was run down and sunk, Lord Tenterden said : " The plaintiff, in this case, com- plains of an injury to his barge through the negligence of the de- fendant's servants. If the accident happened from the state of the tide, or from any other circumstance which persons of competent skill could not guard against, the plaintiff is not entitled to re- cover ; and so if the plaintiff's men had put this barge in such A place that persons using ordinary care would run against it, the defendant will not be liable. Nor will he be liable if the accident could have been avoided, but for the negligence of the plaintiff's men, in not being on board his barge at the time whe it was lying in a dangerous place. The only case in which the defendant is answerable is, if the accident arose from the negligence or want of skill in his own men." ^ In an action in the Exchequer, for run- ning down a vessel, Bayley, B. said : " The rule is, that the plain- tiff could not recover if his ship were in any degree in fault, in not endeavoring to prevent the collision. Here the plaintiff had a right to presume that the defendant's ship would do that which she ought to do. I quite agree, that if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can recover against the other." ^ § 636. In this country the above doctrine has been recognized by the courts in a number of instances, as applicable in navigation to vessels, as well as to carriages on land.^ In Pennsylvania,* it was held to be an undoubted rule, that for a loss arising from mutual negligence, neither party can recover in a court of Com- mon Law ; and this rule governed the shippers of goods on board vessels which come into collision, to the injury of the goods, as well as the owners of the vessels. Therefore it was held, that an action could not be maintained by the owner of goods on board a vessel against the owners of another vessel, to recover damages for an injury done to the goods by a collision of the two vessels, if ' Lack V. Seward, 4 Car. & P. 106. ° Vennal v. Garner, 1 Cromp. & M. 21 ; Steamboat Farmer v. McGrune, 26 Ala. 189. ' See ante, § 557, et seq. ; and see note to Smith v. Smith, 2 Pick. 624 (ed. 1848). In the case of Palmer v. Barker, 2 Fairf. 338, the opinion states that ■when two persons are travelling in opposite directions, and are about to meet and pass each other, in so doing both are bound to use ordinary care and caution. And see Hartfield v. Koper, 21 Wend. 615. * Simpson v. Hand, 6 Whart. 311. CHAP. XII.] PASSEKGEK CAERIEES. — BY WATER. 567 there has been mutual negligence in the conduct of those who had the vessel in charge.^ (a) In Maine,^ the court, after a careful examination of the adjudged cases respecting collisions, held the correct rule to be as above laid down. § 637. The doctrine of the Common Law, that neither party can recover for damage which has resulted from mutual negligence, has' in this country been applied to canal-boats. The "Canal Regulations " in New York have adopted, for the regulation of canal navigation, what is essentially the American law of the road ; ^ that is, when boats meet on the canals, it is the duty of the master of each to turn out to the right hand^ so as to be wholly on the right side of the centi-e of the canal.* If, at the time of a collision of two boats, either of tliem, through negli- gence or design, is near the centre of the canal, neither having turned sufficiently to the right, whatever injury results is the '■ By the Common Law, the liability to contribution, of cargo on board the •wrong-doing vessel, could only lead to circuity of action, inasmuch as the freighter might recover the amount paid by him from the owners of the vessel. But an action may be maintained by the owner of goods lost or damaged by collision against the owners of the vessel which can be proved to have been in fault. Abbott on Shipp. (5th Am. ed.) 313. As between the owners and the freighter, in cases of accident, the injury caused by a collision is a " peril of the sea," within the usual exception of the charter-party. lb. ; Buller v. Fisher, 1 Esp. 67. And, in one case, a loss resulting from collision occasioned by gross negligence was also held to have occurred by " perils of the sea." Smith v. Scott, 4 Taunt. 125. See ante, § 166. ' Kennard v. Burton, 12 Maine, 39. ' When two persons are travelling with carriages on the road, and are about to meet and pass each other, each is bound to pass to the right of the centre of the travelled road, and in so doing to use ordinary care and caution ; and if one of them, by omitting this care and caution, be injured in his person or property, he is without legal remedy. See ante, § 549, et seq. ; Palmer u. Barker, 2 Fairf. 338. ' 1 New York Kev. Stat. 248, § 154; lb. 695, § 1. (a) Duggins v. Watson, 15 Ark. 118 ; Otis v. Thorn, 23 Ala. 469. So where damage is done by a third vessel to a vessel in tow, no recovery can be had if the towing boat was in fault. New York Transp. Co. v. Philadelphia Steam Nav. Co., 22 How. 461. And the same principle applies where a person on board a boat or other means of conveyance is injured by means of the negligence of those in another vehicle. The Maverick, 1 Sprague, 23 ; Cattlin v. Hills, 8 C. B. 123 ; Thorogood v. Bryan, lb. 115 ; Rigby v. Hewitt, 5 Exch. 240 ; Brown v. New York.R., 31 Barb. 385. But see contra. Chapman v. New Haven R., 19 N. Y. 341 ; Colegrove v. Harlem R., 6 Duer, 382, 20 N. Y. 492 ; Brown v. New York E., 32 N. Y. 597. See Lockhart v. Lichtenthaler, 46 Penn. State, 151. 568 LAW OF CARRIERS. [CHAP. XII. common fault of both parties, and the owners of each boat must submit to the injury done to them, in consequence of the mutual default. Every, boat, navigating the New York canals, is also required to carry conspicuous lights on its bow ; and a want of lights on the bow is negligence.^ § 638. But it is to be observed, that, in cases of mutual negli- gence, the plaintiff will be entitled to recover if the want of ordinary care on his part did not contribute to produce the injury. In the language of Coleridge, J., to the jury : " If the plaintiff's servants substantially contributed to the injury, by their improper or negligent conduct, the defendants would be entitled to their verdict ; but if the injury was occasioned by the improper or negligent conduct of the defendant's servants, and the plain- tiff's servants did not substantially contribute to produce it, then the plaintiff would be entitled to a verdict." ^ This was the case of a brig carrying her anchor in a position contrary to the by-laws of the river Thames, at the time when she came into collision with a barge ; and it was held, that the improper carrying of the anchor would not, of itself, be sufficient to make the owner of the brig responsible in damages, if the barge, by departing from the known rule of the river, brought herself into the situation in which the brig struck her, although, but for the position of the anchor, the collision would not have produced the injury com- plained of. Coleridge, J. told the jury, if they thought the mis- ' Rathbun v. Payne, 19 Wend. 399. But there may be a third boat concerned, and there is a duty towards her to be attended to. Under the 7th section of the act of Pennsylvania of April 10, 1826, where an ascending and descending boat have to pass each other, near to, or at a narrow place in a canal, constructed un- der the laws of the State for inland navigation, it is the duty, as between them- selves, of the ascending boat to wait at such distance from such narrow place as to permit the descending boat to pass with safety ; and if any injury be sustained by the descending boat, through a non-compliance with the law on the part of the ascending boat, the latter is liable for such injury. But where a boat of a third party, moored properly to the bank of a canal for a lawful purpose, is concerned, and the ascending boat will not comply with the directions of the act of the State, it is held to be the duty of the persons having the charge of the descend- ing boat to keep her at a proper distance and under their control, so as to insure safety ; and if, through culpable negligence, or a want of due caution in passing each other, a collision takes place, through and by which the descending boat is driven against, and staves in, such third boat, the owners or persons in charge of the descending boat are answerable in damages for the injury sustained by such third boat. Sherrer y. Kissinger, 1 Barr, 44. Sills V. Brown, 9 Car & P. 601. CHAP. XII.] PASSENGER CARRIERS. — BY WATER. 569 chief was occasioned by any want of skill, or by any negligence or improper conduct whatever, on the part of the men on board the brig, without the men on board the barge having substantially contributed to produce it, then the plaintiff would be entitled to ^heir verdict. On the other hand, if they thought that the men on board the barge substantially contributed to the mischief, to its happening, to its taking place, then the defendant would be en- titled to a verdict.^ Where the claim of the defendant, in an ac- tion for an injury to the plaintiff's steamboat was, that the injury was occasioned by the neglect of the officers and cr^w of such boat to keep up lights according to the statute ; and the court charged the jury, that if such officers and crew were guilty of negligence, either in respect to the lights or otherwise, to such a degree as es- sentially to contribute to the injury complained of, the plaintifif could not recover ; it was held that the charge was unexceptiona- ble ; and the court, in giving their opinion, expressly sanction the rule as above laid down by Coleridge, J.^ In short, the result of the cases clearly is, that, although there has been negligence on both sides, the plaintiff may be entitled to recover, inasmuch as the fault of the plaintiff, in order to prevent his recovering, must be one directly tending to produce the injury.^ § 639. In an action against the owner of a brig, for' an injury done to a sloop belonging to the plaintiff, the amount of damage proved was upwards of £500, and the jury gave a verdict for & 250 only ; and on being asked how they made up their verdict,^ they replied, that, in their opinion, there were faults on both sides. It was held that, notwithstanding this, the plaintiff was entitled to a verdict, as there might be faults in the plaintiff to a certain extent, and yet not to such an extent as to prevent his recovering.* The verdict in this case, as well as the opinion ' One of the jury asked, whether they were not told, that the way in which the anchor was placed had nothing to do with the question. Coleridge, J. : " No. You must have misunderstood my observations, if that was the impression you received. The position of the anchor will not be sufficient to make the defend- ant liable, if the plaintiff, by his servants, substantially contributed to the occur- rence of the injury, not to its amount, but to the occurrence of it." The verdict was for the defendant. ' New Haven Steamboat Company v. Vanderbilt, 16 Conn. 420. ' Kennard v. Burton, uh. sup.; Rathbun v. Payne, 19 Wend. 399 ; Marriott v. Stanley, 1 Scott, N. K. 392 ; and the note to the case of Raisin v. Mitchell, 9 Car. & P. 613; CoUinson v. Larkins, 3 Taunt. 1 ; Luxford v. Large, 5 Car. & P. 421. * Raisin v. Mitchell, 9 Car. & P. 613. , 570 LAW OF CAEEIERS. [CHAP. XU. given by C. J. Tiiidal, is sustainable in point of law, according to a case decided in Exchequer/ which was an action on the case for the negligent management of a train of railway cars; and Mr. Baron Parke said : " There may have been negligence in both parties, and yet the plaintiff may be entitled to re- cover." § 640. Indeed, in cases of injury done by one vessel to another by collision, or other means, tlie authorities warrant the position, that the jury may take an equitable view of the facts and circum- stances ; as was expressly held by Tindal, C. 3? That case was an action to recover damages for the upsetting of a barge laden with coal, and it appeared that a small steam-vessel belonging to the defendants, and called The Water Lily, was proceeding down the river, preceded by a larger one, called The Ramona, and that, in consequence of the swell, occasioned by one or both these ves- sels, the plaintiff's barge was swamped and the coals lost. The amount of damage was about a680 ; but the jury returned a ver- dict for pnly £20, assigning as a reason for giving only that sum, that they did not think The Water Lily to have been the sole cause of the accident. Erskine, J. said : " The jury might well conclude, that The Water Lily had at least contributed to the accident, and, if so, though the swell occasioned by the de- fendant's vessel would not, in all probability, have caused the barge to sink, if the water had not been previously agitated by the . passing of The Ramona, still the owners of The Water Lily were in strictness liable for the whole damage. The jury, however, taking an equitable view of the facts, evidently thought it not fair to make the defendants pay for an injury which was only in part attributable to them." The court refused to interfere with the Verdict.^ § 640 a. The weakness of the vessel injured by collision is no protection to the owners of the other vessel, if they have been guilty of negligence ; and the circumstances may be such as to require even more than ordinary care on their part. In an action on the case founded on the allegation that the plaintiffs being pos- sessed of a boat tied to a wharf, and the defendant being possessed ' Bridge v. Grand Junction R., 3 M. & W. 244. » Smith V. Dobson, 3 Scott, N. R. 336, 3 Man. & G. 59. ' And per Goltman, J, : " The foreman is to give in the verdict, but he has no power to qualify that verdict by any observation he may think fit to add." CHAP. XII.] PASSENGEK CAREIEES. — BY WATER. 571 6f another boat, did, by himself and servants, manage his boat so carelessly, that it ran against the plaintiffs' boat, whereby she was sunk, &c. The collision occurred in removing the defendant's boat from a position above to one below that of the plaintiffs' boat, in doing which the defendant's boat necessarily passed outside of the plaintiffs'. There being evidence conducing to prove that the plaintiffs' boat was not so strong as boats ordinarily were, in which very heavy articles were transported in the river, the prin- cipal question was as to the effect which this fact should be en- titled to in determining the liability of the defendant, or the de- gree of diligence to which he was bound in removing his boat. It was held, that the weakness of the boat injured by collision af- forded no protection against the-defendant's want of proper care ; but that as the weakness rendered the boat more liable to injury from collision, it demanded greater vigilance and precaution on the part of those who knew the fact.^ § 641. The above cases illustrate the Common Law in respect to damage resulting from a collision of one vessel with another, when it has resulted from the negligence or mismanagement of the master or crew of both vessels. In the Admiralty, before which court misfortunes of this kind have been frequently the subject of controversy, the loss, as has before been stated, must be apportioned between the parties, as having been occasioned by the fault of both of them.^ (a) There has been much difference in the codes and authorities in maritime law, whether the cargo as well as the vessel was to contribute to the loss.^ But in a case before the House of Lords in England,* the cargo of the ship that was sunk and lost by the collision received the benefit of the con- ' Inman v. Funk, 7 B. Mon. 538. ' Abbott on Shipp. (5th Am. edit.) 303. We have before seen, that by an act of Congress the jurisdiction of the District Courts of the United States has been extended to certain cases upon the lakes (see ante, § 610 a). For a precedent of a libel in a case of collision under this act, see Appx. ' Abbott on Shipp. 300-314; 3 Kent, Com. 231; Story on Bailm. §§ 607- 611. * Hay V. Le Neve, 2 Shaw Scotch App. Cas. 395. (o) Vanx V. Sheffer, 8 Moore, P. C. 75 ; Hay v. Le Neve, 2 Shaw Scotch App. Cas. 395; The Victoria, 3 W. Rob. 49; The Montreal, 24 Eng. L. & Eq. 580; The Monarch, 1 W. Rob. 21 ; Sch. Catherine v. Dickinson, 17 How. 170; Rogers ». Steamer St. Charles, 19 How. 108 ; Gushing v. The John Eraser, 21 How. 184. ■ 572 LAW OF CAERIEBS. [CHAP. XII. tribution ; the house determining, after the address to them by Lord Gifford, that both vessels were in fault.^ Lord Denmau, adverting to the occasional hardship of the principle, says : " It grows out of an arbitrary provision in the law of nations, from views of general expediency, not as dictated by natural justice, nor possibly not quite consistent with it."^ Kent, in his Com- mentaries, speaks after Cleirac,^ of the rule as rusticum judicium.^ But collision, in the open sea, is comparatively rare, and generally accidental, while in roads and in confined navigations it is a disaster of frequent, and seldom of blameless occurrence; and " there is no better means," says Valin (adopting the reasoning of The Jugemens d'Oleron), " of making the masters of small vessels, which are liable to be injured by the slightest shock, atten- tive to avoid collision, than to keep the fear of paying for half the damage constantly before their eyes." * § 642. Lord Stowell, in the case of The Woodrop Sims,^ states four possibilities under which collision may occur. " In the First place, it may happen without blame being imputed to either party, as where the loss is occasioned by a storm or any other vis major. In that case the misfortune must be borne by the party on whom it happens to light ; the other not being responsible to him in any degree.''' (a) Secondly, a misfortune of this kind may arise, where ' The decree stated, that " the lords find that the appellants are liable to the respondents, in the sum of £ 1,535 16s., one half the value of The Wells and cargo, such half not exceeding the value of The Sprightly and her freight." The Court of Admiralty, says Story (Story on Bailm. § 607, n. 3), continues to act upon this rule, " as the sound doctrine of the maritime law ; and he refers to De Vaux V. Salvador, 4 A. & E. 420 ; and he says the rule of the Admiralty was fully recognized by Judge Hopkinson, in Reeves v. The Ship Constitution, Gilpin, 579. He also refers to 2 English Monthly Law Magazine, 607; 4 lb. 88; 5 lb. 45; 8 lb. 446 ; 5 lb. 303. ^ De Vaux v. Salvador, 4 A. & E. 420. ' Cleirac, Us et Coutumes de la Mer, 68. * 3 Kent, Com. 231. ' Abbott on Shipp. (5th Am. edit.) 306. " The Woodrop Sims, 2 Dods. 83. ' See Story on Bailm. § 608 ; Eeeves v. The Ship Constitution, Gilpin, 579 ; Steamboat Co. v. Whilldin, 4 Harring. Del. 228 ; Cummings v. Spruance, Ibid. 315. In cases of collision of vessels occasioned by stress of weather, and neither party is in fault, the owner of the injured vessel must bear the loss. Brig Veruma V. Clark, Texas, 30. (a) Stainback v. Rae, 14 How. 532 ; Union Steamship Co. v. New York Steamship Co., 24 How. 307 j The Morning Light, 2 Wall. 550 ; The Virgil, 2 ■ W. Rob. 205. CHAP. XII.] PASSENGER CAEEIEES. — BY WATER. 673 both parties are to blame, or where there has been want of dne diligence, or of skill on both sides : in such case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only ; and then the rule is, that the sufferer must bear his own burden. Fourtli- ly, it may have been the fault of the ship which ran the other down, and in this case the innocent party would be entitled to an entire compensation from the other." If the master or owner of one of the colliding vessels is unwilling to bear his own loss, and desires to fix it upon the other, he may seek his remedy in the Court of Admiralty, commencing with the arrest of the vessel, or in a Court of Common Law ; and, if he can prove that the master of the defendant's vessel was alone in fault, or that no want of ordinary care or skill, on his own part, contributed to the mis- fortune, he will be entitled, -in. either ti'ibunal, to recover a full compensation.^ § 643. It is very obvious that, in all cases of collision, the essential inquiry is, whether measures of precaution are taken by the vessel which has run down the other ; and'it is obvious, also, that the question is one partly of nautical care and skill, and partly a question of nautical usage.^ Where the evidence on both sides is conflicting and nicely balanced, a Court of Admiralty ' Abbott, &c., supra. " In cases of collision,'" says Story, " where a loss is caused by the fault of one of the ships only, the general maritime law exacts a full compensation, to be paid out of all the property of the owners of the guilty ship, upon the common principle applied to persons who undertake the convey- ance of goods, that they are answerable for the conduct of the agents whom they employ; and the other parties who suffer „ the damage place no trust in these agents, and can exercise no sort of control over their acts. To this rule England for a long time conformed. But Holland, having for the protection of its own navigation limited the remedy against the owner to the value of the ship, freight, apparel, and furniture, England has recently followed the example, and estab- lished by statute a like limitation. (See ante, § 90.) In America, no positive enactment has been made ; and therefore the responsibility of the guilty ship and its owners stands upon the general maritime law." (b) Story on Bailm. § 608 d. But see ante, § 90. " Story on Bailm. § 611 ; The Friends, 1 W. Rob. 478 ; General Steam Navi- gation Co. V. Tonkin, 4 Moore, P. C. 314 ; Steamboat Co. v. Whilldin, 4 Bar- ring. Del. 228 ; Lowry v. Steamboat Portland, post, §§ 655, 662 ; Williamson v. Barrett, 13 How. 101. (b) This matter is now regulated by statute in this country. See ante, § 90. ' 574 LAW OF CARRIERS. [CHAP. XII. will be guided by Uie probabilities of the respective cases which are set up. A priori, the presumption is, that the master of a vessel would do what was right, and follow the regular and cor- rect course of navigation. In the case of The Mary Stewart,^ which was a case of collision, the testimony of the witnesses on the one side and the other was so conflicting that the court requested the opinion of Trinity Masters upon the probabilities of the respec- tive statements in issue. If a vessel be at anchor, with no sails set, and in a proper place for anchoring, and another vessel, under sail, occasions damage to her, the latter is liable, (a) On. the other hand, if the place of anchorage is an improper place, the owners of the vessel which is thus injured must abide the conse- quences of the misconduct of the master. (6) A vessel ought not to be moored and lie in the channel or entrance to a port, except in cases of necessity ; and if so anchored from necessity, she ought not to remain there any longer than the necessity continues, and by so doing, and a collision occurs, with a vessel entering the harbor, she will be considered in fault.^ In a suit in the Admi- ralty, it was given in evidence for the libellants, that the ship Harriet, after sailing from New Orleans, passed over the bar through one of the passes or outlets of the Mississippi River, and came to anchor near the bar. Another ship. The Louisville, lying below, a distance of several miles, weighed anchor with a fresh and favorable wind for coming in through the same pass. As The Louisville approached the bar, the wind died away, and the cur- rent being stronger than iisual, owing to a strong wind from the south the night before, she drifted and so ran afoul of The Harriet. These passes, it appeared, are intricate and difficult to navigate, and subject to counter and under currents ; and if the wind dies away when a ship is coming in, she is certain to drift and become unmanageable. The question, under these facts, was, whether a > The Mary Stewart, 2 W. Rob. 244. ' The Scioto, Daveis, 359. (a) The Lochlibo, 3 W. Rob. 310, 1 Eng. L. & Eq. 651 ; Netherlands Steam- boat Co. V. Styles, 9 Moore, P. C. 286 ; The Bothnia, 2 Law T. n. s. IGO ; Cul- bertson v. Shaw, 18 How. 584 ; Steamboat New York v. Rea, 18 How. 223. (V) In the case of The Soh. Maroia Tribon, 2 Sprague, 17, a schooner going . out of Boston Harbor ran into a sloop. Both vessels were held in fault, the schooner for not keeping a proper lookout forward, and the sloop for being anchored in the channel. CHAP. XII.] PASSENGER CARHIEES. — BY WATER. 575 prudent master ■would anchor his vessel so. immediately in the thoroughfare as did The Harriet ; and that, too, after having been run afoul of by another vessel a year before, at or near the same place. The District Court decreed in favor of the libellants, and against The Louisville, her tackle, &c. The decree was, how- ever, reversed in the Circuit Court with costs, in which the opin- ion of Mr. J. McKinley was, that the third rule above mentioned of Lord Stowell, viz. that the sufTerer must bear his own burden under this third possibility under which a collision may occur, applied with great force to the case under consideration. It was admitted by the learned judge, that the opinions of some nautical men, found in the evidence, showed that it was possible for The Louisville to have avoided the collision, had everything been done that it was possible to do. But, said he, " the law imposes no such diligence on the party in this case ; so far as The Harriet was concerned, The Louisville was entitled to the full use of the thoroughfare of the pass ; the master of The Harriet having ob- structed it, with a full knowledge of the danger of doing so, has been guilty of such misconduct as to deprive the appellees of the right of action against the appellants." ^ On appeal by the libel- lants to the Supreme Court, that court being equally divided in opinion, the judgment of the Circuit Court was affirmed. If in this case the anchor had been too light to hold the ship, and slie consequently had dragged it, and she thereby had run against the other vessel, the responsibility of the loss would have fallen upon the owners of the anchored ship, inasmuch as she would have been negligently and improperly anchored:^ § 644. The anchorage of a vessel should always be properly taken up, and the anchor sufficiently large, and if not so, and a collision is the consequence, the blame must be imputed to the master ; whereas, if the collision arose merely from the violence of a squall, it will then be the result of inevitable accident. A commander of a ship was condemned in the Admiralty in a cause of damage, the collision having been occasioned by his anchoring too near the damaged vessel, and having anchored with only one anchor, the weather being squally and tempestuous.^ The own- ers of a vessel disabled by the negligence of its crew are clearly ' Strout V. Foster, 1 How. 89. ' The Massachusetts, 1 W. Eob. 71. ' The Volcano, 2 W. Rob. 337. 576 LAW OF CARRIERS. [CHAP. XII. answerable for damage done by accidentally drifting, when so dis- abled, against another vessel.^ § 644 a. There is no doubt that a vessel in motion is bound to steer clear of a vessel at her moorings, hjid that nothing can excuse her from making compensation but unavoidable accident, the vis major which no care can guard against ; ^ for it is the duty of every vessel, seeing another at anchor, whether in a proper or an improper place, and whether properly or improperly anchored, to avoid, if practicable and consistent with her own safety, any collision.^ It may perhaps be stated, as an established general rule, that a vessel entering a harbor in the night time is put on her utmost vigilance ; (as) and this is more especially so, if the port is one much resorted to in bad weather, as a harbor of refuge, and when it is reasonable' to expect that the harbor will be crowded with water-craft. The master and crew should be on deck, and in such parts of the vessel as to be able to control her .motions, and to see any vessel that lies in her track, and whicli they may be approaching. And, always when a collision takes place be- tween a vessel under sail and one at anchor, the primd facie pre- sumption, if there be any fault, is, that it is on the part of the vessel which is under sail.* § 645. If a vessel chooses to avail herself of a particular mode of going down a river, at a particular time, which renders it diffi- cult to escape a collision, she must bear the consequences of a con- tingency to which she has exposed herself. Tims a plea in the Admiralty, in a cause of damage, that the ship causing the col- lision was being warped down the river at the time, and in conse- quence could not get out of the way, was overruled.^ (6) ' Seecombe v. Wood, 2 Moody & R. 290 ; Walker v. U. S. Ins. Co., 11 S. & R. 61. If in a river there be a common and known passage-way for vessels to a wharf, there is ordinarily no right in any person to obstruct it by anchoring a vessel upon it, or so near to it as to expose another vessel to danger, by compel- ling her to depart from the passage-way. Knowlton u. Sandford, 32 Maine, 148. ^ The Girolamo, 3 Hagg. 173. ' The Batavier, 10 Jur. 19. ' The rule is so stated by Boulay Paty, Droit Maritime, tit 12, § 6, vol. 4, p. 492, and recognized in The Scioto, Daveis (Dist. Co.) R. 359 ; The Neptune, 1 Dods. 467. ' The Hope, 2 W. Rob. 8. (a) Culbertson v. Shaw. 18 How. 587 ; Ward ti. The Sch.Dousman, 6 McLean, 231. (6) See Potter v. Pettis, 2 R. I. 483. CHAP. XII.] PASSENGER CARRIEES. — BY WATER. 577 § 646. The laws of Oleroii and of Wisbuy made it the duty of a master of a vessel always, when in port, to keep a buoy to his anchor, and rendered him liable for all damage caused by a neglect to do it.^ It has been held at Common Law, that, if a vessel is sunk by inevitable accident, in a public navigable river, and without, therefore, any fault on the part of the owner, a buoy must be placed over it for the common safety ; and this was lield by Lord EUenborough to be the only proper and specific notice, and the one which all persons understand and are bound to attend to. Although the party, in such caSe of inevitable accident, is not liable to indictment for not removing the wreck, yet he is liable for damages in a civil action occasioned by a neglect of such notice ; a verbal communication by a person stationed near the spot of the sunken vessel is an admonition liable to be misun- stood, and is not a sufficient warning.'^ But it has been consid- ered remarkable that Lord EUenborough should have assumed such to-be the law.^ And in the English Court of Common Pleas, in 1848,* it was expressly held, that, where a vessel is sunk by inevitable accident, or withput any fault on the part of the owner or his servants, in a navigable river, and remains there under water, no duty is cast upon the owner to use any precaution, in the absence of any positive enactment to that effect, by placing a buoy or otherwise ; and that the owner therefore is not liable, either to an indictment, or to an action at the suit of a party sus- taining special damage in respect of such omission. Such an obstruction is, indeed, incident to commerce, and when not the result of negligence, is not unlawful, and imposes no duty ; for the vessel without his fault has been put beyond the control of the owner, and he has been an innocent sufferer.^ (a) Ships of the larger class and tonnage, when deeply laden, have often grounded in ascending and descending the river Delaware ; but it has never been considered an illegal obstruction of the channel, or a public nuisance, if ordinary care has been exercised. ^ ' Laws of Oleron, Art. 14 ; Laws of Wisbuy, Art. 28 ; and see 1 Pet. (Adm.) E. Appx. 28, 78, 85. ° Hairaond v. Pearson, 1 Camp. 515. ' Per Maulc, J., in Brown v. Mallett, 5 C. B. 599. * Ibid. ' Rex v. Watts, 2 Esp. 675. ' Cummins v. Spruance, 4 Harring. Del. 315. (a) See White v. Crisp, 10 Exoh. 312, 26 Eng. L. & Eq. 532. 37 578 LAW OF CAKEIERS. [CHAP. XH. § 647. In many ports there are Trinity House regulations, requiring vessels at anchor in a navigable river, or port of much commerce, to have a light hung out conspicuously in dark nights ; ^ (a) and the boats navigating the New York canals, we have seen, are subject to a like regulation, in order to avoid injury in their passing each other.^ By the act of Congress, also., providing for the better security of the lives of passengers on board of vessels propelled by steam, it is made the duty of the master and owner of every steamboat, running between sunset and sunrise, to carry one or more signal lights ; ^ and by the English Statute, 9 & 10 Vict. c. 100, § 9, every steamer in any river, or narrow channel in Great Britain or Ireland, or in the sea within twenty miles of the coast, is required to exhibit signal lights be- tween sunset and sunrise.* In the case of The Aliwal,® it was ' 3 Kent, Com. 230, note (c). Though it hag never been laid down as a gen- eral principle, by the English Court of Admiralty, that merchant vessels ought constantly to carry lights. The Kose, 2 W. Rob. 4 ; Columbine, lb. 33. ' Ante, § G37. ' Act of Congress of 1838, c. 191, § 10. Spe the act in the Appendix. ' The section referred to reads as follows : The master or other person having charge of any steam-vessel in any river or narrow channel in Great Britain or Ireland, or the adjacent islands, or in the sea within twenty miles of the coast, shall, whether under weigh or at anchor, between sunset and sunrise, exhibit such lights in such manner, and under such circumstances, as, by the regulalions therein authorized to be made by the Lords Commissioners of the Admiralty, shall be required, under a penalty of not exceeding £20 for each night's default. And the owner of any steam-vessel in which such light shall not be so exhibited shall not be entitled to recover any recompense or damage whatever which maybe sustained by such vessel in consequence of any other vessel running foul thereof during the night. By section 13, if any damage to any person or property shall be sustained in consequence of the non-observance, as respects any steam-vessel, of the rules in this act contained, relative to steam-vessels passing each other and exhibiting lights at night, the same shall in all courts of justice be deemed, in the absence of proof to the contrary, to have been occasioned by the wilful de- fault of the master or other person having the charge of such steam-vessel, and such master or other person shall be subject, in all | proceedings, whether civil or criminal, to the legal consequences of such wilful default. » The Aliwal, 25 Eng. L. & Eq. 602. (a) The matter of lights is now regulated in the United States by act of Con- gress, 1864, c. 69, 13 U. S. Stats, at Large, 58. Under U. S. Stat. 1849, c. 105, it has been held that the want of a light will not prevent the vessel so in fault from recovering half damages if the other vessel is also in fault. Chamberlain v. Ward, 21 How. 548. CHAP. XII.] PASSENGER CAHRTEES. — BY WATER. 579 stated that, " by an act of Parliament which directs that all sail- ing vessels, when under sail, or being towed, approaching or being approached by any other vessel, shall be bound to show, between sunset and sunrise, a bright light, in such a position as can be best seen by such vessel or vessels, and in sufficient time to avoid collision." § 648. The very fact that there have been as many instances of imposing by statute upon masters of vessels the obligation of car- rying, in dark nights, lights conspicuously hung out, and prescrib- ing a penalty for disobedience, argues culpable negligence in the omission of it, if there were no positive regulation upon the sub- ject. In reference to the act of Congress mentioned in the pre- ceding section, Wayne, J. has said, that, besides the penalty it prescribes, " if neglect or disobedience of it shall be proved to exist when injury shall occur to persons or property, it will be thrown upon the master and owner of a steamboat, by whom the law has been disregarded, the burden of proof, to show that the injury was not the consequence of it." ^ It was said by the court '^ that there was no general and absolute usage on this sub- ject, and that the omission of a light might or might not be a fatal negligence, .according to the circumstances. That was an ac- tion on the case, by the owners of a fishing smack against the owners of a vessel, to recover damages alleged to have been occa- sioned by the negligence and unskilfulness of those who had charge of the defendants' vessel, in running against the plaintiffs' vessel whilst lying at anchor in Provincetown Harbor. There was no light burning on the deck of the plaintiffs' vessel, but it was, although cloudy and misty, light enoiigh for a seaman to discern a vessel at anchor at a considerable distance. It was contended, for the defendants, that it was necessary for the plaintiffs to show that they had a light on their deck, and requested the judge so to instruct the jury. But he instructed them, that whether the plantifFs ought to have a light on deck depended on the circum- stances of the case, especially the position of the vessel at anclior, and the state of the light from the heavens ; that if the vessel was in the usual place of anchorage, and there was light enough to enable the running vessel, with a good lookout, to see and avoid the vessel at anchor, it was not necessary for the plaintiffs ' Waring v. Clarke, 5 How. 441. ' Carsley v. White, 21 Pick. 254. 680 LAW OF CAERIEES. [CHAP. XII. to keep a light on dock ; but if she was in an unusual or exposed place, and if it was so dark that a vessel at anchor could not be seen and avoided without a light on deck, it was carelessness not to have one ; that what would be suitable and necessary precau- tion in one situation and state of circumstances, would be insuffi- cient in another. To this instruction the defendants excepted ; and if the jury should have been instructed that it was necessary for the plaintiffs to have had a light on deck, the verdict, whiclv was for the plaintiffs, was to be set aside, otherwise judgment was to be rendered on the verdict. Morton, J., who delivered the opinion of the court, had no doubt of the correctness of the in- structions to the jury ; and held, that it was incumbent on the plaintiffs to show that the injury of which they complained was caused by the misconduct of the defendants, and did not arise from their own negligence. " Whether," said the learned judge, " common care and prudence required of the plaintiffs to have a light, and the omission to have it amounted to negligence, must depend on the darkness of the night, tlie number and situation of the vessels in the liarbor, and all the other circumstances con- nected with the transaction." This, said he, was a question of fact, within the province of the jury ; and as it was submitted to them, with proper comments and instructions, and they had decided it, there was no reason to complain of their de- cision. § 649. It was said, in the case of the collision between The Scioto and The Falcon, in the harbor of Portland (The Falcon lying at anchor there), one fault imputed to The Falcon was that of not showing a light. It appeared to the learned judge, before whom the cause was tried, if she had showed a light, to be nearly certain that she would have been seen from The Scioto, in ap- proaching her, in season to have avoided tlie collision. If she had had a light, said he, suspended in a conspicuous place, and a collision had taken place, it would, to say the least, liave been ex- tremely difficult for the colliding vessel to have excused herself; for, admitting the vessel was anchored in an improper place, her fault would not excuse any want of care and caution in another vessel.^ That the hoisting of a light in a river or harbor at night, amid an active commerce, was a precaution imperiously demanded by prudence, and the omission of it is not to be considered other- ' By the learned Judge Ware, Daveis, 368. !HAP. XII.] PASSENGER CAEEIEIJS. — BY WATER. 581 rise than as negligence j»er se, was held by the Chief Justice of Pennsylvania, in Simpson v. Hand.^ That was an action on the iase to recover damages for injury done to goods on board of a vessel while she was lying at anchor in the river Delaware, by a 'essel coming up the river in the night time ; and the court leld, that if the anchored vessel was moored in the channel of he river without a visible light burning at the time, or if her vatcli was not on deck, and did not do what was customary for the )urpose of avoiding a collision, there was such negligence as to )ar the action ; though there might have been negligence on the )ther side. § 650. Nothing is better settled in the Admiralty than that, in lark and foggy nights, measures of strict precaution are expected m the part of a master of a vessel, in order to avoid chances of JoUision ; (a) and if, amid nocturnal darkness or fog, a vessel should be sailing at the rate of eight or nine miles an hour, when ihe ought to have proceeded only at the speed of three or four, it vill be no valid excuse for the master to aver that he coiild not )revent the accident at the moment it occurred, if he could have ised measures of precaution that would have rendered the acci- lent less probable. However important it may be that a voyage liould be completed in the most speedy manner, such speed must )e combined with safety to other vessels. This is the expressly leclared doctrine of the courts of admiralty, and was applied to he case of The Virgil, which vessel, sailing upon a dark and oggy night, with her topmast studding-sails set, and coming into iollision with the sloop Jean, was condemned in the damage sued br.2 But in the case of The Ebenezer, it was held, that a vessel ' Simpson v. Hand, 6 Whart. 311. That opinion approved by Kent, 3 Kent, )om. 230, n. c. (6th edit.) ; and Steamboat Co. v. Whilldin, 4 Harriug. Del. 228. * The Virgil, 2 W. Rob. 201. In an action on the case for running down the ilaintiff 's brig, it was proved that the defendant's vessel was sailing in the chan- el before the wind, having her studding-sails set at night, and that the plaintiff's " rig was sailing by the wind, and the jury found a verdict for the defendant. ~he court granted a new trial for the purpose of further investigating the facts, s there was some doubt as to the propriety of carrying studding-sails at such a ime and in such a place, and also as to whether the defendant's captain had kept proper lookout. Jameson v. Drinkald, 12 Moore, 148. (a) By U. S. Stat. 1864, c. 69, art. 10, whenever there is a fog, by day or by ight, the following fog-signals are required to bo carried and used, and to be Junded at least every five minutes, viz. steamships under way must use a steam- 582 LAW OF CARRIERS. [CHAP. XII; running free with a fair wind, and carrying her squaresail, top-- mast studding-sail, fore-and-aft mainsail and gaff topsail set, the weather being dark and thick, and the night foggy, the case was dismissed in the Admiralty upon the ground of inevitable ac- cident. This case shows how much depends upon the courses of two vessels, &c., and the court thought there were many diffi- culties in the case, which might have misled both parties. It was also stated, in behalf of The Ebenezer, that the reason she carried so much sail as she did, was, that a very large number of vessels were immediately in her wake, and that she carried the sail in question for the purpose of avoiding the possibility of any of the vessels running into her.^ In the case of The Itinerant, the court said : " It is unqiiestionably the duty of every master of a ship, whether in an intense fog or great darkness, to exercise the utmost vigilance, and to put his vessel under command so as to secure the best chance of avoiding all accidents, even though such pre- cautions may occasion some delay in the prosecution of the voyage. It may be, that for such a purpose it would be his duty to take in his studding-sails ; but such is the constantly varying combina- tion of circumstances, arising from locality, wind, tide, number of vessels in the track, and other considerations, that the court can- not venture to lay down any. general rule which would absolutely apply in all cases." ^ (a) § 650 a. Steamers being more under control than sailing ves- sels, their duty in regard to avoiding collision can be more defi- nitely stated.^ A largo steamer proceeding on a dark night in the Frith of Clyde, a very thronged thoroughfare, at the rate of from twelve to fourteen miles an hour, came in collision with a small schooner, which, being deeply laden, and proceeding against the tide with a very light wind, had very little way on her, and was therefore incapable of altering her position. The schooner showed no lights and was not discovered by the steamer until close upon ' The Ebenezer, 2 W. Eob. 206. = The Itinerant, 2 W. Eob. 236. ' See post, §§ 656, 657, 663. A steamboat can be stopped in nearly her whole length. The Perth, 3 Hagg. Adm. 417. ■whistle placed before the funnel, not less than eight feet from the deck ; sailing vessels under way must use a fog-horn ; steamships and sailing vessels when not under way must use a bell. (o) See The Morning Light, 2 Wall. 550. CHAP. XII. j PASSENGER CAKEIEES. — BY WATER. 583 her, when a collision ensued, in consequence of wliieh the schooner almost immediately sunk. It was held, that, under the. circum- stances, the steamer was responsible for the damage, her watch and lookout, though sufficient under ordinary circumstances, not be- ing sufficient, considering the darkness of the night, and the rate of speed of the steamer.^ A large steamer, on her voyage from Kingston to Liverpool, came into collision at night with an out- ward-bound brig, which, in consequence of the collision, sunk im- mediately, with some of her crew. The night was dark, and the place of collision was a part of the Channel constantly navigated bjf vessels. The steamer was going at full speed ; she carried lights, and had but one man on her lookout station. Although the brig carried no lights properly so termed, it was held that the steamer, in going at full speed, on such a night, in such a locality^ and with one man only on the lookout, was improperly navigated and liable to the whole damage.^ Steam-vessels, under such cir- cumstances, are not justified by the English Court of Admiralty in going at the rate of ten knots an hour ; if one, going at that rate, come into collision with another vessel, without either party seeing each other, the steamer will be held responsible for the damage.^ To constitute a good lookout, there must be a suffi- cient number of pei'sons stationed for the purpose, who must know and be able to discharge that duty.* (o) § 651. There is a rule of navigation, in respect to sailing ves- sels, which undoubtedly had its origin in the customs of naviga- tion ; and the obligation it imposes is thus stated by Lord Stowell to the Trinity Master, in the case of The Woodrop Sims,^ " that the law imposed upon the vessel having the wind free the obliga- tion of taking proper measures to get out of the way of a vessel close-hauled, and of showing that it had done so ; if not, the ' The Londonderry, High Court of Admiralty of Ireland. Pritch. Adm. Dig. 129. » The Iron Duke, 2 W. Kob. 377. ' The Rose, 2 W. Rob. 2. See also The Perth, 3 Hagg. Adm. 414. ' The George, 2 W. Rob. 386 ; Jameson v. Drinkald, 12 Moore, 148. ' The Woodrop Sims, 2 Dods. 83 ; and see Waring v. Clarke, 5 How. 441. (a) Chamberlain v. Ward, 21 How. 548 ; New York Transp. Co. v. Philadelphia Steam Nav. Co., 22 How. 461 ; Haney v. Baltimore Steam Packet Co., 23 How. 287; The Europa, 2 Eng. L. & Eq. 557; Cashing v. The John Eraser, 21 How. 192. 584 LAW OF CAREIEES. [CHAP. XH. owners were responsible for the loss which had ensued. If they thought proper precautions were taken on board The Wood- rop, then it would be necessary to inquire whether the measures were counteracted and defeated by improper measures taken by those on board the other ship." We have seen that the remedy in cases of collision lies either in the Courts of Common Law, or in tlie Admiralty Court, and, at Nisi Prius,^ the jury found the rule to be, that the ship which is going to windward is to keep to windward, and that ship that has the wind free is to bear away. In a case in the Exchequer, Bayley, B. said, that the party who has the wind should give way, and it is expected he will make room.^. Therefore, a vessel sailing with the wind is bound to give way to ,one sailing by the wind ; and the vessel sailing by the wind is not, in ordinary circumstances, obliged to alter her course.^ It was held in the High Court of Admiralty, in the case of The Hope, that where a light vessel, with the wind free, meets with a laden vessel, close hauled, it is the duty of the former to give way, and the latter is to keep her course ; and if the night is so excessively dark that the persons on board the former vessel could see only a short distance from the vessel, this circumstance would only render it the more incumbent upon the crew to keep a good lookout, and not to depart from the general rule, unless com- pelled to do so by absolute necessity. Whoever sets up an excep- tion to the rule, so important as the general rule, is bound to prove that facts and circumstances occurred which rendered the rule itself no longer applicable.* ' Handyside v. Wilson, 3 Car. & P. 528. ' Vennall v. Garner, 1 Cromp. & M. 21. ' Jameson v. Drinkald, 12 Moore, 148 ; Steamboat Co. v. Whilldin, 4 Harring. Del. 228. * The Hope, 1 W. Rob. 154. See Sills v. Brown, 9 Car. & P. 601. In the case of The De Cock, in the High Court of Admiralty, The Parmelia was pro- ceeding up the channel, east by north, and The De Cock was coming down the channel, her course being northwest. The wind was nearly southwes;. ; there- fore The Parmelia, which was sailing on the starboard tack, had the wind free. The "night was dark and hazy, and although a good lookout was kept on board both vessels, a collision took place. Dr. Lushington put the following questions to the two elder brethren of the Trinity House, by whom the court was assisted. First : " Whether, under the circumstances of the case, The Parmelia, sailing up channel, with the wind free, ought not, immediaiely on perceiving the De Cock, to have given way ? " Answer : " She ought to have altered her course." Secondly : "Then, suppose it was so, ought the De Cock, seeing this state of ...JM CHAP. XII.J PASSENGER CAEEIERS. — BY WATER. 685 § 652. We Lave seen that, in the case of carriage of passengers by land, tlie established rule in England is, that in meeting each party shall bear or keep to the left, and that in this country the established rule is, that each party shall bear or keep to the right.i Were it left to chance, or to the hasty judgment of the moment, to choose the side each opposing carriage is to take, all safety would be gone ; but as it is, the most casual observer in a popu- lous English or American city miist be struck by the precision 'with which the vehicles crowding its streets pass to and fro with- out injury or contact.^ Ships at sea require a rule as well as carnages on land, but unfoi'tunately they cannot be as easily com- prehended, and are of much more difficult practical application. " The combination of circumstances, in which two meeting vessels find themselves, may be extensively varied by the state and direc- tion of the wind, and the relative position of the vessels towards the wind and towards each other." ^ It appears, that an order promulgated by the Trinity House Corporation in England, on the 30th of October, 1840, provides as follows : " Whereas the rec- ognized rule for sailing vessels is, that those having the wind fair shall give way to those on a wind ; that when both are going by the wind, the vessel on the starboard tack shall keep her wind, and the one on the larboard tack bear up, thereby passing each on the larboard hand ; that when both vessels have the wind large or abeam and meet, they shall pass each other in the same way on the larboard hand, to effect which two last-mentioned objects, the helm must be put to port." * The replies elicited by questions things, to have attempted to luff up, or have kept her course, or have put her helm to port as she did?" Answer: " It was wrong to put her helm to port." The court held, upon these answers, that both vessels were to blame, and directed the amount of damage done by the De Cock to be brought in and divided, and each party to pay their own expenses. 5 Month. Law Mag. 303, 22 Am. Jurist, 464. See also the case of the Speed, 2 W. Rob. 225. ' Ante, § 549. " See Art. in Westm. Review, Sept. 1844, p. 60. ' Westm. Review, supra. ' Explanation of the sea phrases used in the above order, and in the adjudged cases, — Bear up, or Bear away. To put the helm up (or to the windward or weather side) and keep a vessel away to leeward. On a wind, Close hauled, on a Bowline. Applied to a vessel which is sailing with her yards braced up, so as to get as much as possible to windward. Larije, Free. Applied to a vessel sailing with a fair wind. Larboard. Tlie left side of a vessel looking forward. Lee. The side opposite to that from which the wind blows. A-lee. The situation of 686 LAW OF CAEEIEBS. [CHAP. XIL addressed to witnesses by the select committee of Parliament on shipwrecks, state, as one of the causes of the many casualties hap^ pening by the collision of vessels at sea, the ignorance of, or inat- tention to, the Trinity Rules.^ Although deriving their force from the Trinity Board, those rules are not really enacted by that corporation, being of date older far than its charter; but notwith- standing they are of immemorial authority, they have heen so much doubted and misunderstood, that they seem to be attended by the uncertainties of oral tradition ; and the only authoritative ' written exposition of them is derived through the perplexities of an analysis of the successive judicial decisions in the High Court of Admiralty ; ^ and in truth they cannot be fully comprehended, and therefore not satisfactorily discussed, by one who has never known how to " hand," nor " reef," nor " steer." They by no means constitute a law per se, but at the same time they are re- garded by the English High Court of Admiralty as of authority.^ An alteration of a ship's course, being at all times inconvenient, when under sail, the alteration is usually made by one of the two ships only ; and the rule is easily understood, that a vessel sailing free shall be the one to give way ; and the expression " giving way " means not crossing a vessel's bows, but going under her stern.* When two vessels approach each other on opposite tacks, especially when one is close hauled, and the other vessel has the wind free, the rule is that the latter must give way ; but if both have the wind against them, the one on the larboard tack must give way, and the one on the starboard tack is to keep her course.^ § 653. Two vessels may not be approaching each other in a straight line, or anything like a straight line, and the courses they the helm when the tiller is put to the lee side. Leevjay. When a vessel loses by drifting to leeward. Luff. To put the helm down (or to the lee side), so as to bring the ship nearer the wind. Porl. To port the helm is to put the tiller to the larboard side. Starboard. The right side of a vessel looking forward. To starboacd the helm is to put the tiller to the starboard side. {Seaman's Manual.) See EncyclopiBdia Britannica, Art. " Seamanship." ' Westm. Review, supra. ' Ibid. ' 2 Kent, Com. 230 ; and see the case of the Duke of Sussex, 1 W. Kob. 274 ; The Catharine, 2 Ilagg. Adm. 145 ; The Ligo, lb. 356 ; The Thames, 5 Kob. Adm. 345 ; The Dundee, 1 Hagg. Adm. 109. ' The Rose, 2 W. Rob. 1. ' The Seringapatam, 2 W. Rob. 506, 8 lb. 88. CHAP. XII.] PASSENGER OAERIEES. — BY WATER. 587' are pursuing may cross each other angularly. The application of the Trinity House regulations, with respect to two vessels meeting each other, the one upon the larboard and the other upon the starboard tack, depends upon the presumption that the two vessels arc directly approaching each other, and is not intended to apply when the heads of the respective vessels are lying in different di- rections. If one of the vessels is lying with her head to the S. E., and the course of the other is N. N. W. half W., it is obvious that the two vessels are not approaching with their heads opposing each other ; and therefore it is held, the rule does not apply to the cir- cumstances of the case.^ Hence it appears, that no effectual sin- gle law can be devised to suit all circumstances, and it is usual to state the existing regulations in the form adopted by the Trinity Board, (a) § 654. In the case of The Ann and Mary, it was held, that in doubtful circumstances where there is a probability of collision, a vessel on the larboard tack, although close hauled, is bound to give way to a vessel on the starboard tack, notwithstanding the latter may be sailing with the wind free. One peculiar feature in this case arises from the fact, that an action had at Common Law had been brought by the owners of The Ann and Mary, the vessel proceeded against, against the owners of The Lady Clinton, on account of the collision in question ; and on the trial of that cause a verdict was found for the plaintiffs.^ § 655. Rules founded on. the like usages, and the gen'feral con- venience of commerce, have been recognized by high authority in this country .3 (J) In the United States District Court in Massa- clmsetts,* it was certified by experienced navigators, and adjudged by the court as the rule of the subject, that when two vessels ap- ■ The Loudon Packet, 2 W. Eob. 213. ' The Ann & Mary, 2 W. Kob. 189. In the case of The Traveller, 2 "W. Rob. 197, it was held to be the duty of tie vessel on the larboard tack to give ■Way to a vessel on the starboard tack, ■without considering whether the other vessel be one or more points to leeward. ' Story on Bailm. § 611 a; 3 Kent, Com. 230, 231 ; The Brig Rival, 1 Sprague, 128. * Lowry v. The. Steamboat Portland, U. S. D. C. Mass. 1 Law Rep. 313.. (a) In England the rules of navigation are now regulated by orders in coun- cil, passed in pursuance of the act of 25 & 26 Vict. c. 63. See Appendix to Lushington Admiralty Reports, pp. lix., Ixxii. (b) The rules of navigation are now regulated by statute. Act of 1864, c. 69, rt. 11 - 20, 13 U. S. Stats, at Large, 60. 588 LAW OF CARRIERS. [CHAP. XII. proacli each other, both having a free or fair wind, each vessel passes to the right. The usage in the river Delaware is, for ves- sels having the tide to keep further out ; for those stemming tlie tide, nearer the shore : and such usage it is proper to consider in cases of collision.^ § 656. With regard to steam-vessels, they must always back their engines when hailed in a fog. The steamer Perth was going in a fog with unabated speed, on a track frequented by coasters, and there was no order given, when slie was hailed, to stop her en- gines ; and slie was held liable to the amount and damages and' costs in a suit against her for a collision which ensued.^ In the case of The James Watt, it was held, that, where a steamer com- ing down a river in a dark night meets a sailing vessel beating up the river ,^ and tlie master of the steamer is in doubt what course tlie sailing vessel is upon, it is the duty of the master of the steamer to ease her engines and to slacken her speed, until he ascertains the course of the sailing vessel. In such a case, the defence that the master of the steamer immediately put her helm to port, in compliance with the Trinity House regulations, will not be sustained.^ § 657. As a steam-vessel has greater power, and is more under command, she is bound always to give way to a sailing vessel. A steamer is indeed generally deemed as always sailing with a free and fair wind, and is therefore bound to do whatever a common vessel going witli a free or fair wind would, under similar circum- stances, be required to do in relation to any other vessels which it meets in the course of the navigation.* In the case of The Col- ' Steamboat Co. v. WhiUden, 4 Harring. Del. 228. 2 The Perth, 3 Hagg. Adm. 414. See also The Rose, 1 W. Rob. 274. » The James Watt, 2 W. Rob. 270. ' Story on Bailm. § 611 J; Steamboat Co. u. Whilldin, 4 Harring. Del. 228; The Gazelle, 2 W. Rob. 515 ; Hawkins v. Dutchess Steamboat Co., 2 Wend. 452 ; Lowry V. Steamboat Portland, uh. sup. In a cause of collision against The Shan- non, a steam-vessel, the court, assisted by Trinity Masters, pronounced for dam- ages and costs, holding that the steam-vessel, though on the starboard tack, being more under command, and manifestly having seen the other vessel, was to blame in not having given way. The Shannon, 2 Hagg. Adm. 1 73. A custom among the navigators of steamboats, on a river, to preserve particular situations, in ascending and descending, the Supreme Court of Alabama thought, would seem salutary and reasonable, and analogous to the rule governing ships passing each other at sea. Such custom, it was considered, would, if proved, bind navi- gators of steamboats to its observance, and a failure to observe it would be at the peril of the owners. Jones v. Pitcher, 3 Stew. & P. 135. CHAP. XII.] PASSENGER CARRIERS. — BY WATER. 589 iimbine, it was held, that if a steamer and a sailing tcsscI are ap- proaching each other, and there is a probability of a collision, the general I'ule of navigation must be strictly adhered to ; and nei- ther haziness, nor the sailing vessel being first descried from the starboard side of the steamer, affords a sufficient justification for the conduct of the steamer in departing from the rule.^ § 658. Two steamers may be sailing in opposite directions, and there may be a reasonable probability, if they continue their course, of their coming in collision. Tlie regulation of the Trini- ty House in such case is drawn up with great precision, and is not difficult to comprehend ; it is as follows : When steam-vessels on different courses must unavoidably or necessarily cross so near that by continuing tlieir respective courses there would be risk of coming in collision, each vessel shall put her helm to port so as al- ways to pass on the larboard side of each other." This rule, emanating from the Trinity House, although it cannot be consid- ered as constituting law per se, is nevertlieless adopted as a rule in the Admiralty ; and the English High Court of Admiralty con- sider it important that it should be distinctly understood, that they should consider the rule of binding authority upon the own- ers of steam-vessels. If the masters of such vessels, that court have announced, shall think fit not to comply with the rule in question, in so doing they will be guilty of unseamanlike conduct, and their owners will be responsible for the consequences that may result from their disobedience of it. But the obvious meaning of the rule is held to be, that it is intended to apply whenever two steam-vessels are approaching each other in contrary directions, and tliere is a reasonable probability, that, by standing on, a colli- sion may ensue ; not, only where such collision is inevitable. If no reasonable apprehension of a collision is to be entertained, and the observance of the rule would unnecessarily throw each vessel out of its course, it would be an absurdity to suppose that under such circumstances the rule was intended to apply .^ Mr. Justice ' The Columbine, 2 W. Kob. 272. ' By Sir Stephen Lushington, in the case of the Duke of Sussex, 1 W. Rob. 274. The above-mentioned rule of the Trinity House, requiring steamboats to pass eaeh other on the larboard side, was expressly enjoined by the State of New York, more than twenty years ago, by statute. N. Y. Eev. Stat. Part I. tit. 10, § 1. By the Stat. 9 & 10 Vict. c. 100, § 9, every steam-vessel when meeting or passing any other steam-vessel shall pass as far as may be safe on the port side of such other vessel, and every steam-vessel, navigating any river or narrow channel, 590 LAW OF CABKIEES. [CHAP. XII. Woodbury, in a case decided in the Supreme Court of the Unit- ed States, observed that there is no such rule as that prescribed by the Trinity House, in this country, though lie considered the principle on which it rested a sound one.^ This meaning un- doubtedly is, that no such rule has yet been recognized as obliga- tory by any authoritative judicial decision. If it should be shown in this country that there is a usage well established to that ef- fect, it may be supposed that our courts would not hesitate to en- force it.^ § 659. In a cause of collision in the Admiralty, against a steam- vessel, for damage occasioned to her by another steam-vessel, the grounds of defence were twofold : first, an alleged custom, super- seding the Trinity House rule ; and secondly, that the circum- stances of the case were such that the rule had no application in that instance ; or, in other words, that the two vessels were pursu- ing courses so widely distant from each other, that there was no reasonable probability that a collision would have occurred. The facts set forth were, that the steamer Lightning was proceeding up the river Thames, and had arrived in the Half-way Eeach, about five miles from Woolwich, when the steamer Duke of Sussex was seen coming down with the tide " end on " towards The Light- ning ; that when the two vessels had approached to witliin about a quarter of a mile of each other, it was obvious to the persons on board The Lightning, that if both vessels continued their respec- tive courses, a collision would probably ensue. The helm of Tlie Lightning was accordingly put to port, in conformity with the rule of the Trinity House, but the helm of The Duke of Sussex, instead of being put in like manner to port, was put to starboard, and in a few seconds she ran her bowsprit into The Lightning's paddle-box, breaking the paddle and wheel by the collision. The defence set up by the owners of the Duke of Sussex was, that the tide at the time the collision occurred was about one third ebb ; that the full force of the ebb tide was northward of Half-way Eeach, and that it was the practice and custom of steam-vessels shall keep as far as practicable to that side of the fair-way or mid-channel of such river or channel which lies on the starboard side of such vessel, due regard being paid to the tide, and to the position of each vessel in such tide ; and the master or other person in charge of such vessel neglecting to observe such regulations, shall for each default be liable to a penalty not exceeding £50. ' Waring v. Clarke, 5 How. 441. ° Conkl. Adm. Jurisdict. 311. •CHAP. XII.] PASSENGER CARRIERS. — BY WATER. 591 coming up the river to keep to the south side of the mid-channel, and those going down to adhere to the north side ; that The Duke of Sussex was pursuing the usual course, and if The Lightning had done tlie same, the two vessels might have passed clear of each other ; that there was no necessity for the persons on board that vessel to have ported her lielm, and it was only in conse- quence of The Lightning's deviation from the customary rule that the collision was occasioned. Sir Stephen Lushington said : " Supposing the custom to exist as stated, it can only be acknowl- edged where there is an open way for eqch vessel to pass without any risk of a collision. In the present case it is directly averred, on the part of The Lightning, that the two vessels were approach- ing each other 'end on ' ; in which case I distinctly lay it down as my opinion, that the rule was to be observed, and the custom, if any such custom exist at all, be superseded. If there be any risk, convenience must give way to the rule ; if it were otherwise, the masters of steam-vessels would always be looking out for cir- cumstances to justify them in departing from the rule ; the rule would be disregarded for the salte of a little more or less con- venience, and the greatest uncertainty would ensue in conse- quence." With these observations he left the first part of the defence for the Trinity Masters to determine how far it was im- perative upon the owners of The Duke of Sussex to observe the rule. Upon the second part of the defence he relied on their judgment to decide, whether the two vessels were so far distant from each other as to render it altogether unnecessary for The Lightning to have ported her helm under the circtimstances of the case. If, under the facts disclosed, there was a reasonable proba- bility of collision, he apprehended it was clear that The Lightning acted properly, and that The Duke of Sussex was to blame. The reply of the Trinity Masters was : " The Lightning was thrown into the middle of the river to avoid some colliers ; and, under the circumstances of the case, we think there was such a probabil- ity of a collision, that The Lightning adopted the right course, and the accident was caused by the misconduct of the Duke of Sussex." 1 § 660. We have seen that the rules of the road to be observed by carriers of passengers by land are not inflexible, although if they are disregarded more care must be exercised, and a better • The Duke of Sussex, 1 W. Eob. 274. 592 LAW OF CARRIERS. [CHAP. XH. lookout kept to avoid collision than would be necessary, provided they were strictly observed ; ^ and situation and circumstances, it was said, may frequently arise where a deviation from the ac- knowledged rules would not only be justifiable, but absolutely necessary.^ Tlie same doctrine is applicable to carriers of passen- gers by water ; and a vessel is not to be run into because she is out of place .3 (a) Mr. C. Justice Best, in a case of collision of vessels, at Nisi Prius, in summing up, said that he agreed, that although there might be a rule of the sea, yet a man who has the management of one ship is not to be allowed to follow that rule to the injury of tlie vessel of another, when ho could avoid tlie injury by pursuing a different course ; but if the matter comes into any doubt, as, for instance, in the case of a dark night, then the rule is to regulate the parties.* § 661. The rules of the sea, in respect to navigation, it is al- ways admitted, are subordinate to the rule prescribed by common sense. Thus, if a vessel goes so near to a rock on the land, that, by following the rules, she would inevitably get on shore, no rule should prevail over the preservation of property or of human life.^ It was urged in the case of The Hope,^ that, if it was in the power of one of the vessels which came into collision to have avoided the collision by giving way, she was bound to have done so, not- withstanding the rule of navigation. Tiiis tlie court admitted to be true, as a general proposition, and said that " no vessel should unnecessarily incur the probability of a collision by a pertinacious adherence to the strict rule of navigation." " If a steam-vessel," said tlie court, " should, for instance, be nearing another sailing vessel, and such vessel sliould be steered erroneously ; if tlie ' Ante, § 549, et seq. ' Lowiy V. The Steamboat Portland, 1 Law Rep. 313. ' Cummings v. Spruance, 4 Harring. Del. 315 ; Vanderbilt i\ Richmond Tunip. Co., 2 Comst. 479. Steamboats in the river Mississippi are not necessarily liable for sinking flat-boats, by being out of the usual channel, for the purpose of obtain- ing wood, passengers, or freight ; there must be some negligence on the part of the ofEcers of the steamboat, in order to render her liable. Western Belle v. Wag- ner, 11 Misso. 30. ' Handyside v. Wilson, 3 Car. & P. 528. ■■ The Friends, 1 W. Rob. 478 ; and see Hawkins v. The Dutchess Steamboat Co., 2 Wend. 452. » The Hope, 1 W. Rob. 154. (a) Steamboat Fanner v. McCraw, 26 Ala. 189. CHAP. XII.] PASSENGER CAKEIERS. — BY WATER. 593 master of the steam-vessel should wilfully say, ' This vessel is steering wrong, but we will keep our course,' and a collision en- sues in consequence, I should undoubtedly hold the steam-vessel vas to blame." But the steam-vessel would be exonerated if the sailing vessel was steering wrong, and the former did not strictly comply with the rule of navigation if she did all that was reason- able under the circumstances, and a collision unintentional should take place between them. A steam-vessel going down channel in a dark night, on seeing the lights of a ship ahead, ported her helm, but did not put it hard a-port in the first instance. The ship, which was coming up channel, mistook the lights of the steam-vessel for those of a lugger at anchor, and starboarded her helm for the purpose of passing within hail of her, in consequence of which a collision took place. It was held that the steamer, though the collision would have been avoided had she put helm hard a-port in the first instance, did all she was called upon to do, having reason. to expect that the ship would either have kept her course, or put her helm to port ; and that the ship was in culpa- ble error, in starboarding instead of porting her helm, as some uncertainty must have existed as to the character of the vessel carrying the lights, and that she was, therefore, liable for the damage occasioned by the collision.^ § 662. In Lowry v. The Steamboat Portland,^ the learned dis- trict judge (Davis) took the opinion in writing of some distin- guished nautical men under oath, who, among other things, returned this answer : " In our answers to former questions, we have stated the rule or usage to be, that when two vessels are j sipproaching each other, both having the wind free, and conse- quently the power of readily controlling their movements, the vessel on the larboard tack shall give way, and thus each pass to the right. This rule should govern vessels, too, sailing on the wind, and approaching each other, when it is doubtful which is to Tfindward. But if the vessel on the larboard tack is so far to windward that if both persist in their course the other will strike her on the leeward side abaft the beam, or near the stem, in such case the vessel on the starboard tack must give way, as she can do so with greater facility, and less of time and distance than the other. These rules are particularly intended to govern vessels ' The Sappho, 9 Jur. 560. * Ante, § 655 ; Steamboat Co. v. Whilldin, 4 Harring. Del. 228. 38 594 LAW OF CARRIERS. [CHAP. Xn. approaching each other, under circumstances that prevent their course and movements being readily ascertained with accuracy ; for instance, in a dark night or dense fog. At other times, cir- cumstances may render it expedient and proper to depart from them ; for we consider them all subordinate to the rule pre^ scribed by common sense, and applicable to all cases, under any circumstances, which is, that every vessel shall keep clear of every other vessel, when she has the power to do so, notwithstanding such other may have taken a course not conformable to estabr lished usage. "We can scarcely imagine a case in which it would be justifiable to persist in a course, after it had become evident that collision would ensue, if by changing such cotirse the collision could be avoided." § 663. In an action at Common Law (of the case) brought to recover damages for an injury sustained by the plaintifiF in conse- quence of the running of a steamboat upon a sloop belonging to the plaintiff, while navigating the river Hudson, it appeared on the trial that the two vessels met just below the overslaugh below,. Albany. The sloop was going down the river with a fair but light breeze at the rate of two miles an hour, and the steamboat was going up the river at the rate of six or seven miles an hour. The sloop had just crossed the bar in the usual channel, and necessa- rily ran near the eastern shore, the steamboat was also close in on the same shore ; the officers of both vessels hailed ; the plaintiff on board his sloop called to the officers of the steamboat to stop the engine ; the pilot of the boat called to the plaintiff, who was at the helm of his sloop, to bear away ; the plaintiff did bear away, but, as he had but little headway on his vessel, he made but little progress. The engine of the steamboat was stopped, but the boat was not backed, as she might have been, and struck with her bow the waist of the plaintiff's sloop, and injured her materially. The verdict being for the plaintiff, it was moved to be set aside, but a new trial was denied ; the court, by Savage, C. J. saying : " The real question is, whether the officers of the steamboat were not guilty of negligence in refusing or neglecting to exercise the power they possessed, which would have prevented the injury. The boat was perfectly under the control of its officers, the sloop was not ; the officers of the boat did not endeavor to avoid the collision, which they might have done, either by backing their boat, or by going on the west side of the sloop, where there was room enough — %aij|ji CHAP. Xn.] PASSENGER CAERIEES. — BY WATER. 695 and water enough. The sloop was compelled to go near the east shore in order to pass the bar with safety ; and, after pass- ing the bar, the captain did all in his power to avoid the collis- ion, by endeavoring to go west of the boat ; but, from the slow motion of his sloop, this was impracticable, before the boat struck him. This appears a strong case of negligence, if not of wilful injury." ^ § 664. The owner of a vessel which, through the fault or negli- gence of any one on board, injures another vessel by running afoul of her, is liable to the injured party, although there is a pilot on 'board who has the entire control and management of the ves- sel.^ (a) It is more convenient, it is held, that the owner of such vessel should seek his remedy against the pilot, whom he has se- lected for this service, than that the injured party should. It is ' Hawkins v. The Dutchess Steamboat Co., 2 Wend. 452. ' Yates V. Brown, 8 Pick. 22 ; Shaw v. Eeed, 9 Watts. & S. 72 ; Smith v. Condry, 1 How. 28 ; Bussy v. Donaldson, 4 Dallas, 206 ; Fletcher v. Braddick, 5 Bos. & P. 182. And see ante, § 193, note. (o) In England it is provided by statute that no owner or master of a vessel shall be liable for any loss or damage happening by the neglect, default, or incom- petency of the pilot in charge. 6 Geo. 4, c. 125, § 55. The act contains a sec- tion which provides that the act shall not extend to ports in regard to which special provisions have been made in any act of Parliament. This excludes from the operation of the act the ports of Liverpool and Newcastle. The acts relat- ing to these ports provide that the master shall take a pilot or shall pay half pilot- age, and such a taking has been held compulsory, and the owners not liable for the act of the pilot. Rodrigues v. Melhuish, 10 Exch. 110, 28 Eng. L. & Eq. 474 ; The Montreal, 24 Eng. L. & Eq. 580 ; The Maria, 1 W. Hob. 95 ; The Agricola, 2 W. Bob. 10. The pilotage acts in this country are generally similar to the Liverpool and Newcastle acts in this respect, and it would seem that the same rule of construction should govern. This seems to be the opinion of Mr. Justice Curtis in The Carolus, 2 Curtis, C.[C. 69, though the point was not decided. An oiltward-bound vessel has a choice of pilots, and the doctrine of compulsion would not apply. The cases in this country are of this class chiefly, though in some it floes not appear whether the vessel was outward bound or homeward bound. See The Julia M. Hallock, 1 Sprague, 539 ; The Steamboat Rescue, 2 Sprague, 16 ; Yates V. Brown, 8 Pick. 23 ; Bussy v. Donaldson, 4 Dall. 206 ; Williamson v. Price, 16 Mart. La. 399 ; Smith v. The Creole, 2 Wallace, C. C. 485. If the master is obliged to take the first pilot who offers or to pay half pilotage, the doc- trine of compulsion would seem to apply to homeward-bound vessels as well as under the English statutes. It may also be questioned whether the relation be- tween the owner of the vessel and the pilot is liot that of contractor and con- traotee, rather than that of master and servant. See Linton v. Smith, 8 Gray, , 147, and cases cited, § 575. 696 LAW OF CAEEIEES. [CHAP. XIL also, it is held, more conformable to the general spirit of the law ; for although the pilot holds his commission under government, yet in many respects he is the servant of the owner who employs him, and in regard to the time of sailing is undoubtedly under the direction of the owner. The master, in such case, would not be liable, for he is answerable only in respect of his authority over the vessel, which authority is entirely suspended by that of the pilot, when the vessel is under sail, within pilot ground.^ In Snell V. Eich, in New York, the vessel which ran foul of another vessel lying at anchor, and carried away her bowsprit, was sailing at the time out of the harbor with a pilot on board, and the mas- ter at the time was on shore ; and Livingston, J. said : " It is universally understood that the pilot, while on board, has the ab- solute and exclusive control of the ship ; and I am prepared to say, that if the master had been on board he would not have been responsible." ^ In the case of the ship Massachusetts, in the Eng- lish High Court of Admiralty,^ a collision was occasioned by the dragging of her anchor, and, in consequence, driving against the bows of The Bulfinch ; the anchor being too light to hold the ship. It was held, that the owners of the damaging ship were not exempted from responsibility by the fact of having a licensed pilot on board at the time, under the provisions of the statute 6 Geo. ■ Opinion of the court by Parker, C. J., in Tates v. Brown, ub. sup. In this case, it appeared on trial, that the Napoleop, when sailing out of the harbor of Boston, bound on a foreign voyage, with a pilot on board, came in contact with The Only Son, which was lying in the stream, by which the bowsprit of The Only Son was injured. One of the defendants was on board the Napoleon when the accident happened. A verdict having been found for the plaintifis, which settled the amount of damage, and the fact of the mismanagement of the defendant's vessel, the question was reserved for the whole court, whether, there being a per- son duly authorized to pilot the Napoleon, the owners of the vessel were liable for an injury from negligence or mismanagement in navigating the vessel out of the harbor. The captain of a sloop of war, it has been held, is not liable for damage done by her running down another vessel ; the mischief appearing to have been done during the watch of the lieutenant, who was upon deck, and had the actual direction and management of the steering and navigating of the sloop at the time, and when the captain was not upon deck, nor was called by his duty to be there. The master was a captain in the naval service, and had no power of appointing the officers or crew on board ; and there is no reason for making one man liable for the acts of another whom he did not appoint or employ. Nich- olson V. Mounsey, 15 East, 384. ' Snell V. Rich, 1 Johns. 304. ' The Massachusetts, 1 W. Rob. 371. CHAP. XII.] PASSENGER CARRIERS. — BY WATER. 597 IV. Dr. Lushington, in addressing the Trinity Masters, said : " If you are of opinion that the accident arose partly from the fault of the pilot in not coming to an anchor in sufficient time, and partly from the defective weight of the anchor, the legal consequence is, that the damage having arisen from the joint default of the pilot and the owners, the responsibility of the loss must fall upon the owners of the ship." That is, although, by the aforesaid stat- ute, the owners are exempted from responsibility in case of acci- dents, when there is a licensed pilot on board, they would not be, even by the force of the statute, if the accident was owing in any deeree to the fault of the master.^ § 665. When a collision occurs in the port of a foreign country, the rights and responsibilities will depend on the laws of that country as interpreted by its judicial tribunals. By some of the Enghsh pilotage statutes (6 Geo. IV. c. 125), neither the master nor the owner of a vessel is answerable for damage occasioned entirely by the fault of the pilot ; ^ and in case of a collision be- tween two American vessels in an English port, the rights of the parties, it has been held, will depend, in a suit in this country, upon the provisions of these statutes. It was so determined by the Supreme Court of the United States, in Smith v. Condry,^ in ' The Girolamo, an Austrian vessel, left the London Docks with a licensed pilot on board, towed by a steam-vessel. After she had passed Blackwall, a fog came on, during which she ran foul of The Edward, a British convict ship, moored below Woolwich, in the proper berth for such vessels. Sir John NichoU said : " Did the accident arise from the neglect, default, or incapacity (the words of the act 6 Geo. IV.) of the pilot ? or was the master in pari delicto f It occurred from ihe vessel going on in the fog, not from the want of bad steerage, want of knowl- edge of shoals, or any incapacity as pilot, but from proceeding at all. It seems to be nearly admitted, that if the vessel had set off in this fog, blame would have been imputable to the master ; if so, was he not blamable in going on in the fog ? Had he not a right to resume his authority ? Did he not owe it to his owners and to other persons, whose property might be damaged by collision, to insist on bringing the vessel up ? Was not the master in duty bound at least to remon- strate with the pilot, and to represent the danger of proceeding ? Yet he says in his affidavit, ' he did not in the least interfere.' In this aspect the case is, as far as I am aware, new, and one of too much difficulty to arrive at any hasty deci- sion upon, unless there be no other points upon which the case may be disposed of." 3 Hagg. Adm. 176, and Abbott on Shipp. (5th Am ed.) 300 n. (6). ^ Carruthers v. Sydebotham, 4 Maule & S. 77. ' Smith V. Condry, 1 How. 28. It appears by the case of The Vernon, that the provisions of 6 Geo. IV. equally apply in cases where the damage is done by a British ship to the property of foreigners, as in cases entirely between British 598 LAW OF CAERIEES. [CHAP. XH. ■which Tanfey, C. J., in giving the opinion of the court, says : " The collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British statutes then in force ; and if doubts exist as to their true construc- tion, we must of course adopt that which is sanctioned by their own courts." The leading principle of the legislature in England, in exonerating owners of vessels from any damage occasioned by their vessels having pilots on board, is, that the masters are com- pella,ble to take such pilots on board, and the owners are not responsible for the acts of persons to whOm they are thus forced to commit the management of their property, and over whom they have no control.^ It may be inferred, says Lord Tenterden, from two cases considered together, which were cited with respect to a Liverpool pilot, — one in the Court of King's Bench,^ and the other in the Court of Exchequer,^ — that where the master is bound by an act of Parliament, under a penalty, to place his ship in charge of a pilot, and does so accordingly, the ship is not to be Qonsidered as under the management of the owners, or their ser- vants ; but when it is in the election or discretion of the master to take a pilot or not, and he thinks fit to take one, the pilot so taken is to be considered as a servant of the owners. Under what circumstances the master is thus bound to place his vessel under the charge of a local pilot must depend upon the provisions of the local law, by which the duty of taking a pilot is imposed by the master. The master is not answerable for the misconduct or awkwardness of a person whose appointment is, by public au- thority, taken out of his hands.* The appointment of pilots, and the regulation of pilotage, have been hitherto left by the Congress subjects, upon the principle, that, when a remedy is sought to be obtained, the party seeking it must take it according to the law of the country in which it is to be enforced. The Vernon, 1 W. Kob. 316. (a) ' The Maria, 1 W. Rob. 95 ; and see cases cited, ante, § 193, n. 3. See the different acts of Parliament on the subject of pilots and pilotage compared and commented on by Mr. C. J. Taney, in Smith v. Condry, ub. sup. The Protector, 1 W. Kob. 45. That the construction of the different pilot acts in England has not been uniform. The Agricola, 2 W. Eob. 10 ; Mackintosh v. Slade, 6 B. & C. 657. ' Carruthers v. Sydebotham, 4 Maule & S. 77. ' Attorney-General, v. Case, 3 Price, 302. * Abbott on Shipp. (5th Am. edit.) 278. See the case of the Fama, 2 W. Rob. 84. (a) See also Gen. Steam Nav. Co. v. Guillou, 11 M. & W. 877 ; The Johann Friederich, 1 W. Rob. 85. CHAP. XII.] PASSENGER CABEIEES. — BY WATER. 599 of the United States to the State Legislatures ; and the act of Congress of 1789, ch. 10, expressly recognizes and confirms the regulations made' on this subject by the State Legislatures. ^ (a) § 666. In Eeeves v. The Ship Constitution," in the District Court of the United States, for the Eastern District of Pennsyl- vania, the libellants claimed compensation under the following circumstances : The steamboat William Wray, belonging to the libellants, was employed in towing the ship Constitution, to which she was fastened, up the river Delaware. There was a licensed pilot on board the ship, under whose directions both vessels were steered. In the course of the passage, they came in contact with a schooner sailing on the river, by reason of which the steamboat sustained considerable injury. The libel was dismissed with costs, Judge Hopkinson holding, that where a steamboat is hired for the purpose of towing a vessel to which she is fastened, and both are under the direction of a licensed pilot, the owner of the steam- boat is not entitled to damages on account of injury sustained in the course of the navigation, and not caused by undue negligence of the piolot.^ § 667. It was contended in Massachusetts,^ that the principle which holds the owner of a vessel liable for the acts of the pilot who may have charge of her, would render the owner of a vessel liable for the negligence of the master of a steamboat who has such vessel in charge in the employment of towing her. A schooner called The Triton, it appeared in that case, was lying at anchor in the river Mississippi, a few miles below New Orleans, ' The Carolus, 2 Curtis, C. C. 69. And see Shaw v. Keed, 9 Watts & S. 72. For cases arising under the State pilot laws, see the extensive note to p. 176, of 6th edit, of Kent's Com. It is the duty of the master engaged in the foreign trade, says Kent, to put his ship under the charge of a pilot both on his outward and homeward voyage, when he is within the usual limits of the pilot's employ- ment. The pilot, while on board, has the exclusive control of the ship. He is considered as master pro hac vice, and if any loss or injury be sustained in the navigation of the vessel while under the charge of the pilot, he is answerable, as strictly as if he were a common carrier, for his default, negligence, or unskilful- ness ; and the owner would also be responsible to the injured party for the act of the pilot, as being the act of his agent. 3 Kent, Com. (5th edit.) 176. And see on(e, § 193, note. ' Keeves v. The Constitution, Gilpin, 579. ' Sproul V. Hemmingway, 14 Pick. 1. (a) See Cooley u. Port Wardens, 12 How. 299; Steamship Co. v. Joliffe, 2 Wall. 450, 600 LAW OF CARRIERS. [CHAP. XU. when a steamboat called The Grampus came down, having a ship lashed on each side, and a brig called The Burton towed astern by a hawser of about thirty fathoms in length ; the steamboat, when thus employed, passed so near the schooner that the ship on her larboard side just cleared the schooner, and a collision be- tween the brig and the schooner took place ; for which an action on the case was brought by the owners of the schooner against the owner of the brig. The evidence tended to show, that, in conse- quence of the bad management of those who had charge of the steamboat, the brig in tow, without any culpaple negligence of those who had charge of her, was thrown out of the track of the steamboat, and so caused the collision. In reference to which the jury were instructed, that if the collision took place through the negligence, unskilfulness, or misconduct of those who had charge of the steamboat, the owner of the brig was not liable ; to which instruction the plaintiffs excepted, the jury having found a verdict for the defendant. The question which was raised, the court considered, was, whether the master and crew of the steamboat could be legally considered as the servants of the defendant. The court acknowledged the difficulty of determining what facts and circumstances, in legal contemplation, go to establish the relation of superior and subordinate, or of employer and em- ployee, in such a manner as to give eSect and application to the rule. As the case of a vessel towed by a steamboat was new, and could not have been anticipated by the founders of the Com- mon Law, the court, in deciding the question, applied what they considered to be established principles and analogous cases ; and had recourse to the authorities as reviewed in Bush v. Steinman,^ and Laugher v. Pointer.^ Tried by these principles and authori- ties, it was held the defendant was not responsible for damages attributable to the default of the master and crew of the towing steamboat. " They were not," said Mr. C. J. Shaw, " the ser- vants of the defendants ; were not appointed by him ; did not receive their salaries from him ; the defendant had no power to remove them ; had no power to order or control them in their movements ; had no contract with them, but only through them, with the owners of the steamboat, for a participation in the power derived from the public use and employment of that vessel, by ' Bush V. Steinman, 1 Bos. & P. 404. ' Laugher v. Pointer, 5 B. & C. 547, and ante, § 575. OEAP. XII.] PASSENGER CAERIEES. — BY WATER. 601 her owners. After making such a contract, it was perfectly in the power of the owners of the steamboat to appoint another master, pilot, and crew, and the defendant would have had no cause of complaint." ^ (a) 1 " Nor," said the learned judge (for, on account of the importance of the question, and the probability of its often arising, we give the rest of his able opin- ion), " can the master and crew of the steamboat, in any intelligible sense, be considered as in the employment or business of the defendant, any more than a general freighting ship, her officers and crew, can be considered as in the employ- ment of each freighter of goods, or the master and crew of a ferry-boat, in the employment of the owners of each coach, wagon, or team transported thereon. The steamboat was engaged in an open, public, distinct branch of navigation, that of towing and transporting vessels up and down the Mississippi, for a certain toll or hire, for the profit of the owners. The defendant seemed to have the same relation to the steamboat that a freighter has to a general ship or a passenger to a packet. The defendant participated in the benefit but incidentally and col- laterally ; he did not share in the profits of the business, one which, from its magnitude, may well be called the trade of towing. Such a trade may be con- sidered as much a public and distinct employment as that of freighting or convey- ing passengers. The steamboat was in no sense in the possession of those whom she was employed to tow. If it is contended that the defendant is liable, on the ground that the steamboat was, for the time being, in his possession, occupation, or employment, then it would follow that the defendant would be liable for the negligence of the officers and crew of the steamboat, as well whether the plain- tifi''s vessel was struck by the defendant's vessel, The Burton, as struck by either of the other vessels towed, or by the steamboat herself; which cannot for a mo- ment be' contended. The case may well be illustrated by considering the condi- tion of one of the side vessels, firmly lashed to the steamboat, and governed wholly by its movements. The payment for the privilege of being thus moved or transported is precisely like freight paid for heavy luggage, timber or spars, for instance, carried in or upon a ship. The whole conduct and management is entirely under the control of the master and crew of the towing vessel in the one case, as it is of the freighting ship in the other. If collision takes place between the side ship, thus firmly lashed, and another vessel, it is as directly attributable to the steamboat, and her officers and crew, as if the steamboat herself had come into coUisbu with the other vessel. The towed ship is the passive instrument and means by which the damage is done. But there is no difference, in this respect, between the condition of one of the side ships] and a ship towed astern, except this, that on board a ship towed astern by means of a cable, something may and ought to be done by the master and crew, in steering, keeping watch, observing (a) See The Carolus, 2 Curtis, C. C. 69 ; The Steamboat Eesoue, 2 Sprague, 16; The R. B. Forbes, 1 Sprague, 328, and affirmed in the Circuit Court; Gush- ing V. Ship John Fraser, 21 How. 184; The Christina, 3 W. Eob. 27, affirmed Petley v. Catto, 6 Moore, P. C. 371 ; Smith v. The Creole, 2 Wallace, C. C. 485 ; The Steam-Tug Sampson, 3 Am. Law Register, 337 ; The Duke of Sussex, 1 W. Rob. 270 ; The Gipsey King, 2 W. Rob. 537 ; The Kingston-By-Sea, 3 W. Rob. 152. 602 LAW OF CABRIEES. [CHAP. XH. § 668. But although the owners of the steamboat in the above ease were not liable for their negligence to the owner of the schooner, they would have been liable for their negligence to the owners of the vessels they had in tow for any injury occasioned to them in consequence of it. The owners- of steamboats, when em- ployed in their ordinary business of transporting goods, are liable to the full extent of common carriers ; ^ but whenever they are employed out of the course of such their ordinary business, as in the instance of towing a freight vessel, the owners are held to no more than ordinary careful management, and the law of common carriers is not applicable to them.^ In one case it was held, that the owners of a steamboat who undertook, for hire, to tow a canal- boat and her cargo on the river Hudson, were absolved from the obligation of the exercise of even ordinary care, by a stipulation that the canal-boat was to be towed at the risk of her master ; but that they were still liable for negligence so gross as to be con- founded with fraud.^ If no negligence can be proved on the part and obeying orders and signs ; and if there be any want of care and skill, in the performance of these duties, and damage ensue, then the case we have been con- sidering does not exist ; the damage is attributable to the master and crew of the towed ship, and they and their owners must sustain it. The jury were so in- structed at the trial, and it was left to them to find, whether the damage was caused by the negligence of the one or the other. Then, supposing aU duties faithfully performed on board the towed vessel, and the damage to be caused by the negligence or misconduct of the master and crew of the steamboat,J;here is no difference between the case of the side ship, which is wholly passive, and the ship astern, which is partially so. The case most nearly resembling this, perhaps, is that of a vessel chartered, where for a certain time the whole use and benefit of the ship is transferred to the charterers, but the officers are appointed, and the crew engaged and subsisted by the owners ; in which case it is held, that the own- ers, and not the charterers, are responsible to third persons for any damage occa- sioned by the negligence of the officers and crew." Fletcher v. Braddick, 6 Bos. & P. 182. . • Ante, § 83. ' Caton V. Barney, 13 "Wend. 387 ; Pennsylvania Nav. Co. v. Dandridge, 8 Gill & J. 109 ; and ante, § 86. Even an express promise to tow safely is but an undertaking to tow with ordinary care, and does not create the obligation of a common carrier. Ante, § 60. • Alexander v. Greene, 3 Hill, 1. But in a case in the District Court of the United States for the Eastern District of Pennsylvania, Eane, J. stated consid- erations for holding a steam-tug to the rigid accountability of a common carrier, in opposition to the case of Alexander v. Hill. A captain of a steam-tug is the pilot of the voyage, and is the best judge of the sufficiency of the canal-boat, taken in tow, to resist the weather, and of the adequacy of her crew to do what CHAP. XII.] PASSENGKE CAKEIEES. — BY WATER. 603 of a steamer for damage occasioned in such cases, the owners of course are not responsible either to the yessel in tow or to the owners of a vessel injured by her coming in contact with the ves- sel in tow.-' § 669. Loss by collision of vessels, it must be perceived, has been a difficult subject for discussion and decision, and the evi- dence as to the real cause of collision is of difficult access. The ^ecident usually happens in the darkness of the night, or in a fog, or in a storm, and is necessarily accompanied with confusion and agitation.2 Where the evidence on both sides is conflicting and nicely balanced, Courts of Admiralty are guided by the probabili- ties of the respective cases which are set up ; but the law requires that there should be preponderating evidence to fix the loss on the party charged, .before the court can adjudge him to make compen- sation.^ A priori, the presumption, as we have already said, is, that the master of a vessel would do what was right, and follow the correct and regular course of the navigation.* may be required for her protection, and cannot limit his responsibility by a notice given at the time of commencing the voyage that it must be at the risk of the owner of the canal-boat. The steam-tug, notwithstanding such notice, is bound for the exercise of all that skill and care which the circumstances of the case demand. Vanderslice v. Steam Tow-Boat Superior, 13 Law Kep. 39S. ' The Duke of Sussex, 1 W. Rob. 270. ' 3 Kent, Com. 230. Miscellaneous cases relating to collision : The Freya, 5 Bob. Adm. 75 ; The .Thames, lb. 345 ; The Agricola, 2 W. Rob. 10 ; The Blen- heim, 10 Jur. 79 ; Seccombe v. Wood, 2 Moody & R. 290. Of the effect of a verdict in an action at law on a suit in a Court of Admiralty, with respect to the same collision : The Ann & Mary, 2 W. Rob. 189 ; General Steam Nav Co. v. Tonkin (The Friends), 4 Moore, P. C. 321. Costs in causes of collision : The Washington, 5 Jur. 1067 ; The Itinerant, 2 W. Rob. 244. ' The Ligo, 2 Hagg. Adm. 356. • The Mary Stewart, 2 W. Rob. 244 ; The Alexander Wise, lb. 65. Where it is shown that the vessel charged as the wrong-doer omitted an ordinary and proper measure of prevention, the burden is on her to show that the collision was not owing to her neglect, but would have happened, nevertheless, if the precau- tion had been taken. Thus, where the respondent's vessel was intentionally left at her moorings in a harbor, to encounter an approaching gale, without any per- son on board, and during the night she dragged her anchors, and ran foul of the libellant's vessel, it was held to be incumbent on the respondents to show that the misfortune was not attributable to this cause. Clapp v. Young, U. S. D. C. Mass. 6 Law Rep. 111. A like principle has been asserted by the Supreme Court of the United States, with respect to the non-observance of the precautions against col- hsion enjoined by the act of Congress of July 7, 1838, c. 191 (and see Appx.), and the amendatory of March 3, 1843, c. 94 (and see Appx.). J?he 10th section 604 LAW OF CAEEIEES. [CHAP. Xn. § 670. The testimony of the persons on board the respective vessels is admitted ex necessitate rei, which rule is considered one of the exceptions to the general rules of evidence adopted in Courts of Admiralty, excluding the testimony of a witness directly interested in the event of the suit, (a) Upon this ground the crew of the vessel charged with committing the damage were ad- mitted as witnesses in the case of The Catherine of Dover/ though, being sharers in the profits and loss of the vessel, they would not swear they were disinterested in the result. This exception to the general rule of the law of evidence gave occasion to Sir Wil- liam Scott, afterwards Lord Stowell, to say, that " the testimony of witnesses is apt to be discolored by their feelings, and the in- terest which they take in the success of the cause ; and the court too frequently has to decide upon great diversities of statement as to the courses the vessels were steering, or the quarter from which the wind was blowing at the time when the accident occurred." ^ § 670 a. With respect to damages to be awarded and appor- tioned in cases of collision, the jury, we have seen, when an action at law is brought, may take an equitable view of the facts and cir- of the former act requires the master and owners of every steamboat running be- tween sunrise and sunset to carry one or more signal lights. In a case before the court, which was that of a collision between two steamboats on the Jilississippi River, the respondent's vessel had omitted this precaution, and the court held, that this alone was sufficient to cast the burden of proof to show that the injury done by their steamer was not the consequence of the omission. Waring v. Clark, 5 How. 441. ^ The Catherine of Dover, 2 Hagg. Adm. 145. 2 The Woodrop Sims, 2 Dods. 83. (a) Ch. ISa, acts of 1862, 12 U. S. Stats, at Large, 588, provides : " That the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at Common Law, in equity and admiralty. " Ch. 210, acts of 1864, § 3, 13 U. S. Stats, at Large, 351, provides: " That in the courts of the United States there shall be no exclusion of any witness on account of color, nor in civil actions, because he is a party to, or interested in, the issue tried." This last act is amended by c. 113 of acts of 1865, 13 U. S. Stats, at Large, 533, as follows: " That in actions by or against e-^ecutors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or re- quired to testify thereto by the court." CHAP. XII.] PASSENGER CAUEIEBS. — BY WATER. 605 cumstances,! and such is clearly the principle by which Courts of Admiralty are guided.^ A wilful collision will justify exemplary damages ; but when it is the consequence of the want of due care, or of ignorance, the damages are merely compensatory '.^ The case of Smith V. Condry, in the Supreme Court of the United States,* decides the important principle, that the actual damage sustained at the time and place of the injury, and not the profits which probably might have been realized if the collision had not occured, constitutes the just measure of damages to be awarded to the injured party, (a) § 671. We conclude the perplexed subject of liability for dam- age occasioned by collision of vessels, by warning ship-owners, that it is important for them to bear in mind, that, in case of col- lision, they will not be absolved from the duty of rendering every assistance in their power to the ship which has been in error, for the safety of her cargo and her passengers. It is held, indeed, in ' Ante, §§ 639, 640. " Ante, §§ 641, 642. ' Steamboat Co. v. Whillden, 4 Harring. Del. 228 ; Cummings v. Spruance, lb. 315.- * Smith V. Condry, 1 How. U. S. 28. That the probable profits of the voyage are not the fit mode of ascertaining the damages in cases of marine torts, see The La Amistad de Kues, 5 Wheat. 385. The statute of 53 Geo. 3, c. 159, was passed to limit the responsibility of ship-owners in case of loss or damage from collision or other accident ; the word " ship '' occurs throughout the statute ; in section 1, it is alone ; in the following sections, the expression " value of the ship and her appurtenances " occurs not less than ten times. In a case of collision, The Dundee was at the time sailing on a voyage to the Greenland fishery, having on board the necessary stores and implements for the taking of whales and other fish, and procuring and bringing home in casks the oil and blubber ; a question arose whether section 1 of the statute was to be construed as if the words " with all appurtenances " had been inserted in that clause ; and it was held that it should be so construed, and that whatever was on board of the ship for the object of the voyage and adventure on which she was engaged, belonging to the owner, constituted a part of the ship and her appurtenances within the meaning of that statute, and that the owner was liable to the extent of the value thereof for dam- age done to another vessel in the manner described by the act. Gale v. Laurie, 5 B. & C. 156. (a) This is not now the law. Damages are given for the use of the vessel during the time lost by reason of the collision. Barrett v. Williamson, 4 McLean, C. C. 589 ; Williamson v. Barrett, 13 How. 101, 111 ; Stur^s v. Clough, 1 Wall. 269; The Steamboat Rhode Island, 2 Blatchf C. C. 113; The Clarence, 3 W. Kob. 283. LAW OF CAEEIEKS. [CttAP. Xn. the Admiralty, to be a suspicious circumstance when effort has not been made to help the damaged vessel ; and the owners of The Celt, though not otherwise in fault, were condemned in all costs and expenses of the suit, because the master made no at- tempt to save the ship run down.^ • The Celt, 3 Hagg. Adm. 321. APPEl^PIX. APPENDIX. ACTS OF THE CONGRESS OF THE UNITED STATES REGULATING THE CARRIAGE OF PASSENGERS IN STEAMSHIPS AND OTHER VESSELS. ACT OF 1838, Ch. 191, 5 U. S. STATUTES AT LARGE, 304. An Act to provide for the better Security of the Lives of Passengers on Board of Vessels propelled in whole or in part by Steam. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be the duty of all owners of steamboats, or vessels propelled in whole or in part by steam, on or before the first day of October, one thousand eight hundred and thirty- eight, to make a new enrolment of the same, under the existing laws of the United States, and take out from the collector or surveyor of the port, as the case may be, where such vessel is enrolled, a new license, under such conditions as are now imposed by law, and as shall be imposed by this act. Sec. 2. And be it further enacted, That it shall not be lawful for the owner, master, or captain of any steamboat, or vessel propelled in whole or in part by steam, to transport any goods, wares, and merchandise, or passen- gers, in or upon the bays, lakes, rivers, or other navigable waters of the United States, from and after the said first day of October, one thousand eight hundred and thirty-eight, without having first obtained, from the prop- er ofiicer, a license under the existing laws, and without having complied with the conditions imposed by this act ; and for each and every violation- of this section, the pwner or owners of said vessel shall forfeit and pay to the United States the sum of five hundred dollars, one half for the use of the informer ; and for which sum or sums the steamboat or vessel so engaged shall be liable, and may be seized and proceeded against summarily, by way of libel, in any District Court of the United States having jurisdiction qf the ofience. Sec. 3. And be it further enacted. That it shall be the duty of the dis- trict judge of the United States, within whose district any ports of ent^ or delivery may be, on the navigable waters, bays, lakes, and rivers ^ the 39 610 APPEIJDIX. United States, upon the application of the master or owner of any steam- ■boat or vessel propelled in whole or in part by steam, to appoint, from time to time, one or more persons skilled and competent to make inspections of such boats and vessels, and of the boilers and machinery employed in the same, who shall not be interested in the manufacture of steam-engines, steamboat-boilers, or other machinery belonging to steam-vessels, whose du- ty it shall be to make such inspection when called upon for that purpose, and to give to the owner or master of such boat or vessel duplicate certifi- cates of such inspection ; such persons, before entering upon the duties en- joined by this act, shall make and subscribe an oath or affirmation before said district judge, or other officer duly authorized to administer oaths, well, faithfully, and impartia:lly to execute and perform the services herein re- quired of them. Sec. 4. And be it further enacted, That the person or persons who shall be called upon to inspect the hull of any steamboat or vessel, under the provision of this act, shall, after a thorough examination of the same, give to the owner or master, as the case may be, a certificate, in which shall be stated the age of the said boat or vessel, when and where originally built, and the length of time the same has been running. And he or they shall also state whether, in his or their opinion, the said boat or vessel is sound, and in all respects sea-worthy, and fit to be used for the transportation of freight or passengers ; for which service, so performed upon each and every boat or vessel, the inspectors shall each be paid and allowed, by said master or owner applying for such inspection, the sum of five dollars. Sec. 5. And be it further enacted, That the person or persons who shall . be called upon to inspect the 'boilers and machinery of any steamboat or vessel, under the provisions of this act, shall, after a thorough examination of the same, make a certificate, in which he or they shall state his or their opinion whether said boilers are sound and fit for use, together with the age . of said boilers ; and duplicates thereof shall be delivered to the owner or master of such vessel, one of which it shall be the duty of the said master and owner to deliver to the collector or surveyor of the port whenever he shall apply for a license, or for a renewal of a license ; the other he shall cause to be posted up, and kept in some conspicuous part of said boat, for the information of the public ; and for each and every inspection so made, each of the said inspectors shall be paid, by the said master or owner ap- plying, the sum of five dollars. Sec. 6. And be it further enacted, That it shall be the duty of the owners and masters of steamboats to cause the inspection provided under \the fourth section of this act to be made at least once in every twelve months ; and the examination required by the fifth section, at least once in evety six months ; and deliver to the collector or surveyor of the port where his boat or vessel has been enrolled or licensed the certificate of such in- ACTS RELATING TO STEAMBOATS. 611 spection ; and, on a failure thereof, he or they shall forfeit the license granted to such boat or vessel, and be subject to the same penalty as though he had run said boat or vessel without having obtained such license, to be recov- ered in like manner. And it shall be the duty of the owners and masters of the steamboats licensed in pursuance of the provisions of this act to employ on board of their respective boats a competent number of experi- enced and skilful engineers ; and, in case of neglect to do so, the said own- ers and masters shall be held responsible for all damages to the property of any passenger on board of any boat,, occasioned by an explosion of the boiler or any derangement of the engine or machinery of any boat. Sec. 7. And be if further enacted, That whenever the master of any boat or vessel, or the person or persons charged with navigating said boat or vessel, which is propelled in whole or in part by steam, shall stop the motion or headway of said boat or vessel, or when said boat or vessel shall be stopped for the purpose of discharging or taking in cargo, fuel, or pas- sengers, he or they shall open the safety-valve, so as to keep the steam down in said boiler as near as practicable to what it is when the said boat or vessel is under headway, under the penalty of two hundred dollars for each and every offence. Sec. 8i And be it further enacted, That it shall be the duty of the own- er and master of every steam-vessel engaged in the. transportation of freight or passengers, at sea or on the Lakes Champlain, Ontario, Erie, Huron, Superior, and Michigan, the tonnage of which vessel shall not exceed two hundred tons, to provide and to carry with the said boat or vessel, upon each and every voyage, two long-boats or y*wls, each of which shall be competent to carry at least twenty persons ; and, where the tonnage of said vessel shall exceed two hundred tons, it shall be the duty of the owner and master to provide and carry, as aforesaid, not less than three long-boats or yawls, of the same or larger dimensions ; and for every failure in these par- ticulars the said master and owner shall forfeit and pay three hundred dollars. Sec. 9. And be it further enacted. That it shall be the duty of the master and owner of every steam-vessel employed on either of the lakes mentioned in the last section, or on the sea, to provide, as a part of the necessary fur- niture, a suction-hose and fire-engine and hose suitable to be worked on said boat in case of fire, and carry the same upon each and every voyage, in good order ; and that iron rods or chains shall be employed and used in the navigating of all steamboats, instead of wheel or tiller ropes ; and fop^ a failure to do which, they, and each of them, shall forfeit and pay the gum of three hundred dollars. Sec. 10. And be it further enacted, That it shall be the duty of the master and oyvner of every steamboat, running between sunset and sunrise, to carry one or more signal lights, that may be seen by other boats navigat- ing the same waters, under the penalty of two hundred dollars. 612 APPENDIX. Sec. 11. And be it further enacted, Tha.t the penalties imposed by this act may be sued for and recovered in the name' of the United States, in the District or Circuit Court of such district or circuit where the offence shall have been committed, or forfeiture incurred, or in which the owner or master of said vessel may reside, one half to the use of the informer, and the other to the use of the United States ; or the said penalty may be prosecuted for by indictment in either of the said courts. Sec. 12. And be it further enacted, That every captain, engineer, pilot, or other person employed on board of any steamboat or vessel propelled in whole or in part by steam, by whose misconduct, negligence, or inattention to his or their respective duties, the life or lives of any person or persons on board said vessel may be destroyed, shall be deemed guilty of man- slaughter, and, upon conviction thereof before any Circuit Court in the United States, shall be sentenced to confinement at hard labor for a period not more than ten years. Sec. 13. And be it further enacted. That in all suits and actions against proprietors of steamboats, for injuries arising to person or property from the bursting of the boiler of any steamboat, or the collapse of a flue, or other injurious escape of steam, the fact of such bursting, collapse, or in- jurious escape of steam shall be taken as full prima facie evidence suffi- cient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him, or those in his employment. Approved, July 7, 1838. %' ACT or 1843, Ch. 94, 5 TT. S. STATUTES AT LAUGE, 626. An Act to modify the Act entitled " An Act to provide for the better Secnrity of the Lives of Passengers on Board of Vessels propelled in whole or in part by Steam," approved July seventh, eighteen hundred and thirty-eight. Be it enacted by the Senate and House of Bepresentatives of the United States of America in Congress assembled, That every boat or vessel which existing laws require to be registered, and which is propelled in X whole or in part by steam, shall be provided with such additional appa- i^tus or means, as, in the opinion of the inspector of steamboats, shall be req^iisite to steer the boat or vessel, to . be located in such part of the boat or vessel as. the inspector may deem best to enable the officers and crew to steer and control the boat or vessel, in case the pilot or man at the wheel is driven from the same by fire ; and no boat or vessel, exclusively propelled by stfeam, shall be registered, after the passage of this act, un- less the owner, m^^er, or other proper person shall file with the collector .ACTS EELATING TO STEAMBOATS. 613 or other proper officer the certificate of the inspector, stating that suitable means have been provided to steer the boat or vessel, in case the pilot or man at the wheel is driven therefrom by fire. Sec. 2. And he it further enacted, That it shall be lawful in all vessels or boats propelled in whole or in part by steam, and which shall be pro- vided with additional apparatus or means to steer the same, as required by the first section of this act, to use wheel or tiller ropes, composed of hemp or other good and sufficient material, around the barrel or axle of the wheel, and to a distance not exceeding twenty-two feet therefrom, and also in connecting the tiller or rudder yoke with iron rods or chains used for working the rudder : Provided, That no more rope for this purpose shall be used than is sufficient to extend from the connecting points of the tiller or rudder yoke placed in any working position beyond the nearest blocks or rollers, and give sufficient play to work the ropes on such blocks or rollers : And provided further, That there shall be chains extending the whole distance of the ropes, so connected with the tiller or rudder yoke, and attached or fastened to the tiller or rudder yoke and the iron chains or rods extending towards the wheel, in such manner as will take immediate effect, and work the rudder in case the ropes are burnt or otherwise rendered useless. Sec. 3. And be it further enacted, That the master and owner, and all others interested in vessels navigating Lakes Champlain, Ontario, Erie, Huron, Superior, and Michigan, or any of them, and which are propelled by sails and Erickson's propeller, and used exclusively in carrying freight, shall, from and after the passage of this act, be exempt from liability or fine for failing to provide, as a part of the necessary furniture of such vessel, a suction-hose and fire-engine and hose suitable to be worked on such vessel in case of fire, or more than one long-boat or yawl. Sec. 4. And be it further enacted. That it shall be. lawful for the court before which any suit, information, or indictment is or shall be pending for the violation, before the passage of this act, of so much of the ninth section of the act aforesaid as' requires " that iron rods or chains shall be employed and used in the navigation of all steamboats, instead of wheel and tiller ropes," to order such suit, information, or indictment to be discontinued, on such terms as to costs as the court shall judge to be just and reasonable : Provided, That the defendant or defendants in such prosecution shall cause it to appear, by affidavit or otherwise, to the satis- faction of the court, that he or they had failed to use iron rods or chains in the navigation of his or their boat or boats, from a well-grounded appre- hension that such rods or chains could not be employed for the purpose aforesaid with safety. SfiC. 5. And be it further enacted. That in execution of the authority Tested in him by the second section of the joint resolution " authorizing 614 APPENDIX. experiments to be made for the purpose of testing Samuel Colt's submarine battery, and for other puposes," approved August thirty-first, one thousand eight hundred and forty-two, the Secretary of the Navy shall appoint a board of examiners, consisting of three persons, of thorough knowledge as to the structure and use of the steam-engine, whose duty it shall be to make experimental trials of such inventions- and plans, designed to pre- vent the explosion of steam-boilers and collapsing of flues, as they may deem worthy of examination*, and' report the result of their experiments, with an expression of their opinion as to the relative merits and eflScacy of such inventions and plans, which report the Secretary shall cause to be laid before Congress at its next session. It shall also be the duty of said examiners to examine and report the relative strength of copper and iron boilers of equal thickness, and what amount of steam to the square inch each, when sound, is capable of working with safety ; and whether hydrostatic pressure, or what other plan, is best for testing the strength of boilers, under the inspection laws ; and what limitations as to the force or pressure of steam to the square inch, in proportion to the ascertained capacity of a boiler to resist, it would be proper to establish by law for the more certain prevention of explosions. Sec. 6. And he it further enacted, That so much of the act aforesaid as is inconsistent with the provisions of this act shall be, and the same is hereby, repealed. Approved, March 3, 1843. ACT OF 1852, Ch. 106, 10 tr. S. STATUTES AT LARGE, 61. An Act to amend an Act entitled " An Act to provide for the better Security of the Lives of Passengers on board of Vessels propelled in whole or in part by Steam," and for other Furposes. Sec. 1. No papers to issue to any steamboat carrying passengers till the provisions of this act are complied with. Penalty for navigating such steamboats without com- plying with the provisions of this act. Sec. 2. Precautions against fire. Sec. 3. Provision as to pumps and hose. Sec. 4. Provisioa as. to boats. Sec. 5. Provision for life-preservers, floats, axes, and buckets. Sec. 6. Access to the upper deck. Sec. 7. Provisions respecting carrying certain dangerous articles. License required. Penalty for violation of the provisions. Sec. 8. Same subject. Penalty for putting up for shipment or shipping said articles. Sec. 9. Appointment of an inspector of hulls and an inspector of boilers in certain designated districts. Their qualifications. Their duties. First. Halls of steamboats and their accommodations to be inspected at least yearly. Inspectors may direc' ACTS BELATING TO STEAMBOATS. 615 steamboats to bo pnt in motion. Second. Inspection of boilers. Pressure to which they are to be subjected. Provisions respecting the flues, materials, fire-line, water- line, safety-valves, gauge-cocks, fusible plugs. Third. Mode of subjecting boilers to hydrostatic pressure. Degree of pressure to be allowed. Certified pressure not to be exceeded. Fourth. Form of certificate of inspectors. To be signed and sworn to. Beasons to be given in writing when certificate is refused. Fifth. License to carry gunpowder and other enumerated dangerous articles. License may be revoked. Sixth. Becord to be kept of all certificates pf inspection, whether of approval or disapproval, licenses, and revocations. Originals to be delivered to the collector. Report to be made of all their doings to the supervising inspector. Seventh. Pilots and engineers to be licensed and classified. Eighth. Examination and classification of engineers. Ninth. Examination of pilots. Licenses of engineers and pilots revocable. Appeal firom refusal to grant a certificate of inspection or a license. Tenth. Employment of unlicensed engineers or pilots forbidden (except in certain cases of necessity), under a penalty. Eleventh-. Other inspections than said annual ones to be made. Inspector may then make further requirements. Appeal from such requirements. Penalty for navigating steamers in disregard of such requirements. Where repairs may be made. How far boards of inspectors are bound by the acts of other boards. Twdfih. Inspec- tion of steamers in districts where there is no local board of inspectors. Thirteenth. Power to summon and compel attendance of witnesses. Examination with a view to revocation or suspension of licenses. Fees of witnesses. Paid out of the revennes provided in this act. Fourteaith. Board of inspectors to report all their doings to the chief officer of the cnstoms, and also all omissions or refusals to comply with the law. Fifteenth. PUots, engineers, and mates to assist inspectors in their examinations, to point out imperfections, and to notify them of serious accidents. In default thereof, licenses may be revoked. Sec. 10. Provisions respecting the number of passengers, their food and accommo- dations, and detentions on the voyage. Penalties. Vessel to be released on giving bond. Sec. 11. Penalty for obstructing or deranging the means of regulating or indicating the pressure of steam or approach of danger. Sec. 12. Penalty for allowing the water to fall in the boiler within three inches above the flue. Sec. 13. Boilers to be hereafter made of stamped plates. Sec. 14. Examination of boiler-plates. Qualities of material required. Sec. 15. Boiler-plates to. be stamped with name of manufacturer, &c. Sec. 16. Penalty for making or using boilers made hereafter of unstamped materials. Sec. 17. Penalty for counterfeiting such stamps, and for false stamps. Person using stamp of another to be liable. Sec. 18. Nine supervising inspectors to be appointed. Their qualifications. Their pay and expenses. To meet at least yearly, and to establish rules and assign limits. . Travelling expenses. Transportation of instruments. Secretary of the Treasury to pay them and the local inspectors. Sec. 19. Duties of the supervising inspectors. Masters, engineers, and pilots re- qnired to answer their questions and give information. Sec. 20. Supervising inspectors to report to the local boards violations of this law, and to report failures of the local board to do its duty. Bemoval of delinquent inspector. Sec. 21. Supervising inspectors to supervise the local boards. SjEC. 22. Inspection in districts where there is no local board, or it is incon- venient to resort to it. No inspector to act in any case where he is interested or associated in business with those interested. Inspections by interested inspector to be void. 616 APPENDIX. Sec. 23. Collectors to report to each other names of persons licensed, or refused a license, or whose licenses have been revoked or suspended, and the names of vessels violating this act. Sec. 24. Collectors, &c., and inspectors to enforce this law under penalty of loss of office and a fine. Sec. 2,5. Original certificates of inspection to be kept by the collector, and two Certified copies to be made out, one of which must be kept posted in a conspicuous place in the steamer. Penalty for receiving or carrying passengers where the copy is not so kept posted, or where said dangerous articles are carried without a license and a certified copy thereof kept posted, or are stowed in an nnauthorized manner. Sec. 26. Penalty for false certificate by inspector. Sec. 27. Penalty for navigating a vessel not conforming to the requirements of the certificate. Exception in cases of deficiency from dangers of navigation, if supplied as soon as practicable. Sec. 28. When the navigation of rivers becomes dangerous from fog, &c., or acci- dent to the machinery, the steamer to be stopped. If the commander elects to proceed, he and the owners made liable for all damage to passengers or their baggage. Sec. 29. Supervising board to establish rules for passing. Printed copies thereof to be furnished and kept posted in every steamer. In case of violation or neglect of such rules, delinquent made liable for damage, and to be fined, and the vessel not justified iu case of collision. Sec. 30. Liability for damage to passengers or their baggage. Sec. 31. Pees for certificates of inspection and licenses. To whom paid. To ba accounted for quarterly, and paid into the Treasury. Sec. 32. Each inspector to keep a record of all his doings, and report the same to the collector on the first days of each May and November, t; Seo. 33. Salaries of the district inspectors. Sec. 34. Secretary of the Treasury to provide instruments for testing the strength of boilers. Sec. 35. List of passengers to be kept, and to be open to inspection. Penalty for neglect to keep said list. This penalty, and that for excess of passengers, to be a lien on the vessel. Bond may be given. Sec. 36. Two copies of this act to be furnished to each steamer. Penally for unreasonably refusing to exhibit them to passengers, or not keeping them on board. Sec. 37. Inspectors who receive any fees or rewards. for their services, except those prescribed in this act, to lose their offices, and to be fined or imprisoned, or both. Sec. 38. Pilots and engineers to take an oath before an inspector before entering on the duties of their office. Penalty for perjury of witnesses. Sec. 39. The supervising inspectors to gather information on certain points relating to steamboats, and to transmit the same to the Secretary of the Treasury. Sec. 40. Secretary to cause interrogatories calculated to elicit information on those points to be prepared and published, and to report the result to Congress with his own recommendations on the subject. Sec. 41. Penalties under this act, how sued for and recovered. Sec. 42. This act not to apply, — 1. To public vessels of the United States; 2. To vessels of other countries ; 3. To steamers used as ferry-boats, tug-boats, towing-boals, nor to steamers of not more than one hundred and fifty tons, used iu whole or in part on canals. Inspection and certificate of ocean mail steamers convertible into war steamers to be made by a chief engineer of the navy. Report to be made by him to Secretary of the Navy and the district supervising inspector. , Sec. 43. When this act is to take efiect. Sec. 44. Bepeal of inconsistent acts. ACTS EELATiNG TO STEAMBOATS. 617 Se it enacted ly the Senate and House of Representatives of the United States of America in Congress assembled, That no license, register, or enrolment, under the provisions of this or the act to which this is an amendment, shall be granted, or other papers issued by any collector, to any vessel propelled in whole or in part by steam, and carrying passengers, until he shall have satisfactory evidence that all the provisions of this act have- been fully complied with ; and if any such vessel shall be navigated with passengers on board, without complying with the terms of this act, the owners thereof and the vessel itself shall be subject to the penalties contained in the second section of the act to which this is an amendment. Sec. 2. And be it further enacted, That it shall be the duty of the inspectors of the hulls of steamers, and the inspectors of boilers and engines, appointed under the provisions of this act, to examine and see that suitable and safe provisions are made throughout such vessel to guard against loss or danger from ' fire ; and no license or other papers, on any application, shall be granted, if the provisions of this act for pre- venting fires are not complied with, or if any combustible material liable to take fire from heated iron, or any other heat generated on board of such vessels in and about the boilers, pipes, or machinery, shall be placed at less than eighteen inches distant from such heated metal or other sub- stance likgly to cause ignition, unless a column of air or water intervenes between such heated surface and any wood or other combustible material so exposed, sufficient at all times, and under all circumstances, to prevent ignition ; and further, when wood is so exposed to ignition, as an addi- tional preventive, it shall be shielded by some incombustible material in such manner as to leave the air to circulate freely between such material and the wood. Provided, however, That when the structure of such steamers is such, or the arrangement of the boilers or machinery is such, that the requirements aforesaid cannot, without serious inconvenience or sacrifice, be complied with, inspectors may vary therefrom, if in their judgment it can be done with safety. Sec. 3. And be it further enacted. That every vessel so propelled by steam, and carrying passengers, shall have not less than three double-act- ing forcing-pumps, with chamber at least four inches in diameter, two to be worked by hand and one by steam, if steam can be employed, other- wise by hand ; one whereof shall be placed near the stern, one near the stem, and one amidship ; each having a suitable, well-fitted hose, of at least two thirds the length of the vessel, kept at all times in perfect order and ready for immediate use ; each of which pumps shall also be supplied with water by a pipe connected therewith, and passing through the side •of the vessel, so low as to be at all times in the water when she is afloat : Provided, That, in steamers not exceeding two hundred tons measure- ment, two of said pumps may be dispensed with ; and in steamers of over 618 APPENDIX. two hundred tons, and not exceeding five hundred tons measurement, one of said pumps may be dispensed with. Sec. 4. And he it further enacted, That every such vessel, carrying passengers, shall have at least two good and suitable boats, supplied with oars, in good condition at all times for service, one of which boats shall be a life-boat made of metal, fire-proof, and in all respects a good, sub- stantial safe sea-boat, capable of sustaining, inside and outside, fifty persons, with life lines attached to the gunwale, at suitable distances. And every such vessel of more than five hundred tons, and not exceed' ing eight hundred tons measurement, shall have three life-boats ; and every such vessel of more than eight hundred tons, and not exceeding fifteen hundred tons measurement, shall have four life-boats ; and every such vessel of more than fifteen hundred tons measurement shall have six life-boats ; all of which boats shall be well furnished with oars and other necessary apparatus : Provided, ■ however. The inspectors are hereby authorized to exempt steamers navigating rivers only from the obligation to carry of the life-boats herein provided for more than one, the same being of suitable dimensions, made of metal and furnished with all necessary apparatus for use and safety, such steamers having other suit- able provisions for the preservation of life in case of fire or other disaster. Sec. 5. And he it further enacted. That every such vessel, carrying passengers, shall also be provided with a good life-preserver, made of suitable material, or float well adapted to the purpose, for each and every passenger,' which life-preservers and floats shall always be kept in con- venient and accessible places in such vessel, and in readiness for the use of the passengers; andT* every such vessel shall also kept twenty fire buckets and five axes ; and there shall be kept on board every such vessel, exceeding five hundred tons measurement, buckets and axes after the rate of their tonnage, as follows : on every vessel of six hundred tons measurement, five buckets and one axe for each one hundred tons measurement, decreasing this proportion as the tonnage of the vessel increases, so that any such vessel of thirty-five hundred tons, and all such vessels exceeding the same, shall not be required to keep but three buckets for each one hundred tons of measurement, and but one axe for every five buckets. Sec. 6. And he it further enacted, That every such vessel, carrying passengers on the main or lower deck, shall be provided with sufficient means convenient to such passengers for their escape to the upper deck, in case of fire or other accident endangering life. Sec. 7. And he it further enacted, That no loose hemp shall be carried on board any such vessel ; nor shall baled hemp be carried on the deck or guards thereof, unless the bales are compactly pressed, and well ACTS RELATING TO STEAMBOATS. 619 covered with bagging, or a similar fabric; nor shall gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning-fluids or materials which ignite by friction, be carried on board any such vessel, as freight, except in cases of special license for that purpose, as hereinafter provided ; and all such articles kept on board as stores shall be secured in metallic vessels ; and every person who shall knowingly violate any of the provisions of this section, shall pay a penalty of one hundred dollars for each oflfence, to be recovered by action of debt in any court of com- petent jurisdiction. Sec. 8. And be it further enacted, That hereafter all gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning-fluids and materials which ignite by friction, when packed or put up for shipment on board of any such vessel, shall be securely packed or put up separately from each other, and from all other articles, and the package, box, cask, or vessel containing the same shall be distinctly marked on the outside with the name or description of the articles contained therein ; and every person who shall pack or put up, or cause to be packed or put up, for shipment on board of any such vessel, any gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning-fluids or materials which ignite by friction, otherwise than as aforesaid, or shall ship the same, unless packed and marked as aforesaid, on board of any steam- vessel carrying passengers, shall he deemed guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding eighteen months, or both. Sec. 9. And be it further enacted, That instead of the existing pro- visions of law for the inspection of steamers and their equipment, and instead of the present system of pilotage of such vessels, and the present mode of employing engineers on' board the same, the following regulations shall be observed, to wit : The collector or other chief officer of the cus- toms, together with the supervising inspector for the district, and the judge of the District Court of the United States for the district, in each of the following collection districts, — namely. New Orleans and St. Louis, on the Mississippi Eiver; Louisville, Cincinnati, Wheeling, and Pittsburg, on the Ohio Kiver; Buffalo and Cleveland, on Lake Erie; Detroit, upon Detroit River; Nashville, upon the Cumberland River; Chicago, on Lake Michigan ; Oswego, on Lake Ontario ; Burlington, in Vermont; Galveston, in Texas; Mobile, in Alabama; Savannah, in Georgia; Charleston, in South Carolina; Norfolk, in Virginia; Balti- more, in Maryland ; Philadelphia, in Pennsylvania ; New York, in New York ; New London, in Connecticut ; Boston, in Massachusetts ; Portland, in Maine ; and San Francisco, in California, — shall designate two inspec- tors, of good character and suitable qualifications, to perform the services required bf them by this act, within the respective districts for wtich 620 APPENDIX. they shall be appointed, one of whom, from his practical knowledge of ship-building, and the uses of steam in navigation, shall be fully compe- tent to make a reliable estimate of the strength, sea-worthiness, and other qualities of the hulls of steamers and t'heir equipment, deemed essential to safety of life, when such vessels are employed in the carriage of pas- sengers, to be called the Inspector of Hulls; the other of whom, from his knowledge and experience of the duties of an engineer employed in navigating vessels by steam, and also in the construction and use of boilers, and the machinery and appurtenances therewith connected, shall be able to form a reliable opinion of the quality of the material, the strength, form, workmanship, and suitableness of such boilers and ma- chinery to be employed in the carriage of passengers, without hazard to life, from imperfections in the material, workmanship, or arrangement of any part of such apparatus for steaming, to be called the Inspector of Boilers ; and these two persons thus designated, if approved by the Sec- retary of the Treasury, shall be, from the time of such designation, inspectors, empowered and required to perform the duties herein specified, to wit : — Mrst. Upon application in writing by the master or owner, they shall, once in every year at least, carefully inspect the hull of each steamer belonging to their respective districts and employed in the carriage of passengers, and shall satisfy themselves that every such vessel so submit- ted to their inspection is of a structure suitable for the service in which she is to be employed, has suitable accommodations for her crew and passengers, and is in a condition to warrant the belief that she may be •used in navigation as a steamer, with safety to life, and that all the requirements of law in regard to fires, boats, pumps, hose, life-preservers, floats, and other things, are faithfully complied with ; and, if they deem it expedient, they may direct the vessel to be put in motion,, and may adopt any other suitable means to test her sufficiency and that of her equip- ment. Second. They shall also inspect the boilers of such steamers before the same shall be used, and once in every year thereafter, subjecting them to a hydrostatic pressure, the limit to which, not exceeding one hundred and sixty-five pounds to the square inch for high-pressure boilers, may be prescribed by the owner or the master, and shall satisfy themselves by examination and experimental trials that the boilers are well made of good and suitable material ; that the openings for the passage of water and steam respectively, and all pipes and tubes exposed to heat, are of proper dimensions and free from obstruction ; that the spaces between the flues are sufficient, and that the fire-line of the furnace is below the prescribed water-line of the boilers; and that such boilers and the machinery and the appurtenances may be safely employed in the service ACTS KELATING TO STEAMBOATS. 621 proposed in the written application, without peril to life ; and shall also satisfy themselves that the safety-valves are of suitable dimensions, suffi- cient in number, well arranged, and in good working order (one of which may, if necessary, in the opinion of the inspectors, to secure safety, be ■taken wholly from the control of all persons engaged in navigating such vessel) ; that there is a suitable number of gauge-cocks properly inserted, and a suitable water-gauge and steam-gauge indicating the height of the water and the pressure of the steam ; that in or upon the outside flue of each outside high-pressure boiler, there is placed in a suitable manner alloyed metals, fusible by the heat of the boiler when raised to the highest working pressure allowed, and that in or upon the top of the flues of all other high-pressure boilers in the steamer, such alloyed metals are placed, as aforesaid, fusing at ten pounds greater pressure than said metals on the outside boilers, thereby, in each case, letting steam escape ; and that adequate and certain provision is made for an ample supply of water to feed the boilers at all times, whether such vessel is in motion or not ; so that, in high-pressure boilers, the water shall not be less than four inches labove the flue : Provided, ' however, in steamers hereafter supplied with new high-pressure boilers, if the alloy fuses on the outer boilers at a ■pressure of ten pounds exceeding the working pressure allowed, and at twenty pounds above said pressure on the inner boilers, it shall be a sufficient compliance with this act. Third. That in subjecting to the hydrostatic test aforesaid boilers called and usually known under the designation of high-pressure boilers, the in- spectors shall assume one hundred and ten pounds to the square inch as the maximum pressure allowable as a working power for a new boiler forty- two inches in diameter, made of inspected iron plates. at least one fourth of an inch thick, in the best manner, and of the quality herein required, and shall rate the working power of all high-pressure boilers, whether of great- er 01" less diameter, old or new, acording to their strength compared with this standard ; and in all cases the test applied shall exceed the working power allowed in the ratio of one hundred and sixty-five to one hundred and ten, and no high-pressure boilers hereafter made shall be rated above this standard ; and in subjecting to the test aforesaid that class of boilers usually designated and known as low-pressure boilers, the said inspectors shall allow as a working power of each new boiler a pressure of only three fourths the number of pounds to the square inch to which it shall have been subjected by the hydrostatic test and found to be sufiicient therefor, using ■the water in such tests at a temperature not exceeding sixty degrees Fahren- heit ; but should such inspectors be of the opinion, that said boiler by rea- son of its construction or, material will not safely allow so high a working pressure, they may, for reasons to be stated specifically in their certificate, •fix the working pressure of said boiler at less than three fourths of said 622 APPENDIX. test pressure, and no low-pressure boiler hereafter made shall be rated in its working pressure above the aforesaid standard ; and provided that the same rules shall be observed in regard to boilers heretofore made, unless the proportion between such boilers and the cylinders, or some other cause, renders it manifest that its application would be unjust, in which cases the inspectors may depart from these rules, if it can be done with safety ; but in no case shall the working pressure allowed exceed the hydrostatic test, and no valve under any circumstance shall be loaded or so managed in any way as to subject a boiler to a greater pressure than the amount allowed by the inspectors, nor shall any boiler or pipe be approved which is made in whole or in part of bad material, or is unsafe in its form, or dangerous from defective workmanship, age, use, or any other cause. Fourth. That when the inspection in detail is completed, and the inspec- tors approve of the vessel and her equipment throughout, they shall make and subscribe a certificate to the collector of the district, substantially as follows : — State of District of . Ajpplication having been made in writing by to the subscibers, inspectors for Said district, to examine the steamer of whereof are owners, and is master, we having performed that service, now, on this day of A. D. do certify, that she was built in the year , is in all respects stanch, sea-worthy, and in good condition for navigation, having suitable means of escape in case of accident from the main to the upper deck, that she is provided with (here insert the number of state- rooms, the number of berths therein, the number of other permanent berths for calain passengers, the number of berths for deck or other classes of passengers, the number of passengers of each class for whom she has suit- able accommodations, and in case of steamers sailing to or from any Euro- pean port, or to or from any port on the Atlantic or the Pacific, a distance of one thousand miles or upwards, the number of each she is permitted to carry, — and in case of a steamer saihng to any other port, a distance of five hundred miles or upwards, the number of deck passengers she is per- mitted to carry ; also the number of boilers, and the form, dimensions, and material of which each boiler is made, the thickness of the metal, and when made ; if made after this act takes effect, and of iron, whether they are such in all respects as the act requires, whether each boiler has been tried by a hydrostatic test, the amount of pressure to the square inch in pounds applied to it, whether the amount allowed as the maximum working power was determined by the rule prescribed by this act, if not, the reason for a departure from it ; also the number of safety-valves required, their capacity, the load prescribed for each valve, how many are left in the conti'ol of the pei'sons navigating the vessel, whether one is withdrawn, and the manner ACTS RELATING TO STEAMBOATS. 623 of securing it against interference, also the number and dimensions of sup- ply-pipes, and whether they and the other means provided are sufficient at all times and under all circumstances, when in good order, to keep the water up four inches at least above the top of the iiue ; also the number and dimensions of the steam-pipes, the number and kind of engines, the dimensions of their cylinders, the number and capacity of the forcing-pumps, and how worked, the number and kind of gauge-cocks, water and steam gauges, ■v^here situate, and how secured ; also the manner of using alloyed metals, and the pressure at which they are known by the inspectors to fuse ; the equipments for the extinguishment of fires, including hose, fire-buckets, and axes ; the provisions for saving life in case of accident, including boats, life-preservers, and substitutes therefor, where kept, and all other provisions made on board for the security of the lives of passengers). And we fur- -ther certify, that the equipment of the vessel throughout, including pipes, pumps, and other means to keep the water up to the point aforesaid, hose, boats, life-preservers, and other things, is in conformity with the provisions of law ; and that we declare it to be our deliberate conviction, founded upon the inspection which we have made, that the vessel may be employed as a steamer upon the waters named in the application, without peril to life from any imperfection of form, materials, workmanship, or arrangement of the several parts, or from age or use. And we further certify, that said vessel is to run within the following limits, to wit : from to and back, touching at intermediate places. And which certificate shall be verified by the oaths of the inspectors signing -it, before a person competent by law to administer oaths. And in case the said inspectors do not grant a certificate of approval, they shall state in writing, and sign the same, their reasons for their dis- approval. Fifth. Upon the application of the master or owner of any steamer employed in the carriage of passengers, for a license to carry gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning- fluids and materials which ignite by friction, or either of them, the in- spectors shall examine such vessel, and if they find that she is provided with chests or safes composed of metal, or entirely lined therewith, or one or more apartments thoroughly lined with metal at a secure distance from any fire, they may grant a certificate to that effect, authorizing such vessel to carry as freight any of the articles aforesaid, those of each description to be secured in such chest, safe, or apartment, containing no other article, and carried at a distance from any fire to be specified in the certificate : Provided, That any such certificate may be revoked or an- nulled at any time by the inspectors, upon proof that either of the said articles have been carried on board said vessel at a place or in a manner not authorized by such certificate, or that any of the provisions of this act in relation thereto have been violated. 624 APPENDIX. Sixth, The said inspectors shall keep a regular record of certificates of inspections of vessels, their boilers, engines, and machinery, whether of approval or disapproval, and when recorded the original shall be delivered to the collector of the district ; they shall keep a like record of certificates, authorizing gunpowder, oil of turpentine, oil of vitriol, cam- phene, or other explosive burning-fluids and materials which ignite by friction, or either of them, to be carried as freight by any such vessel ; and when recorded deliver the originals to said collector ; they shall keep a like record of all licenses to pilots and engineers, and all revoca- tions thereof, and shall from time to time report to the supervising inspector of their respective districts, in writing, their decisions on all applications for such licenses, or proceedings for the revocation thereof, and all testimony received by them in such proceedings. Seventh. The inspectors shall license .and classify all engineers and pilots of steamers carrying passengers. Eighth. Whenever any person, claiming to be qualified to perform the duty of engineer upon steamers carrying passengers, shall apply for a certificate, the board of inspeptors shall examine the applicant, and the proofs which he produces in support of his claim ; and if, upon full con- sideration, they are satisfied that his character, habits of life, knowledge and experience in the duties of an engineer, are all such as to authorize the belief that the applicant is a suitable and safe person to be intrusted with the powers and duties of such a station, they shall give him a cer- tificate to that effect, for one year, signed by them, jn which certificate they shall state the time of the examination, and shall assign the appointee to the' appropriate class of engineers. Ninth. Whenever any person claiming to be a skilful pilot for any such vessel shall offer himself for a license, the said board shall make diligent inquiry as to his character and merits; and if satisfied that he possesses the requisite skill, and is trustworthy and faithful, they shall give him a certificate to that effect, licensing him for one year to be a pilot of any such vessels within the limit prescribed in the certificate ; but the license of any such engineer or pilot may be revoked upon proof of negligence, unskilfulness, or inattention to the duties of the station. Provided, however, If, in cases of refusal to license engineers or pilots, and in cases of the revocation of any license by the local board of inspec- tors, any engineer or pilot deeming himself wronged by such refusal or revocation may, within thirty days after notice thereof, on applicalion to a supervising inspector, have his case examined anew by such supervising inspector, upon producing a certified copy of the reasons assigned by the local board for their doings in the premises; and such supervising inspector may revoke the decision of such local board of inspectors, and license such pilot or engineer ; and like proceedings, upon the same con- ACTS RELATING TO STEAMBOATS. 625 dltions, may be had by the master or owner of any such vessel, or of any' steamboat-boiler, for which the said local board shall have refused, upon inspection, to give a certificate of approval, or shall have notified such master or owner of any repairs necessary after such certificate has been granted. ^ Tenth. It shall be unlawful for any person to employ, or any person to serve as engineer or pilot, on any such vessel, who is not licensed by the inspectors ; and any one so offending shall forfeit one hundred dollars for each offence : Provided, however, That if a vessel leaves her port with a cotaplement of engineers and pilots, and on her voyage is deprived of their services, or the services of any of them, without the consent, fault, or collusion of the master, owner, or any one interested in the vessel, the deficiency may^be temporarily supplied, until others, licensed, can be obtained. Eleventh. In addition to the annual inspection, it shall be the duty of said board to examine, seasonably, steamers arriving and departing, so often as to enable them to detect any neglect to comply with the require- ments of law, and also any defects or imperfections becoming apparent after the inspection aforesaid, and tending to render the navigation of the vessel unsafe, which service ihay be performed by one of the board ; and if he shall discover an omission to comply with the law, or that repairs have become necessary to make the vessel safe, he shall at once notify the master, stating in the notice what is required ; and if the master deems the requirements unreasonable or unnecessary, he may take the opinion of the board thereon, and, if dissatisfied with the decision of such board, may apply for a re-examination of the case to the supervising inspector, as is hereinbefore provided ; and if he shall refuse or neglect to comply with the requirements of the local board, and shall, contrary thereto, and while the same remains unreversed by the supervising inspector, employ the vessel by navigating her, the master and owners shall be liable for any damage to the passengers and their baggage which shall occur from any defects so as ^foresaid stated in said notice, which shall be in writing, and all inspections and orders shall be promptly made by the inspectors ; and where it can be safely done, in their judgment, they shall permit repairs to be made where those interested can most conveniently do them ; and no inspectors of one district shall modify or annul the doings of the inspectors of another district, in regard to repairs, upless there is a change in the state of things, demanding more repairs than were thought necessary when the order was made ; nor shall the inspectors of one district appoint a person coming from another, if such person has been rejected for unfitness or want of qualifications. Ticelfth. The said board, when thereto requested, shall inspect steamers belonging to districts where no such board is established ; and if a certifi- 40 626 APPENDIX. 'cate of approval is not granted, no other inspection shall be made by the same or any other board, until the objections made by the inspectors are removed ; and if any vessel shall be navigated after a board of inspectors have refused to make the collector a certificate of approval, she shall be liable to the same penalties as if shejjad been run without a license: Provided, however, That nothing herein contained shall impair the right of the inspectors to permit such vessel to go to another port for repairs, if, in their opinion, it is safe so to do. Thirteenth. The said board of inspectors shall have power to summon before them witnesses, and to compel their attendance by the same pro- cess as in courts of law ; and, after reasonable time given to the alleged delinquent, at the time and place of investigation to examine said wit- nesses under oath, touching the performance of their dt^ies by engineers and pilots of any such vessel ; and if it shall appear satisfactorily that any such engineer or pilot is incompetent, or that life has been placed in peril by reason of such incompetency, or by negligence or ■- misconduct on the part of any such person, the board shall immediately suspend or revoke his license, and report their doings to the chief officer of the cus- toms ; and the said chief officer of the customs shall pay out of the revenues herein provided such sums to any witness so summoned under the provisions of this act, for his actaal travel and attendance, as shall be officially certified, by an inspector hearing the case, upon the back of the summons, not exceeding the rates allowed to a witness for travel and attendance in the Circuit and District Courts of the United States. Fourteenth. That the said board shall report promptly all their doings to the chief officer of the customs, as well as all omissions or refusals to comply with the provisions of law on the part of any owner or master of any such vessel, propelled in whole or in part by steam, carrying passen- gers. Fifteenth. That it shall at all times be the duty of all engineers and pilots licensed under this act, and all mates, to assist the inspectors in the examination of any such vessels to which any such engineer, mate, or pilot belongs, and to point out all defects and imperfections in the hull or apparatus for steaming, and also to make known to them, at the earliest opportunity, all accidents occasioning serious injury to the vessel or her equipment, whereby life may be in danger; and in default thereof the license of any such engineer or pilot shall be revoked. Sec. 10. And he it further enacted. That in those cases where the number of passengers is limited by the inspector's certificate, it shall not be lawful to take on board of any steamer a greater number of passengers than is certified by the inspectors in the certificate ; and the master and owners, or either of them, shall be liable, to any person suing for the same, to forfeit the amount of passage-money and ten dollars for each passenger ACTS RELATING TO STEAMBOATS. 627 beyond the number allowed. And moreover, in all cases of an express or implied undertaking to transport passengers, or to supply them with food and lodging, from place to place, and suitable provision is not made of a full and adequate supply of good and wholesome food and water, and of suitable lodging for all such passengers, or where barges or other craft im- peding the progress are taken in tow, for a distance exceeding five hundred miles, without previous and seasonable notice to such passengers, in all such cases the owners and the vessel shall be liable to refund all the money paid for the passage, and to pay also the damage sustained by such default or delay : Provided, however, That if in any such case a satisfactory bond is given to the marshal, for the benefit of the plaintifi', to secure the satisfac- tion of such judgment as he may recover, the vessel shall be released. Sec. 11. And be if further enacted, ThsXii iheiaasX&v oi a, steamer, ov any other person, whether acting under orders or not, shall intentionally load or obstruct, or cause to be loaded or obstructed, in any way or man- ner, the safety valve or valves of a boiler, or shall employ any other means or device whereby the boiler shall be subjected to a greater pressure than the amount allowed by the certificate of the inspectors, or shall be exposed to a greater pressure, or shall intentionally derange or hinder the operation of any machinery or device employed to denote the state of the water or steam in any boiler, or to give warning of approaching danger, it shall, in any such case, be a misdemeanor, and any and every person concerned therein, directly or indirectly, shall forfeit two hundred dollars, and may, at the discretion of the court, be in addition thereto imprisoned not exceeding eighteen months. Sec. 12. And he it further enacted. That if at any time there be a de- ficiency of water in a boiler, by suffering it to fall below three inches above the flue, as prescribed in this act, unless the same happens through inevitable accident, the master, if it be by his order, assent, or connivance, and also the engineer, or other person whose duty it is to keep up the supply, shall be guilty of an offence for which they shall severally be fined one hundred dollars each ; and if an explosion or collapse happens in consequence of such deficiency, they, or any of them, may be further punished by iipprison- ment, for a period of not less than six nor more than eighteen months. Sec. 13. And he it further enacted, That hereafter all boilers of steam- boats made of iron shall be constructed of plates which have been stamped according to the provisions of this act. Sec. 14. And he it further enacted, That it shall be the duty of such inspectors to ascertain the quality of the material of which the boiler-plates of any such boiler so submitted to their inspection are made ; and to satisfy themselves by any suitable means whether the mode of manufacturing has been such as to produce iron equal to good iron made with charcoal, such as in their judgment may be used for generating steam-power without haz- 628 APPENDIX. ard to life ; and no such boiler shall be approved which is made of unsuif- able material, or of which the manufacture is imperfect, or is not, in their opinion, of suitable strength, or whose plates are less than one fourth of an inch in thickness for a high-pressure boiler of forty-two inches in diameter, and in that proportion of strength according to the maximum of working pressure allowed for high-pressure boilers of greater or less diameter, or which is made of any but wrought iron of a quality equal to good iron made with charcoal. Sec. 15. And he it further enacted, That all plates of boiler-iron shall be distinctly and permanently stamped in such manner as the Secretary of the Treasury shall prescribe, and, if practicable, in such place or places that the mark shall be left visible after the plates are worked into boilers ; with the name of the manufacturer, the quality of the iron, and whether or not hammered, and the place where the same is manufactured. Sec. 16. And he it further enacted, That it shall be unlawful to use, iu such vessel for generating steam for power, a boiler, or steam-pipe connect- ing the boilers, made after the passage of this act, of any iron unless it has been stamped by the manufacturer as herein provided ; and if any person shall make, for use in any such vessel, a boiler of iron not so stamped, in- tended to generate steam for power, he shall for any such offence forfeit five hundred dollars, to be recovered in an action of debt by any person suing for the same ; and any person using or causing to be used in any such vessel such a boiler to generate steam for power shall forfeit a like sum for each offence. Sec. 17. And he it further enacted. That if any persons shall counterfeit the marks and stamps required by this act, or shall falsely stamp any boiler- iron, and be convicted thereof, he shall be fined not exceeding five hundred dollars, and imprisoned not exceeding two years. And if any person or persons shall stamp or mark plates with the name or marks of another, whh intent to mislead, deceive, or defraud, such person or persons shall be liable, to any one injured thereby, for all damage occasioned by such fraud or de- ception. Sec. 18. And he it further enacted, That, in order to carry this act fully into execution, the President of the United States shall, with the ad- vice of the Senate, appoint nine supervising inspectors, who shall be se- lected for their knowledge, skill, and experience in the uses of steam for navigation, and who are competent judges, not only of the character of ves- sels, but of all parts of the machinery employed in steaming, who shall assemble together at such places as they may agree upon, once in each year at least, for joint consultation and the establishment of rules and regulations for their own conduct and that of the several boards of inspectors within the districts, and also to assign to each of the said nine inspectors the limits of territory within which he shall perform his duties. And the said super- ACTS RELATING TO STEAMBOATS. 629 vising inspectors shall each be paid for his services after the rate of fifteen hundred dollars a year, and in addition thereto, his actual reasonable trav- elling expenses, incurred in the necessary performance of his duty when away from the principal. port in his district, and certified and sworn to' by him under such instructions as shall be given by the Secretary of the Treas- ury, who is hereby authorized to pay such salaries, and also such travelling expenses, and the actual reasonable expenses (both to them and other inspec- tors) of transporting from place to place the instruments used in inspections, which expenses shall be proved to his satisfaction. Sec. 19. And he it further enacted, That the supervising inspectors shall watch over all parts of the territory assigned them, shall visit, confer with, and examine into the doings of the several boards of inspectors, and 6hall, whenever they think it expedient, visit such vessels, licensed, and examine into their condition, for the purpose of ascertaining whether the provisions of this act have been observed and complied with, both by the board of inspectors and the master and owners ; and it shall be the duty of all masters, engineers, and pilots of such vessels to answer all reasonable inquiries, and to give all the information in their power, in regard to any such vessel so visited, and her machinery for steaming, and the manner of tnanaging both. Sec. 20. And he it further enacted, That whenever a supervising inspec- tor ascertains to his satisfaction that the master, engineer, pilot, or owners of any such vessel- fail to perform their duties according to the provisions 6f this act, he shall report the facts in writing to the board in the district where the vessel belongs, and, if need be, cause the negligent or offending parties to be prosecuted ; and if he has good reason to believe there has been, through negligence, or from any other cause, a failure of the board who inspected the vessel to do its duty, he shall report the facts in writing io the Secretary of the Treasury, who shall cause immediate investigation into the truth of the complaint, and, if he deems the cause sufiicient, shall remove the delinquent. Sec. 21. And he it further enacted, That it shall be the duty of such supervising inspectors to see that the said several boards within their re- spective collection districts execute their duties faithfully, promptly, and, as far as "possible, uniformly, in all places, by following out the provisions of this act, according to the true intent and meaning thereof; and they shall^ as far as practicable by their established rules, harmonize differences of opinion when they exist in different boards. Sec. 22. And he it further enacted. That the said supervising inspectors shall also visit collection districts in which there are no boards of inspectors, if there be any where steamers are owned or employed, and each one shall have full power to inspect any such steamer or boilers of each steamer in any such district, or in any other district where, from distance or other cause, 630 APPENDIX. it is inconvenient to resort to the local board, and to grant certificates of approval according to the provisions of this act, and to do and' perform in such districts all the duties imposed upon boards in the, districts where they exist : Provided, That no supervising or other inspector shall be deemed competent to inspect in any case where he is directly or indirectly personally interested, or is associated in business with any person who is so interestedy but in all such cases the duty shall be performed. by disinterested inspec- tors, and inspection made in violation of this rule shall be void and of no, eflfect. Sec. 23. And he it further enacted, That it shall be the duty of each of the collectors or other chief officers of the customs for the districts afore- said, except San Francisco, to make known without delay to the collectors of all the said districts, except San Francisco, the names of all persons licensed as engineers or pilots for such vessels, and the names of all persons from whom, upon application, licenses have been withheld, and the names of all whose licenses ''have been revoked or suspended, and also the names of all such vessels which neglect or refuse to make such repairs as may be ordered under the provisions of this act, and the names of all for which license has been, on application, refused. Sec. 24. And he it further enacted, That it shall be the duty of the collectors or other chief officers of the customs, and of the inspectors afore- said, within the said several districts, to enforce the provisions of law against, all such steamers arriving and departing ; and upon proof that any collec- tor or other chief officer of the customs, or inspector, has negligently or intentionally omitted his duty in this particular, such delinquent shall be re- moved from office, and shall also be subject to a penalty of one hundred dollars for each offence, to be sued for in an action of debt before any court of competent jurisdiction. Sec; 25. And he it further enacted, That the collector or other chief officer of the customs shall retain on file all original certificates of the in- spectors required by this act to be delivered to him, and shall give to the master or owner of the vessel therein named two certified copies thereof, one of which shall be placed by such master or owner in some conspicuous place in the vessel, where it will be most likely to be observed by passen- gers and others, and there kept at all times, the other shall be retained by such master or owner as evidence of the authority thereby conferred ; and if any person shall receive or carry any passenger on board any such, steamer not having a certified copy of the certificate of approval, as required by this.act, placed and kept as aforesaid ; or who shall receive or carry any gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning-fluids or materials which ignite by friction, as freight, on board any steamer carrying passengers, not having a certificate authorizing the same, and a certified copy thereof placed and kept as aforesaid ;- or who shall stow ACTS RELATING TO STEAMBOATS. 631 OF' carry any of said articles, at a place or in a manner not authorized by such certificate, shall forfeit and pay for each offence one hundred dollars, to be recovered by action of debt in any court of competent jurisdiction. Sec. 26. And be it further enacted, That every inspector who shall wilfully certify falsely touching any such vessel propelled in whole or in part by steam, and carrying passengers, her hull, accommodations, boilers, engines, machinery, or their appurtenances, or any of her equipments, or any matter or thing contained in any certificate signed and sworn to by him, shall on conviction thereof be punished by fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both. Sec. 27. And be it further enacted, That if any such vessel carrying, passengers, having a license and certificate, as required by this act, shall be navigated without having her hull, accommodations, boilers, engines, ma- chinery, and their appurtenances, and all equipments, in all things conform- able to such certificate, the master or commander by whom she shall be so navigated, having knowledge of such defect, shall be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding two months, or both : Provided, That such master or commander shall not be liable for loss or deficiency occasioned by the dangers of navigation, if such loss or deficiency shall be supplied as soon as practicable. Sec. 28. And be it further enacted, That on any such steamers navir gating rivers only, when from darkness, fog, or other cause, the pilot on watch shall be of opinion that the navigation is unsafe, or from accident to, or derangement of, the machinery of the boat, the engineer, on watch shall be- of the opinion that the further navigation of the vessel is unsafe, the ves- sel shall be brought to anchor, or moored, as soon as it prudently can be done : Provided, That if the person in command shall, after being so ad- monished by either of such officers, elect to pursue such voyage, he may do the same ; but in such case both he and the owners of such steamer shaU be answerable for all images, ^^ich shall arise to the person of any pas- senger and his baggage from said causes in so pursuing the voyage, and no degree of care or diligence shall in such case be held to justify or excuse the person in command, or said owners. Sec. 29. And be it further enacted, That it shall be the duty of the supervising inspectors to establish such rules and regulations, to be observed by all such vessels in passing each other as they shall from time to time deem necessary for safety, two printed copies of which rules and regulations, signed by said inspectors, shall be furnished to each of such vessels, and shall at all times be kept up in conspicuous places on such vessels, which rules shall be observed both night and day. Should any pilot, engineer, or master of any such vessel neglect or wilfully refuse to observe the forego- ing regulations, any delinquent so n.eglecting or i^efusing shall be liable to a penalty of thirty dollars, and to all damage done to any passenger, in his 632 APPENDIX. person or baggage, by such neglect or refusal ; and no such vessel shall be justified in coming into collision with another, if it can be avoided. Sec. 30i And be it further enacted, That whenever damage is sus- tained by any passenger or his baggage, from explosion, fire, collision, or other cause, the master and the owner of such vessel, or either of them, and the vessel, shall be liable to each and every person so injured, to the full amount of damage, if it happens through any neglect to comply with the provisions of law herein prescribed, or through known defects or imper- fections of the steaming apparatus, or of the hull ; and any person sustain- ing loss or injury through the carelessness, negligence, or wilful misconduct of an engineer or pilot, or their neglect or refusal to obey the provisions of law herein prescribed as to navigating such steamers, may sue such engineer or pilot, and recover damages for any such injury caused as aforesaid by any such engineer or pilot. Sec. 31. And be it further enacted, That before issuing the annual li- cense to any such steamer, the collector or other chief officer of the customs for the port or district shall demand and receive from the owner or owners of the steamer, as a compensation for the inspections and examinations made for the year, the following sums, in addition to the fees for issuing enrol- ments and licenses, now allowed by law, according to the tonnage of the vessel, to wit : for each vessel of a thousand tons and over, thirty-five dol- lars ; for each of five hundred tons and over, but less than one thousand tons, thirty dollars ; and for each under five hundred tons and over one hundred and twenty-five tons, twenty-five dollars ; and for each under one hundred and twenty-five tons, twenty dollars, at the time of obtaining regis- try, and once in each year thereafter pay, according to the rate of tonnage before mentioned, the sum of money herein fixed. And each engineer and pilot licensed as herein provided shall pay, for the first certificate granted by any inspector or inspectors, the sum of five dollars, and for each subsequent certificate one dollar, to such inspector or i^^pectors, to be accounted for and paid over to the collector or other chief officer of the customs ; and the sums derived from all the sources above specified shall be .quarterly accounted for and paid over to the United States in the same manner as other revenue. Sec. 32. And be it further enacted, That each inspector shall keep an accurate account of every such steamer boarded by him during the year, and of all his official acts and doings, which in the form of a report he shall communicate to the collector or other chief officer of the customs, on the first days of May and November, in each year. Sec. 33. And be it further enacted, That the inspectors in the following districts shall each be allowed annually the following compensation, to be paid under the direction of the Secretary of the Treasury, in the manner officers of the revenue are paid, to wit : For the district of Portland, in Maine, three hundred dollars. ACTS RELATING TO STEAMBOATS. 63S For the district of Boston and Charlestown, in Massachusetts, eight hun- dred dollars. : For the district of New London, in Connecticut, three hundred dollars. For the district of New York, two thousand dollars. ■ ■ For the district of Philadelphia, in Pennsylvania, one thousand dol- lars. For the district of Baltimore, in Maryland, one thousand dollars. - For the district of Norfolk, in Virginia, three hundred dollars. • For tlie district of Charleston, in South Carolina, four hundred dollars. For the district of Savannah, in Georgia, four hundred dollars. ■ For the district of Mobile, in Alabama, one thousand dollars. - For the district of New Orleans, or in which New Orleans is the port of entry, in Louisiana, two thousand dollars. ' For the district of Galveston, in Texas, three hundred dollars. For the district of St. Louis, in Missouri, fifteen hundred dollars, r For the district of Nashville, in Tennessee, four huhdred dollars. ■ For the district of Louisville, in Kentucky, twelve hundred dollars. c For the district of Cincinnati, Ohio, fifteen hundred dollars. For the district of Wheeling, Virginia, five hundred dollars. For the district of Pittsburg, Pennsylvania, fifteen hundred dollars. For the district of Chicago, Illinois, five hundred dollars. ' For the district of Detroit, Michigan, eight hundred dollars. i For the district of Cleveland, Ohio, five hundred dollars. • For the district of Buffalo, New York, twelve hundred dollars. ■ For the district of Oswego, or of which Oswego is the port of entry, New York, three hundred dollars. For the district of Vermont, two hundred dollars. For the district of San Francisco, California, fifteen hundred dollars. ■ Sec. 34. And be it further enacted, That the Secretary of the Treas- ury shall provide the inspectors with a suitable number of instruments, of uniform construction, so as to give uniform results, to test the strength of boilers. ■ Sec. 35. And be it further enacted, That it shall be the duty of the mas- ter of any such steamer to cause to be kept a correct list of all the passen- gers received and delivered from day to day, noting the places where received and where landed, which record shall be open to the inspection of the inspectors and officers of the customs at all times ; and in case of de- fault, through negligence or design, the said master shall forfeit one hun- dred dollars, which penalty, as well as that for excess of passengers, shall be a lien upon the vessel : Provided, however, A bond may, as provided for in other cases, be given to secure the satisfaction of the judgment. Sec. 36. And be it further enacted, That every master or commander of any such steamer shall keep on board of such steamer at least two copies of 634 APPENDIX. this act, to be furnished to him by the Secretary of the Treasury; and if the master or commander neglects or refuses so to do, or shall unreasonably refuse to exhibit a copy of the same to any passenger who shall ask it, he shall forfeit twenty dollars. Sec. 37. And he it further enacted, That any inspector who shall, upon any pretence, receive any fee or reward for his services rendered under this act, except what is herein allowed him, shall forfeit his office ; and if found guilty, on indictment, be otherwise punished, according to the aggra- vation of the offence, by fine not exceeding five hundred dollars, or impris- onment not exceeding six months, or both. Sec. 38. And he it further enacted, That all engineers and pilots of any such vessel shall, before entering upon their duties, make solemn oath be- fore one of the inspectors herein provided for, to be recorded with the cer- tificate, that he will faithfully and honestly, according to his best skill and judgment, perform all the duties' required of him by this act, without con- cealment or reservatirti ; and if any such engineer, pilot, or any witness summoned under this act as a witness, shall, when under examination on oath, knowingly and intentionally falsify the truth, such person shall be deemed guilty of perjury, and if convicted be punished accordingly. Sec. 39.- And he it further enacted. That the supervising inspectors appointed under the provisions of tliis act shall, within their respective districts, under the direction of the Secretary of the Treasury, take the examination, or receive the statements in writing, of persons of practical knowledge and experience in the navigation of steam-vessels, the construc- tion and use of boilers, engines, machinery, and equipments, touching the form, material, and construction of engines and their appurtenances ; the causes of the explosion of boilers and collapse of flues, and the means of prevention ; the kind and description of safety-valves, water and steam gauges or indicators ; equipments for the extinguishment of fires, and for the preservation of life in case of accident, on board of such vessels, and all other means in use, or proper to be adopted, for the better security of the lives of persons on board vessels propelled in whole or in part by steam ; the advantages and disadvantages of the different descriptions of boilers, engines, and their appurtenances, safety-valves, water and steam gauges or indicators, equipments for the prevention or extinguishment of fires, and the preservation of life in case of accident, in use on board such vessels ; whether any, and what further legislation is necessary or proper for the better security of the lives of persons on board such steam-vessels ; which examination and statements so taken and received shall be transmitted to the Secretary of the Treasury, at such time as he shall prescribe. ACTS RELATING TO STEAMBOATS. 635 RESOLUTION OF SANVARY 7, 1853. Number 5, 10 U. S. Statutes at Laege, 261. A Eesolution allowing in certain Cases to the Owners of Steamers further Time to make the necessary Preparations to bring their Vessels within the Provisions of an Act, entitled " An Act to amend an Act'entitled ' An Act to provide for the better Security of the Lives of Passengers on Board of Vessels propelled in whole or iu, I part by Steam, and for other Purposes,' " approved August thirtieth, eighteen hun- dred and fifty-two. Resolved hy the Senate and House of Bepresentatives of the United States of America in Congress assembled, That any. inspector of steamers appointed under the act aforesaid, if not furnished seasonably with the necessary means of discharging his duty, or who shall be satisfied when an enrolled, licensed, or registered steamer is inspected by him, and found de- ficient in the requirements made by said act, that such omissions are not occasioned by any fault or neglect of the owner or master, he may grant, upon application therefor, or of his own accord, such further reasonable time after said act goes into eflfect, as he may deem sufficient, with due dili- gence, to make all necessary preparations to make any such vessel, her machinery and equipment, conform to the provisions of said act : Provided, The time so allowed shall in no case exceed ninety days after the first day of January, eighteen hundred and fifty-three. Sec. 2. And be it further resolved, That no such vessel allowed further time for preparation shall be liable to seizure, or to any penalty under said act, during the time specified, for any deficiency intended to be covered by the extension of time granted by such inspector. Approved, January 7, 1853. RESOLUTION OF MARCH 3, 1853. ' NuMBEK 13, 10 U. S. Statutes at Labge, 262. A Resolution in Amendment of a Joint Resolution relating to the Duties of Inspec- tors of Steamers, approved the seventh day of January, eighteen hundred and fifty- three. Resolved by the Senate and Souse of Representatives of ike United States of America in Congress assembled, That it shall be the duty of the inspec- tors of steamers to exercise the powers conferred upon them by a joint resolution of Congress, approved the seventh day of January, eighteen hundred and fifty-three, subject to all the restrictions and limitations therein contained : Provided, That the time granted to applicants shall in no case extend beyond the first day of June next. 636 APPENDIX. Sec. 2. And he it further resolved, That the said inspectors may approve of boilers and steam-pipes made prior to the first day of July next, and subsequent to the passage of the act approved the thirtieth of August, eigh- teen hundred and fifty-two, entitled " An act to amend an act entitled ' An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam, and for other purposes,' " if the same be not made with stamped iron : Provided it shall appear that stamped iron could not be reasonably procured. Sec. 3. And he it further resolved, That the said inspectors shall here- after be authorized and empowered, upon satisfactory proof that the owner or owners of a steamer are unable to obtain seasonably, or upon reasonable terms, a metallic life-boat, as required by said act, or that such boat is un- Snited to the navigation in which a steamer is employed, to accept in such case a substitute or substitutes for such metallic life-boat : Provided such substitute shall in their judgment afford safe and suitable means of pre- serving life in case of accident. Sec. 4. And he it further resolved, That no person interested as patentee, in any way, direct or indirect, in life-preservers, life-boats, or any other article required for steamers by the law of August thirtieth, eighteen hun- dred and fifty-two, aforesaid, shall be deemed competent to hold the office of inspector, or to discharge the duties thereof. Approved, March 3, 1853. ACT OF 1855, Ch. 213, 10 \S. S. STATUTES AT LAEGE, 715. An Act to regulate tlie Carriage of Passengers in Steamships and other Vessels. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled. That no master of any vessel owned in whole or in part by a citizen of the United States, or by a citi- zen of any foreign country, shall take on board such vessel, at any foreign port or . place other than foreign contiguous territory (a) of the United States, a greater number of passengers than in proportion of one to every two tons of such vessel, not including children under the age of one year in the computation, and computing two children over one and under eight years of age as one passenger.. That the spaces appropriated for the use of such passengers, and which shall not be occupied by stores or other goods, not the personal baggage of such passengers, shall be in the fol- lowing proportions, viz. : On the main and poop decks or platforms, and in the deck houses, if there be any, one passenger for each sixteen clear superficial feet of deck, if the height or distance between the decks or (a) See act of 1864, c. 249, § 1, 13 U. S. Stats, at Large, 390, post, p. 645. ACTS RELATING TO STEAMBOATS. 637 platform shall not be less than six feet; and on the lower deek (not being an orlop deck), if any, one passenger for eighteen such clear super- ficial feet, if the height or distance between the decks or platforms shall not be less than six feet, but so as that no passenger shall be carried on any other deck or platform, nor upon any deck where the height or dis- tance between decks is less than six feet, with intent to bring such pas- senger to the United States, and shall leave such port or place and bring the same, or any number thereof, within the jurisdiction of the United States ; or if any such master of any vessel shall take on board his vessel, at any port or place within the jurisdiction of the United States, any greater number of passengers than in the proportion afore- said, to the space aforesaid, or to the tonnage aforesaid, with intent to carry the same to any foreign port or place, other than foreign contigu- ous territory as aforesaid, every such master shall be deemed guilty of a misdemeanor, and, upon conviction thereof, before any Circuit or District Court of the United States, shall, for each passenger taken on board beyond the limit aforesaid, or the space aforesaid, be fined in the sum of fifty dollars, and may also be imprisoned, at the discretion of the judge before whom the penalty shall be recovered, not exceeding six months ; but should it be necessary, for the safety or convenience of the vessel, that any portion of her cargo, or any other articles or article, should be placed on, or stored in, any of the decks, cabins, or other places appro- priated to the use of passengers, the same may be placed in lockers or enclosures prepared for the purpose, on an exterior surface impervious to the wave, capable of being cleansed in like manner as the decks or plat- forms of the vessel. In no case, however, shall the places thus provided be deemed to be a part of the space allowable for the use of passengers, but the same shall be deducted therefrom, and in all cases where pre- pared or used, the upper surface of said lockers or enclosed spaces shall be deemed and taken to be the deck or platform from which measure- ment shall be made for all the purposes of this act. It is also provided, that one hospital, in the spaces appropriated to passengers, and separate therefrom by an appropriate partition, and furnished as its purposes re- quire, may be prepared, and, when used, may be included in the space allowable for passengers, but the same shall not occupy more than one hundred superficial feet of deck or platform : Provided, That on board two-deck ships, where the height between the decks is seven and one half feet or more, fourteen clear superficial feet of deck jhall be the pro- portion required for each passenger. Sec. 2. And he it further enacted, That no such vessel shall have more than two tiers of births, and the interval between the lowest part thereof and the deck or platform beneath shall not be less than nine inches, and the berths shall be well constructed, parallel with the sides of the vessel, 638 APPENDIX. ' and separated from each other by partitions, as berths ordinarily: are sep- arated^and shall be at least six feet in length, and at least two feet in width, and each berth shall be occupied by no more than one passenger; bwt double berths of twice the above width may be constructed, each berth to be occupied by no more, and by no other, than two women, or by one woman and two children under the age of eight years, or by husband and wife, or by a man and two of his own children under the age of eight years, or by two men, members of the same family ; and if there shall be any violation of this section in any of its provisions, then the master of the vessel, and the owners thereof, shall severally forfeit and pay the sum of five dollars for each passenger on board of said vessel on such voyage, to be recovered by the United States in any port where such vessel may ar- rive or depart. ^ Sec. 3. And he it further enacted, That all vessels, whether of the United States or any foreign country, having sufficient capacity or space, ! according to law,-for fifty or more passengers (other than cabin passen- gers), shall, when employed in transporting such passengers between the United States and Europe, have, on the upper deck, for the use of such passengers, a house over the passage-way leading" to the apartments al- lotted to such passengers below deck, firmly secured to the deck or comb- ings of the hatch, with two doors, the sills of which shall be at least one foot above the deck, so constructed, that one door or window in such house may at all times be left open for ventilation ; and all vessels so employed, and having the capacity to carry one hundred and fifty such passengers or more, shall have two such houses ; and the stairs or ladder leading down to the aforesaid apartment shall be furnished with a hand-rail of wood or strong rope ; but bOoby hatches may be substituted for such houses. Sec. 4. And be it further enacted, That every. such vessel so- employed, and having the legal capacity for more than one hundred such passengers, shall have at least two ventilators to purify the apartment or apartments occupied by such passengers ; one of which shall be inserted in the after- part of the apartment or apartments, and the other shall be placed in th« forward portion of the apartment or apartments, and one of them shall have an exhausting cap to carry off the foul air, and the other a receiving cap to carry down the fresh air ; which said ventilators shall have a capacity proportioned to the size of the apartment or apartments to be purified, namely, if the apartment or apartments will lawfully authorize the recep- tion of two hui^dred such passengers, the capacity of such ventilators shall each be equal to a tube of twelve inches diameter in the clear, and in pro- portion for larger or smaller apartments ; and all said ventilators shall rise at least four feet six inches above the upper deck of any such vessel, and be of the most approved form and construction ; but if it shall appear, from the report to be made and approved, as hereinafter provided, that ACTS RELATING TO STEAMBOATS. 639 such vessel is equally well ventilated by aiiy other means, such other means of ventilation shall be deemed and held to be a compliance within the pro- visions of this section. Sec. 5. And be it further enacted, That every vessel carrying more than fifty such passengers shall have for their use on deck, housed and conveniently arranged, at least one camboose or cooking-range, the dimen- sions of which shall be equal to four feet long and one foot six inches wide for every two hundred passengers ; and provision shall be made in the manner aforesaid, in this ratio, for a greater or less number of passen- gers; but nothing herein contained shall take away the right to make such arrangements for cooking between decks, if that shall be deemed de- sirable. Sec. 6. And he it further enacted, That all vessels employed as afore- said shall have on board, for the use of such passengers, at the time of leaving the last port whence such vessel shall sail, weU secured under deck, for each passenger, at least twenty pounds of good navy bread, fifteen pounds of rice, fifteen pounds of oatmeal, ten pounds of wheat flour, fifteen pounds of peas and beans, twenty pounds of potatoes, one pint of vinegar, sixty gallons of fresh water, ten pounds of salted pork, and ten pounds of salt beef, free of bone, all to be of good quality ; but at places where 'either rice, oatmeal, wheat flour, or peas and beans cannot be procured, of good quality and on reasonable terms, the quantity of either or any of the other last-named articles may be increased and substituted therefor ; and, in case potatoes cannot be procured on reasonable terms, one pound of either of said articles may be substituted in lieu of five pounds of potatoes ; and the captains of such vessels shall deliver to each passenger at least one tenth part of the aforesaid provisions weekly, commencing on the day of sailing, and at least three quarts of water daily ; and if the passengers on hoard of any such vessel in which the provisions and water herein re- quired shall not have been provided as aforesaid, shall, at any time, be put on short allowance during any voyage, the master or owner of any such vessel shall pay to each and every passenger who shall have been put on short allowance the sum of three dollars for each and every day they may have been put on short allowance, to be recovered in the Circuit or Dis- trict Court of the United States ; and it shall be the duty of the captain or master of every such ship or vessel to cause the food and provisions of all the passengers to be well and properly cooked daily, and to be served out and distributed to them at regular and stated hours,,by messes, or in such other manner as shall be deemed best and most conducive to the health and comfort of such passengers, of which hours and manner of dis- tribution, due and suflicient notice shall be given. If the captain or master of any such ship or vessel shall wilfully fail to furnish and distribute such provisions, cooked as aforesaid, he shall be deemed guilty of a misdemean- 640 APPENDIX. or, and upon conviction thereof before any Circuit or District Court of the United States, shall be fined not more than one thousand dollars, and shall be imprisoned for a term not exceeding one year : Provided, That the en- forcement of this penalty shall not aifect the civil responsibility of the cap- tain or master and owners to such passengers as may have suffered froia said default. Sec. 7. And he it further enacted. That the captain of any such vessel so employed is hereby authorized to maintain good discipline and sudi habits of cleanliness among such passengers as will tend to the preservation and promotion of health ; and to that end he shall cause such regulations as he may adopt for this purpose to be posted up, before sailing, on board such vessel, in a place accessible to such passengers, and shall keep the same so posted up during the voyage ; and it is hereby made the duty of said captain to cause the apartments occupied by such passengers to be kept at all times in a clean, healthy state ; and the owners of every such vessel so emplo)'ed are required to construct the decks and all parts of said apart- ment so that it can be thoroughly cleansed ; and they shall also provide a safe, convenient privy or water-closet, for the exclusive use of every one hundred such passengers. And when the weather is such that said pas- sengers cannot be mustered on deck with their bedding, it shall be the du- ty of the captain of every such vessel to causie the deck occupied by suoh passengers to be cleansed with chloride of lime or some other equally eflS- cient disinfecting agent, and also at such other times as said captain may deem necessary. Sec. 8. And ie it further enacted. That the master and owner or owners of any such vessel so employed, which shall not be provided with the house or houses over the passage-ways, as prescribed in the third section of this chapter, or with ventilators, as prescribed in the fourth section of this chapter, or with the cambooses or cooking-ranges, with the houses over them, as prescribed in the fifth section of this chapter, shall severally for- feit and pay to the United States the sum of two hundred dollars for each and every violation of, or neglect to conform to, the provision of each of said sections ; and fifty dollars for each and every neglect or violation of any of the provisions of the seventh section of this chapter, to be recovered by suit in any Circuit or District Court of the United States, within the ju- risdiction of which the said vessel may arrive, or from which she may be about to depart, or at any place within the jurisdiction of such courts, wherever the owner or owners or captain of such vessel may be found. Sec. 9. And be it further enacted, That the collector of the customs, at any port of the United States at which any vessel so employed shall arrive, or fi'om which any such vessel shall be about to depart, shall ap- point and direct one or more of the inspectors of the customs for such port to examine such vessel, and report in writing to such collector whether ACTS RELATING TO STEAMBOATS. 641 the requirements of law have been complied with in respect to such vessel ; and if such report shall state such compliance, and shall be ap- proved by such collector, it shall be deemed and held as jin'ma/aci'e evi- dence thereof. Sec. 10. And he it further enacted, That the provisions, requisitions, penalties, and liens of this act, relating to the space in vessels appropriated to the use of passengers, are hereby extended and made applicable to all spaces appropriated to the use of steerage passengers in vessels propelled in whole or in part by steam, and navigating from, to, and between the ports, and in manner as in this act named, and to such vessels and to the masters thereof; and so much of the act entitled "An act to amend an act entitled an act to provide for the better security of the lives of passen- gers on board of vessels propelled in whole or in part by steam, and for other purposes," approved August thirtieth, eighteen hundred and fifty-two, as conflicts witlr this act, is hereby repealed ; and the space appropriated to the use of steerage passengers in vessels so as above propelled and navi- gated is hereby subject to the supervision and inspection of the collector of the customs at any port of the United States at which any such vessel shall arrive, or from which she shall be about to depart ; and the same shall be examined and reported in the same manner and by the same officers by the next preceding section directed to examine and report. Sec. 11. And he it further enacted, That the vessels bound from any port in the United States to any port or place in the Pacific Ocean, or on its tributaries, or from any such port or place to any port in the United States on the Atlantic or its tributaries, shall be subject to the foregoing provisions regulating the carriage of passengers in merchant vessels, ex- cept so much as relates to provisions and water ; but the owners and masters of all such vessels shall in all cases furnish to each passenger the daily supply of water therein mentioned ; and they shall furnish a sufficient supply of good and wholesome food, properly cooked ; and in case they shall fail so to do, or shall provide unwholesome or unsuitable provis- ions, they shall be subject to the penalty provided in the sixth section of this chapter, in case the passengers are put on short allowance of water or provisions, (a) Sec. 12. And he it further enacted, That the captain or master of any ship or vessel arriving in the United States, or any of the Territories there- of, from any foreign place whatever, at the same time that he delivers a manifest of the cargo, and, if there be no cargo, then at the time of making report or entry of the ship or vessel pursuant to law, shall also deliver and report to the collector of the district in which such ship or vessel shall arrive, a list or manifest of all the passengers taken on board of the said (o) See act of 1864, c. 249, § 2, 13 U. S. Stats, at Large, 390, post, p. 64 (,. 41 642 APPENDIX. ship or vessel at any foreign port or place ; in which list or manifest it shall be the duty of the said master to designate particularly the age, sex, and occupation of the said passengers respectively, the part of the vessel occupied by each during the voyage, the country to which they severally belong, and that of which it is their intention to become inhabitants : and shall further set forth whether any and what number have died on the voyage, which list or manifest shall be sworn to by the said master, in the Same manner as directed by law in relation to the manifest of the cargo ; and the refusal or neglect of the master aforesaid to comply with the pro- visions of this section, or any part thereof, shall incur the same penalties, disabilities, and forfeitures as are provided for a refusal or neglect to report and deliver a manifest of the cargo aforesaid. Sec. 13. And he it further enacted. That each and every collector of the customs, to whom such manifest or list of passengers as aforesaid shall be delivered, shall quarter-yearly return copies thereof to the Secretary of State of the United States, by whom statements of the same shall be laid before Congress at each and every session. Sec. 14. And he it further enacted, That in case there shall have oc- curred, on board any ship or vessel arriving at any port or place within the United States or ifs Territories, any death or deaths among the passengers (other than cabin passengers), the master, or captain, or owner, or con- signee of such ship or vessel shall, within twenty-four hours after the time within which the report and list or manifest of passengers mentioned in sec- tion twelve of this act is required to be delivered to the collector of the customs, pay to the said collector the sum of ten dollars for each and every passenger above the age of eight years, who shall have died on the voyage by natural disease ; and the said collector shall pay the money thus re- ceived, at such times and in such manner as the Secretary of the Treasury by general rules shall direct, to any board or commission appointed by and acting under the authority of the State within which the port where such ship or vessel arrived is situated, for the care and protection of sick, indi- gent, or destitute emigrants, to be applied to the objects of their appoint- ment ; and if there be more than one board or commission who shall claim such payment, the Secretary of the Treasury, for the time being, shall de- termine which is entitled to receive the same, and his decision in the prem- ises shall be final and without appeal : Provided, that the payment shall, in no case, be awarded or made to any board, or commission, or association, formed for the protection or advancement of any particular class of emi- grants, or emigrants of any particular nation or creed ; and if the master, captain, owner, or consignee of any ship or vessel refuse or neglect to pay to the collector the sum and sums of money required, and within the time prescribed by this section, he or they shall severally forfeit and pay the sum of fifty dollars, in addition to such sum of ten dollars, for each and every ACTS RELATING TO STEAMBOATS. 643 passenger upon whose death the same has become payable, to be recovered by the United States, in any Circuit or District Court of the United States where such vessel may arrive, or such master, captain, owner, or consignee may reside ; and when recovered, the said money shall be disposed of in the same manner as is directed with respect to the sum and sums required to be paid to the collector of customs. Sec. 15. And be it further enacted, That the amount of the several pen- alties imposed by the foregoing provisions regulating the carriage of passen- gers in merchant vessels shall be liens on the vessel or vessels violating those provisions, and such vessel or vessels shall be libelled therefor in any Circuit or District Court of the United States where such vessel or vessels shall arrive. Sec. 16. And he it further enacted, That all and every vessel or vessels which shall or may be employed by the American Colonization Society, or the Colonization Society of any State, to transport, and which shall actually transport, from any port or ports of the United States to any colony or colonies on the. west coast of Africa colored emigrants to reside there, shall be, and the same are hereby, subjected to the operation of the foregoing provisions, regulating the carriage of passengers in merchant vessel. Sec. 17. And he it further enacted, That the collector of the customs shall examine each emigrant ship or vessel, on its arrival at his port, and ascertain and report to the Secretary of the Treasury the time of sailing, the length of the voyage, the ventilation, the number of passengers, their space on board, their food, the native country of the emigrants, the number of deaths, the age and sex of those who died during the voyage ; together with his opinion of the cause of the mortality, if any, on board, and, if none, what precautionary measures, arrangements, or habits are supposed to have had any, and what agency in causing the exemption. Sec. 18. And he it further enacted, That this act shall take effect, with .respect to vessels sailing from ports in the United States, on the eastern side of the continent, within thirty days from the time of its approval ; and with respect to vessels sailing from ports in the United States on the west- ern side of the continent, and from ports in Europe, within sixty days from the time of its approval; and with respect to vessels sailing from ports in other parts of the world, within six months from the time of its approval. And it is hereby made the duty of the Secretary of State to give notice, in the ports of Europe, and elsewhere, of this act, in such manner as he shall deem proper. Sec. 19. And he it further enacted. That from and after the time that this act shall take effect with respect to any vessels, then, in respect to such vessels, the act of second March, eighteen hundred and ninteen, entitled 644 APPENDIX. " An act regulating passenger ships and vessels," the act of twenty-second of February, eighteen hundred and forty seven, entitled " An act to regulate the carriage of passengers in merchant vessels," the act of second March, eighteen hundred and forty-seven, entitled " An act to amend an act entitled ' An act to regulate the carriage of passengers in merchant vessels,' and to determine the time when said act shall take effect " ; the act of thirty-first January, eighteen hundred and forty-eight, entitled " An act exempting ves- sels employed by the American Colonization Society in transporting colored emigrants from the United States to the coast of Africa from the provisions of the acts of the twenty-second February and second of March, eighteen hundred and forty-seven, regulating the carriage of passengers in merchant vessels " ; the act of seventeenth May, eighteen hundred and forty-eight, entitled " An act to provide for the ventilation of passenger vessels, and for other puposes"; and the act of third March, eighteen hundred and forty- nine, entitled " An act to extend the provisions of all laws now in force re- lating to the carriage of passengers in merchant vessels, and the regulation thereof," are hereby repealed. But nothing in this act contained shall in anywise obstruct or prevent the prosecution, recovery, distribution, or remis- sion of any fines, penalties, or forfeituires which may have been incurred in respect to any vessels prior to the day this act goes into effect, in respect to such vessels under the laws hereby repealed, for which purpose the said laws shall continue in force. But the Secretary of the Treasury may, in his discretion, and upon such conditions as he shall think proper, discontinue any such prosecutions, or remit or modify such penalties. Approved, March 3, 1855. ACT OF 1864, Ch. 113, 13 U. S. STATUTES AT LAEGE, 120. An Act to create an additional Snpervising Inspector of Steamboats and two local Inspectors of Steamboats for the Collection District of Memphis, Tennessee, and two local Inspectors for the Collection District of Oregon, and for other Purposes. J5e it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be designated and appointed, in the mode prescribed by law, and who shall be paid the same annual compensation as is now paid, one additional supervising in- spector of steamboats, and two local inspectors of steamboats, at Portland, in the collection district of Oregon, and two for the collection district of Memphis, Tennessee, at an annual compensation of seven hundred dol- lars, to be paid as provided by law, as in case of other like inspectors ; and said inspectors shall perform the duties and be subject to the pro- ACTS RELATING TO STEAMBOATS. 645 visions of the Steamboat Act of August thirtieth, eighteen hundred and fifty-two. Sec. 2. And be it further enacted, That so much of said act as provides for the appointment of two local inspectors of steamboats in the district of Wheeling, on the Ohio River, and for their compensation, is hereby re- pealed. Sec. 3. And be it further enacted, That each engineer and pilot, licensed according to the provisions of said act, shall pay for every certificate granted by any inspector or inspectors the sum of ten dollars, to be ac- counted for in the mode provided by law. Sec. 4. And be it further enacted, That the forty-second section of the act of August thirty, eighteen hundred and fifty-two, be so construed as to require the inspection of the hull and boiler, in the "manner prescribed by that act, of every vessel propelled in whole or in part by steam, and en- gaged as a ferry-boat, tug or towing boat, or canal-boat, in all cases where, under the laws of the United States, such vessels may be engaged in the commerce with foreign nations, or among the several States. Sec. 5. And be it further enacted, That all engineers and pilots of ferry- boats, tug-boats, to wing-boats, or canal-boats, subject to inspection by this act, shall be classified and licensed in the same manner as are pilots and engineers by. said act of August thirty, eighteen hundred and fifty-two. Sec. 6. And be it further enacted. That, in lieu of the fees for inspec- tion required by the thirty-first section of the act of August thirty, eighteen hundred and fifty-two, the following shall be paid : For each vessel of one hundred tons or under, twenty-five dollars, and in addition thereto for each one hundred tons, 9ver the first one hundred tons, five dollars. Sec. 7. And be it further enacted, That all parts of the act aforesaid, which are suspended by or are inconsistent with" this act, are hereby re- pealed. ■Approved, June 8, 1864. ACT OF 1864, Ch. 249, 13 U. S. STATUTES AT LARGE, 390. An Act further to regulate the Carriage of Passengers In Steamships and other Vessels. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the term " contiguous ter- ritory," in the first section of the act entitled " An act to regulate the car- riage of passengers in steamships and other vessels," approved March three, eighteen hundred and fifty-five, shall not be held to extend to any port or place connecting with any inter-oceanic route through Mexico. 646 APPENDIX. Sec. 2. And he it further enacted, That the provisions of the eleventh section of said act be, and the same are hereby, extended to all vessels whose passengers, or any part of them, are or shall be bound fi'om or to any of the ports or places therein mentioned, by way of any overland route or routes through Mexico or Central America. Sec. 3. And he it further enacted, That hereafter there shall be de- livered to masters or owners of vessels three copies of the inspectors' cer- tificates directed to be given them by collectors or other chief officers of the customs, by the twenty-fifth section of the act entitled " An act to amend an act entitled ' An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam,' and for other purposes," approved August thirty, eighteen hundred and fifty-two, one of which copies shall be placed, and at all times kept, by said masters or owners, in some conspicuous place in the vessel, where it will be most likely to be discovered by steerage passengers, and the others as now provided by law ; and the penalty for neglecting or re- fusing to place and keep up such additional copy shall be the same as is provided by the said twenty-fifth section in the other cases therein men- tioned. Sec. 4. And he it further enacted. That the list of passengers required to be kept by section thirty-five of the said act of August thirty, eighteen, hundred and fifty-two, shall also be open to the inspection of any passenger during all reasonable hours ; and that after any clearance is granted, but before the vessel shall be allowed to depart, the master or other person in charge of snch vessel, carrying passengers, shall file with the collector, or other officer of the customs granting the clearance, a list, verified by the oath of the master, or other agent, or owner of the vessel, of all passen- gers received, or to be received, on the vessel so cleared, for conveyance during the proposed voyage, designating cabin and and steerage passengers distinctly ; and on the receipt by such customs officer on the full lists so verified, a departure permit shall be given, without which no vessel con- veying passengers shall go to sea ; and such departure permit shall be shown to the pilot of each vessel before he shall have authority to take the vessel to sea ; and any pilot who shall, without such authority being shown to him, pilot a vessel to sea, shall be subject to a fine of one hundred dol- lars, and a revocation of his license. Sec. 5. And he it further enacted, That the master or commander of any vessel carrying passengers from any port or ports in the United States to any port or place in Mexico or Central America shall, immediately on arriving at such last-mentioned port or place, deliver to the United States consul, vice-consul, or commercial agent at such port two copies of the list of passengers required to be kept on such vessel by said section thirty-five of the act of August thirty, eighteen hundred and fifty-two, embracing all ACTS RELATING TO STEAMBOATS. 647 the passengers oh board the vessel at any time during its voyage up to its said arrival, and duly verified by the oath of such master or commander, and by the inspection of the consul, vice-consul, or commercial agent, pre- vious to or at the landing of the passengerg ; one of which copies the said consul, vice-consul, or commercial agent shall file in his office, and the other of which he shall transmit, without delay, to the collector of the port in the United States from which the vessel last cleared. And if such master or commander shall refuse or neglect to comply with the require- ments of this section, or shall knowingly make a false return of the list of passengers, he, together with the owner or owners of said vessel, shall be subject to a fine of not less than ten thousand dollars, and such fine shall be a lien upon the vessel until paid. Sec. 6. And be it further enacted, That the provisions of section twelve of the act entitled " An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam," ap- proved July seventh, eighteen hundred and thirty-eight, be, and the same are hereby, extended to the owner or owners of any steamboat or other vessel propelled in whole or in part by steam, and to all public officers, by, or in consequence of, whose fraud, connivance, misconduct, or violation of law, the life or lives of any person or persons on board such steamboat or vessel may be destroyed. Sec. 7. And be it further enacted, That if the owner or owners, mas- ter commander, or other person in charge of any steamboat or other vessel, shall wilfully present, or cause to be presented, any false or fraud- ulent list or lists of its passengers, or copies thereof, to any consul, vice- consul, commercial agent, collector, or other custom-house officer, or of the departure permit to any pilot, he or they shall be held guilty of misdemeanor, and on conviction thereof shall be imprisoned for a term not exceeding two years ; and the vessel shall be liable to seizure and forfeiture. Sec. 8. And be it further enacted. That the Secretary of the Treasury shall cause to be prepared a synopsis of such of the laws relating to the carriage of passengers, and their safety on vessels propelled in whole or in part by steam, as he shall think expedient, and have the same printed in convenient form to be framed under glass, and give to any such vessel two copies, on application of its owners or master, who shall, without unneces- sary delay, have the same framed under glass, and place and keep them in conspicuous places in such vessel, in the same manner as is provided by law in regard to certificates of inspectors ; and no clearance shall be issued to such vessel until the collector or other chief [officer] of the customs shall be satisfied that the provisions of this section shall have been complied with by such owners or master ; and in case such owners or master shall neglect or refuse to comply with provisions of this section, he or they shall 648 APPENDIX. furthermore forfeit and pay for each offence one hundred dollars, and such fine shall be a lien upon the vessel until paid. Sec. 9. And he it further enacted, That informers shall be entitled to one half of any penalty or fine collected under this act, or the said act of March third, eighteen hundred and fifty-five, upon their information. Sec. 10. And he it further enacted, That all steamers and other vessels belonging to a citizen or to citizens of the United States, and bound from any port in the United States to any other port therein, or to any foreign port, or from any foreign port to any port in the United States, shall, before clearance, receive on board all such bullion, coin. United States notes and bonds and other securities as the government of the United States or any department thereof, or any minister, consul, vice-consul, or commercial or other agent of the United States abroad shall offer, and shall securely con- vey and promptly deliver the same to the proper authorities or consignees on arriving at the port of destination, and shall receive for such service such reasonable compensation as may be allowed to other carriers in the ordinary transactions of business. Approved, July 4, 1864. ACT OF 1865, Ch. 94, 13 TJ. S. STATUTES AT LARGE, 514. An Act to provide for two assistant local Inspectors of Steamboats in the City of New York, and for two local Inspectors at Galena, Illinois, and to re-establish the Board of local Inspectors at Wheeling ; and also to amend the Act approved June eighth, \, eighteen hundred and sixty-four, entitled " An Act to create an additional Inspector of Steamboats and two local Inspectors of Steamboats for Collection Districts of Memphis and Oregon, and for other Purposes." Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled. That there shall be designated and appointed, in the mode prescribed by law, two assistant local inspec- tors of steamboats in the city of New York, and two local inspectors at the city of Galena, Illinois, with an annual compensation of twelve hundred dollars for the said assistant local inspectors in the city of New York, and eight hundred dollars for the two local inspectors at the city of Galena, Illinois, as in case of other like inspectors ; and said inspectors shall per- form the duties and be subject to the provisions of the Steamboat Act of August thirtieth, eighteen hundred and fifty-two. And the local board of inspectors at Wheeling is hereby re-established. Sec. 2. And he it further enacted, That, in lieu of the fees for inspec- tion prescribed by the sixth section of the act entitled " An act to create an additional supervising inspector of steamboats and two local inspectors of LIBEL IN CASES OF COLLISION. 649 y steambbats for the collection district of Memphis, Tennessee, and two local inspectors for the collection district of Oregon, and for other purposes," approved June eighth, eighteen hundred and sixty-four, there shall be levied and paid for each steam-vessel of one hundred tons or under, twen- ty-five dollars, and in addition thereto for each and every ton,.in excess of one hundred tons, five cents. Sec. 3. And be it further enacted, That all acts or parts of acts incon- sistent with this act are hereby repealed. Approved, March 3, 1865. FORM or A LIBEL IN A SUIT IN REM IN CASES OF COLLISION OF VESSELS UPON THE LAKES. Libel in a Suit in rem, for Damages by Collision, under the Act of February 26, 1845, " ex- tending the Jmisdiction of the District Courts of the United States in certain Cases upon the Lakes and navigable Waters connecting the same." In Admiralty i ^^ '^* J^tdcfe of the District Court of the United States \ for the District of . A. B. of , , owner of the schooner Sylph hereinafter mentioned, exhibits this his libel against the steamboat Vixen (whereof C. D. is or lately was master), now lying in the port of , in the district of , aforesaid, and within the admiralty and maritime jurisdiction of this Hon- orable Court ; her engine, machinery, boats, tackle, apparel, and furniture, and against all persons lawfully intervening for their interest therein, in a cause of collision, civil and maritime. And thereupon the said A. B. doth allege and articulately propound as follows, to wit : First. That the said schooner Sylph is a vessel of more than twenty tons' burden, to wit, of the burden of tons or thereabouts ; and at the time when the cause of action hereinafter mentioned and set forth, arose> was enrolled and licensed for the coasting trade, and was employed in the business of commerce and navigation between ports and places in different States and Territories of the United States, upon the lakes and navigable waters connecting the said lakes. Second. That on the day of , in the year , the aforesaid schooner, being tight, stanch, and well manned and provided, sailed from the port of Sandusky, in the State of Ohio, with a valuable cargo of wheat, on a voyage to the port of Buffalo, in the State of New York. Third. That during the said voyage, to wit, about eleven p. m. of the day of , the said schooner being then about eight miles westerly from Cleveland, with the wind blowing hard from the east-southeast, and the said schooner being close-hauled on the starboard tack, her course lying 650 APPENDIX. < east-northeast, R. T., the first mate of the said schooner, who then had the watch and was the commanding officer on deck, being on the lookout, descried lights ahead, and soon after discovered that they were borne by a steam- boat approaching the said schooner in a southwesterly direction, apparently about one mBe distant, and then bearing about one point on her lee bow. That as soon as the said R. T., mate as aforesaid, had discovered the ap^ proach of the said steamboat, he informed the helmsman of the said schooner thereof, and ordered liim to him to keep her steady, believing that the said steamboat would pass her on the larboard hand. That about three minutes after the said order was given, it became apparent to the said mate that there was ground to apprehend a collision with the said steamboat ; and within one or two minutes thereafter, he became satisfied that such col- lision was inevitable, unless proper means were immediately resorted to by the persons having charge of the said steamboat, to prevent the threatened disaster. Whereupon, the said steamboat having in the mean time ap- proached within speaking distance, the said R. T., mate as aforesaid, instant- ly shouted, " Port your helm ! Stop your engine ! " and several times repeated this request, and continued to do so, in a loud and audible voice, until, about a minute and a half after first hailing the said steamboat, she struck the said schooner, stem on, on her larboard bow, and so greatly injured the said schooner that she immediately began to fill with water, and, in spite of the most strenuous exertion on the part of all on board to keep her afloat, she soon thereafter sunk, and was, with her cargo, totally lost ; her oiBcers and crew having with difficulty saved their lives, by getting on board the said steamboat. Fourth. That the said steamboat by which the said damage had been done proved to be the Vixen aforesaid^ under the command of G. H. as master thereof, and being of about tons burden, bound on a voyage from Buffalo aforesaid to Detroit. That at the time when her lights were first discovered from the Sylph as hereinbefore mentioned, the Sylph carried a light suspended from the outer end of her bowsprit, (a) which remained there until she was struck by the Vixen ; and although there was consider- able haze on the water, the said light could easily have been seen, and, if she kept a good lookout, must have been seen by her at the distance of half a mile, or at least of a quarter of a mile, and in season to have en- abled her to give way for the said Sylph, as she was bound to do, and thereby to prevent a collision therewith. Fifth. That if, at the time the said Vixen was' first hailed from the Sylph, and thenceforth, she had had a proper watch on deck, the warning given by tlie mate of the Sylph as hereinbefore mentioned must have (a) This would not bo sufficient under the act of 1864, chap. 69. The usual allega- tion is : " The lights required by law were duly set." LIBEL IN CASES OF COLLISION. 651 « been distinctly heard on board the Vixen in season to have enabled her, by putting her helm to port, to pass the Sylph in safety ; or, by imme- diately slopping her engine, greatly to diminish the violence of the blow. But instead of so doing, the said steamboat Vixen kept on her previous course ; and although she was running at the rate of twelve knots an hour, her speed was not slackened ; and the aforesaid G. H., master of the said Vixen, admitted to the aforesaid R. T., mate of the Sylph, soon after the said R. T. got on board the Vixen, that her engine had not been stopped. Sixth. That at the time when the danger of a collision between the said vessels was first perceived as aforesaid from the Sylph, it was impossible for her to get out of the way of the said Vixen- ; nor were there any means to which she could with propriety have resorted for that purpose. Seventh. That at the time of the aforementioned loss of the said schooner Sylph and her cargo, the libellant was the true and lawful owner of the said schooner, and of her said cargo ; and that the said schooner was of the value of dollars, and the said cargo was of the value of dollars or thereabouts ; and that by reason of the careless, negli- gent., unskilful, and improper management of the said steamboat Vixen, and of the collision thereby occasioned of the said steamboat with the said schooner Sylph, the libellant hath sustained damages to the amount of dollars or thereabouts, for which he claims reparation in this suit. Eighth. That all and singular the premises are true. Wherefore the libellant prays that process in due form of law may issue against the said steamboat, her engine, machinery, boats, tackle, apparel, and furniture ; and that this Honorable Court will pronounce for the dam- ages aforesaid, and decree the same to be paid with costs, and for such other and further relief and redress as to right and justice may appertain, and the court is competent to give in the premises. (Signed) A. B., Libellant. G. H., Proctor. On the day of , appeared personally A. B., the above-named libellant, and was sworn to the truth of the foregoing libel. Before me, J. K., Glerh [or Gommissioner'^. For damage by collision, a suit in rem and in personam against the of- fending ship and the m'aster, or a suit in personam against the master or the owner, may also be maintained ; and there can be little difficulty in adapting the foregoing precedent to either of these forms of remedy. ENGLISH FORMS OF PLEADINGS BY AND AGAINST CARRIERS. [See Infra, Chaptee X.] From " Law of Carriers," by Chitty & Temple. Gommeneement of a Declaration. In the Queen's Bench ^ \or " Common Pleas," or " Exchequer of Pleas"]. On the day of , A. D. 1856.1 [ Venue.'] A. B. by his attorney [or, " in person "] sues C. D. for that [Aere state the special ground of action commencing a second or subse- quent count]. " And also for that," &c. \_If the plaintiff has any claim recoverable under an indebitatus count, such count should be added to the declaration, commencing'] — " And the plaintiff also sues the defendant for money payable ' by the defendant to the plaintiff for," &c. [ Conclude as follows.] And the plaintiff claims £ . Forms of Indebitatus Counts. A. B. by his attorney, [of in person] sues C. D. for money paya- ble " by the defendant to the plaintiff. For the carriage of goods carried and conveyed by the plaintiff in carts and other vehicles for the defendant at his request.' 1 Every declaration and other pleading must be entitled of the proper court, and of the day of the month in the year when the same was pleaded. Com. Law Proc. Act, 1852, s. .55. Or it may be set aside as irregular if the application for that pur- pose be promptly made. Hodgson v. Eennell, 4 M. & W. 373 ; Mills v. Brown, 9 Dowl. 151 ; Newnham v. Hanney, 5 Ibid. 259. Or the court or a judge may give leave to amend. Com. Law Proc. Act. b. 222. ^ The omission of these words would make the declaration bad on general demur- rer. Place V. Potts, 8 Exch. 705, unless, perhaps, where the plaintiff's claim is founded on an account stated. Tagg v. Nudd, 3 Ell. & B. 650. But the defect is cured by verdict, or by defendants pleading over. Wilkinson v. Sharland, 24 Law J. Exch. 116. The whole of the money claims form but one count on several executed considerations. M'Gregor v, Gnives, 3 Exch. 34. ' The breach of an agreement to carry goods in consideration of the carriage of FORMS OF PLEADINGS. 653 For the tonnage of goods carried by the plaintiff on a certain canal in boats and vessels for the defendant at his request.' For freight (primage and average,^ if claimed), for the conveyance by the plaintiff for the defendant, at his request, of goods in ships.' For the demurrage of a ship of the plaintiff kept on demurrage by the defendant.* For the lighterage, and for the shipping, conveyance, and landing of goods by the plaintiff for the defendant at his request. ■ For wharfage and warehouse room for goods provided by the plaintiff for the defendant at his request. For the passage of the defendant in and on board of a certain vessel of the plaintiff at the request of the defendant. For money had and received by the defendant for the use of the plain- tiff.« For money paid by the plaintiff for the defendant at his request. And for money found to be due from the defendant to the plaintiff upon accounts stated between them. And the plaintiff claims £ . Declaration, in Contract against a Carrier for not carrying and delivering Goods within a Time agreed upon.^ For that the defendant, before and at the time of the making of his other goods, which is executed by the carriage of the goods, will not siippoi-t this count, because the defendant was not to pay money. Atkinson ». Smith, 1-1 M. & W. 695 ; Bracegirdle v. Hinks, 9 Exch. 381 ; 2 Com. Law Rep. 991. 1 3 Wentw. 70. 2 ^^g^ cd. X. ' This is the form given by the Com. Law Proc. Act, 1 852, bat a delivery must be proved where it Is sought to charge the consignee or indorsee of the bill of lading. Ante, Ch. X. * As to the claim for demun-age, Ante, Ch. X. ; where there is a contract express or implied to pay demurrage, this count will suffice if the contract is not under seal. Lear ». Yates, 3 Taunt. 389. If there be no contract, but the defendant has detained the vessel longer than is allowed by usage of the port of discharge, the action should be special.- Per Parke, B., Horn v. Bensusan, 2 M. & Rob. 326 ; 9 C. & P. 709, S. C. ; Kell V. Anderson, 10 M. & W. 499, per Lord Abinger. Nor will this form be proper where the detention is ex delicto. Harrison v. Wilson, 2 Esp. E. 707. See form of declara- tion by the master of a ship on the bill of lading against the consignee for not receiv- ing the goods from the ship in a reasonable time. Chit. Jun. Prec. Pleading, 99 ; Granger v. Dacie, 12 M. & W. 432. ^ When an excessive sum has been demanded by a carrier for the carriage of goods, and paid under protest, the excess may be recovered back under this count, although the plaintiff made no tender of any specific sum for the carriage of the goods. Ashmole v. Wainwright, 2 Q. B. 837. Ante, Ch. X. ' The law implies a duty on the part of a common carrier to deliver goods in a rear sonable time; and where a defendant is charged upon a breach of such duty, the form of declaration may be varied to meet the case of any special contract for the car- riage of the same. 654 APPENDIX. promise hereinafter mentioned, was a common carrier of goods for hire, that is to say, from Aylesbury to London, and in consideration that the plaintiff would deliver to him as such carrier, at his request, certain goods of the plaintiff, that is to say [twelve baskets containing poultry and butter], to be carried by the defendant from Aylesbury to London, and there to be delivered by the defendant to the plaintiflF for reward to the defendant, the defendant promised the plaintiff to carry the said goods from Aylesbury to London, and there deliver the same to the plaintiff .before o'clock of the day then following, and although the plaintiff delivered the said goods to the defendant, and he received the same for the purpose aforesaid, yet the defendant did not carry or deliver the said goods within the time afore- said, and the said goods were not delivered to or received by the plaintiff until the expiration of a long time after the same should have been deliv- ered to him. Whereby the said goods were damaged and spoiled, and the plaintiff also lost a market and the means and opportunity of selling the same, and was deprived of divers profits which otherwise would have ac- crued to him, and thereby also the plaintiff incurred expenses in endeavor- ing to obtain the said goods.^ And the plaintiff claims £ . Declaration in Contract against a Carrier by Water for not delivering Goods or giving the Consignee Notice of their Arrival, according to his Contract. For that, in consideration that the plaintiff, at the request of the defend- ant, had caused to be delivered to him certain goods of the plaintiff, that is to say [twenty bales of bacon], to be by the defendant carried in a certain barge or vessel from ■ to , in order that upon their arrival there the goods might be forwarded or sent or delivered by the defendant to one , at , and there, delivered to him for the said plaintiff, or other- wise that the defendant might upon the arrival of the said goods at , or within a reasonable time then next following, notify such arrival to the said at aforesaid, for reward to the defendant in that behalf, he the defendant promised the plaintiff to convey such goods to afore- said, and that he the defendant would within such reasonable time forward or send or deliver the same to the said as aforesaid, or notify or cause to be notified to the said at aforesaid the arrival of the said goods at aforesaid, and although the defendant had and received the said goods for the purpose aforesaid, and although afterwards the defendant conveyed the goods to , and they then arrived there, and although a reasonable time for forwarding and sending, or delivering the same, or no- 1 Any special damage sustained by the plaintiff, must be averred. See a form, Pickford v. Grand Junction Railway Co., 12 M. & W. 766. But the damage must not be too remote. Ante, Ch. X. and Mann v. The General Steam Navigation Co., Exch. Jan. 2S, 1856. FORMS OF PLEADINGS. 655 tifying the arrival thereof as aforesaid, had elapsed before the commence- ment of this suit, yet the defendant, not regarding his said promise, did not forward or send or deliver the said goods for the plaintiff to the said at aforesaid, within such reasonable time as aforesaid, or at any other time, or notify or cause to be notified to the said within such reason- able time, or at any other time, such arrival of the .said goods ; but the defendant wholly neglected and refused so to do, and wrongfully detained the same in his possession for a long and unreasonable time, without send- ing or forwarding or delivering the said goods, or causing them to be de- livered to the said for the said plaintiff, or otherwise notifying or causing to be notified to the said the arrival of the same as aforesaid, and by reason thereof the said refused and declined to accept and purchase and pay for the same, as he otherwise would have done for divers large sums of money, whereby the plaintiflT hath been deprived of the gains and profits which would otherwise have accrued to him, and hath lost other opportunities of disposing of the said goods for divers large sums of money, and the benefit of the profits which would otherwise have arisen therefrom, and hath incurred expenses in endeavoring to obtain the goods, and the same are injured and lessened in value. And the plaintiff claims £ . Declaration in Tort, against a Carrier on his Gommon-Law lAahility for refusing to carry Goods} For that the defendant was a common carrier of goods for hire from ■ to , and the' plaintiff, at a reasonable and proper time in that behalf, tendered and offered to the defendant at aforesaid, at the place used by him in the way of his said business for the receipt of parcels and goods to be carried by him as such carrier, certain goods of the plaintiff, that is to say, , and requested the defendant, as such common carrier, to carry the same from to aforesaid, for reward to the defendant in that behalf, and the plaintiff was then ready and willing ^ to pay to .the defendant his reasonable hire and reward in that behalf, of which the de- fendant had notice ; and although the defendant could and ought to have received and carried the said goods, and had ample room and convenience and accommodation for receiving and carrying the same, and the said goods were of a description usually carried by the said defendant, yet the defendant, not regarding his duty ' in that behalf, did not nor would, al- 1 As to the duty of carriers to receive and carry all goods offered to them, and when they are excused from doing so. Ante, Ch. X. ^ It is not necessary to aver a tender of the price of carriage ; a readiness to pay is sufficient. Ante, Ch. X. ^ It is not necessary to aver what the duty is ; this is implied from the allegation that the defendant was a common carrier of goods for hire. Ante, Ch. X. 656 APPENDIX. though he then received and carried goods for other persons, receive and carry the said goods for the plaintiff, but wholly refused so to do, whei-eby, &c. \_Here allege any special damage sustained hy the plaintiff} As to the damage, ante, 142.] And the plaintiff claims £ . [(Sse Form of Declaration in Tort against Railway Companies as Com- mon Carriers, for refusing to carry Goodsy\ Form of Declaration in Tort for not delivering Goods in a reasonable Time, and for Loss of the Goods? For that the defendant was a common carrier of goods for hire from to , and the plaintiff delivered to the defendant, and he received, as such carrier, goods of the plaintiff [that is to say, a hamper of wine], to be carried by the defendant, as such common carrier, from to aforesaid, and there to be delivered by the defendant for the plain- tiff within a reasonable time, in that behalf* for reward to the defendant; yet the defendant, neglecting his duty ' as such common carrier, did not safely or securely carry or convey the said goods from to aforesaid, nor safely or securely deliver the same there for the plaintiff, although a reasonable time for doing so had elapsed before the com- mencement of this suit : but then negligently and improperly ^ lost the said goods. And the plaintiff claims £ . A shorter Form of Declaration against a Common Carrier for losing or damaging Goods. For that the defendant lost [or damaged] the plaintiff's goods, that is to say, , which the plaintiff had delivered to the defendant as a com- 1 See special damage alleged in Pickford o. Grand Junction Railway Co., 8 M. & W. 372. 2 Pickford v. Grand Junction Railway Co., 8 M. & W. 372, 9 Dowl. 766, S. C. ; Crouch V. The London and North-Western Railway Co., 14 Com. B. 255 ; Crouch v. The Great Northern Railway Co., 9 Exch. 556. ' See a form of declaration against a railway company for loss of a parcel. Mus- champ V. Lancaster, &c. Railway Co., 8 M. & W. 422 ; Palmer v. Grand Junction Railway Co., 4 M. & W. 749, 7 Dowl. 232, S. C. Against a cabman for loss of a passenger's Inggage. Ross a. Hill, 2 Com. B. 877. Against a earner from the London terminus of a railway for the loss of goods. Coats v. Chaplin, 3 Q. B. 483. * This duty to deliver in a reasonable time is implied by law. Raphael v. Pickford, 5 M. & G. 556, 2 Dowl. N. S. 917, S. C. ' The declaration need not aver what such duty is ; it is implied by law. Per Maulc, J., Benett v. Peninsula and Oriental Steamboat Co., 6 Com. B. 785 ; Brown v. Malleit, 5 Com. B. 599. * It is not necessary to aver or prove negligence against a common carrier when charged on his common-law liability. Ante, Ch. X. FORMS OF PLEADINGS. 657 mon carrier of goods for hire, and which he had received as such carrier, to be carried by him for the plaintiff for reward to the defendant in that behalf. Declaration in Tort against a Railway Company for Loss of a Passen- ger's Luggage? For that the defendants were the owners and proprietors of a certain railway, called [the London and Brighton Railway,] and of certain car- riages used by them for the carriage and conveyance of passengers and goods upon the said railway, for hire and reward to them the said defend- ants in that behalf, and thereupon the plaintiff became and was received by the said defendants as a passenger in one of the said carriages of the defendants, at their request, to be by them safely and securely carried thereby, together with his luggage, that is to say, [a certain portmanteau containing the wearing apparel of the plaintiff,] on a certain journey from London to Brighton, for reward to the defendants in that behalf, yet the defendants, not regarding their duty in that behalf, did not use due and proper care in and about the carriage and conveyance of the plaintiff's said luggage by and upon the said railway from London to Brighton aforesaid,^ but wrongfully lost the same. And the plaintiff claims £ . Declaration against the Qaptain of a Vessel on the Bill of Lading.^ For that the plaintiff, at the request of the defendant, caused to be delivered to the defendant divers goods, that is to say, [Acre specify them,] of the plaintiff, to be carried by the defendant in and by a cer- tain ship of the defendant called , from to , and there to be delivered to the plaintiff for freight and reward to the defendant in that behalf (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted).' And the defendant then received the same accordingly, for the purpose aforesaid ; and although the said ship afterwards safely arrived at aforesaid, and no act of '■ Carriers of passengers are, with respect to tlie luggage of passengers, liable in the same degree as common carriers of goods. Ante, Ch. X. ^ This averment of negligence is not necessary. Ante, Ch. X. 2 See another form, Colvin v. Newberry, 8 B. & C. 166. See a, form of declaratioa for bad stowage, Major v. White, 7 C. & P. 41 ; Anderson v. Chapman, 5 M. & W. 483 ; 7 Dowl. 822, S. C. And see form against ship-owner for negligent delay by the captain, Leslie v. Wilson, 6 Moore, 415, 3 B. & B. 171, S. C. * This must agree with the terms of the bill of lading. See the form of a bUl of lading, ante, Ch. X 42 658 APPENDIX. . God, nor the Queen's enemies, nor fire, nor any danger or accidents of the seas, rivers, or navigation, prevented the safe carriage or delivery of the said goods as aforesaid, yet the defendant did not deliver the said goods to the plaintiff, but so negligently, carelessly, and improperly con- ducted himself in this behalf, that, for want of due care in the defendant and his servants in that behalf, the said goods became and were wholly lost to the plaintiff. And the plaintiff claims £ . Declaration in Tort against the Master of a Vessel for a Deviation during the Voyage, whereby the Vessel was wrecked and the Plaintiff's Goods lost} For that the plaintiff delivered to the defendant, then being the mas- ter of a certain ship called , and the defendant received from the plaintiffs on board of the said ship certain goods of the plaintiff, that is to say, [here describe the goods,"] to be by the defendant carried in the said ship from to (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and naviga- tion, of whatever nature or kind soever, excepted),^ for reward, to be therefor paid by the plaintiff to the defendant ; and the defendant de- parted and set sail with the said ship, with the said goods on board of the same. Yet the defendant, not regarding his duty in that behalf, did not proceed with the said ship from to aforesaid [although not prevented by the acts, matters, and things excepted as aforesaid, or any of them], by and according to the direct, usual, and customary way and passage, without any voluntary and unnecessary deviation or departure from or delay or hindrance in the same, but, on the contrary thereof, after- wards, and before the arrival of the said ship at , without the knowl- edge, and against the will of the plaintiff, voluntarily and unnecessarily deviated and departed from and out of such usual and customary way, course, and passage with the said ship, so having the said goods on board of the same. And the said ship, so having the said goods on board of the same as aforesaid, was, by i-eason of such deviation, departure, and before her arrival at aforesaid, exposed to and assailed by a great ttorm and a great and heavy sea, and was thereby driven on shore, wrecked, and greatly shattered and broken^ and by means thereof the said goods of the plaintiff were wetted, damaged, spoiled, sunk in the sea, and wholly lost to the plaintiff. And the plaintiff claims £ . 1 As to the law on this subject, see ante, Ch. X. '^ According to the terms of the bill of lading, if any, under which the goods were shipped. FORMS OF PLEADINGS. 659 Declaration in Tort against a Ferryman for negligently landing Goods} Declaration in Tort against a Carrier hy Water for Damage done to a Cargo? Declaration for the wrongful Conversion of Goods? For that the defendant converted to his own use and wrongfully de- prived the plaintiff of the use and possession of the plaintiff's goods, that is to say, " a portmanteau containing wearing apparel " [or other short description of the goods']. And the platntiff claims £ . Declaration for the wrongful Detention of Goods.* For that the defendant detained from the plaintiff the goods of the plaintiff, that is to say, a deed box containing the title-deeds and writ- ings relating to a certain estate called Mount Pleasant, in the county of Kent, that is to say, a certain indenture made between, &c. [describing the deeds shortly as in a schedule of them ^J ; and the plaintiff claims a re- turn of the said goods, or their value,^ and £ for thpir detention. Declaration in Contract against a Coach Proprietor for not carrying a Passenger? For that the defendant was the owner and proprietor of a certain stage- coach, going and passing from to , for the carriage and convey- ance therein of passengers and their luggage for hire ; and thereupon, in consideration that the plaintiff, at the request of the defendant, would take and engage a place or seat in the said coach of the defendant, to be carried and conveyed therein as a passenger, from to , together with his luggage, at and for certain reasonable hire or reward, to be [or, if already paid, omit to be] therefore paid by the plaintiff to the defendant, he the de- 1 Walker v. Jackson, 10 M. & "W. 161. 2 Bennion v. Davison, 3 M. & W. 183. ' As to when this form of declaration is sustainahle, and what amounts to a con- version, see ante, Ch. X. Eastern Counties Railway, Co. v. Brown, 6 Exch. 314, 20 Law J. 196. * This action lies although the defendant wrongfully parted with the goods before the commencement of the action. Jones v. Dowle, 9 M. & W. 19. s As to the description of the goods, see Graham v. Gracie, 13 Q. B. 548 ; 2 Saund. 74 e. It is not necessary to mention the date of a deed. Alcorn v. WestbrooK, 1 Wils. 116. 8 The value of the goods must be assessed by the jury, and, if several articles are sought to be recovered, the value of each should be separately assessed. Phillips v. Jones, 15 Q. B. 780; Williams v. Archer, 5 Com. B. 358. As to the writ of execu- tion, see ante, Ch. X. ' ' See other forms against stage-coach proprietors. 2 Chit, on Pleading, 266. 660 APPENDIX. fendant promised the plaintiff to carry and convey the plaintiff, together with his said luggage^ in and by the said coach or carriage, from to aforesaid, and the plaintiff saith that, although he.did take and engage a place or seat in the said coach or carriage, to be carried and conveyed, together with his said luggage, in and by the said coach or carriage, from to aforesaid, and although the plaintiff was ready and willing to be carried and conveyed, together with his said luggage, jn or by the said coach, from to aforesaid, and the plaintiff then requested the defendant to carry and convey the plaintiff, together with his said luggage, in or by the said coach, from aforesaid to aforesaid, yet the defendant did not nor would, when he was so requested as aforesaid, or at any other time, carry or convey the plaintiff, together with his said luggage, or otherwise, in or by the said coach, from to aforesaid ; but then wholly neglected and refused so to do, whereby he the plaintiff was forced and obliged to procure another conveyance to aforesaid, and was thereby put to great trouble and inconvenience, and to great expense of his moneys, and was and is otherwise greatly injured and damnified. \^State any special damage the plaintiff may have sustained^ Add an indebitatus count for money had and received to recover back the fare, if any paid by plaintiff to the defendant, and on an account stated.^ And the plaintiff claims £ . Declaration in Tori against a Steamboat Company who were Carriers of Passengers, for refusing to carry the Plaintiff} For that the defendants were possessed of a certain steam-vessel called the " Montrose," lying at Southampton, and about to sail for a place beyond the seas, to wit, Gibraltar, in Spain, for the carriage of passengers from Southampton to Gibraltar; and the plaintiff was desirous of becoming a passenger in and on board of the said steam-vessel, from Southampton to Gibraltar ; and at a reasonable and proper time, in that behalf tendered himself to the defendants at Southampton aforesaid, to be carried by them as such passenger, in and on boai'd the said steam-vessel, from Southamp- ton to Gibraltar ; and requested the defendants to receive him as such pas- senger in and on board the said steam-vessel, to be carried, and to carry him from Southampton to Gibraltar ; and the plaintiff was then in a fit and proper state to be carried by the defendants as such passenger, and was ready and willing to pay the defendants all reasonable passage-money, hire, 1 This was the form of declaration in Benett i;. The, Peninsular and Oriental Steam- boat Co., 6 Com. B. Rep. 775, and ante, Ch. X. And may be readily altered so as to charge a railway company or other carrier by land. See also a form of declarationi against the captain of a ship for excluding the plaintiff, a passenger, from the cuddy. Prendergast v. Compton, 8 C. & P. 454, cited, ante, Ch. X. FORMS OF PLKADINGS. 661 and reward for being carried by them as such passenger from Southampton to Gibraltar, of which the defendants had notice, and although the defend- ants had sufficient room and accommodation in and on board the said steam- vessel, to receive the plaintiff in and on board the same as such passenger, and to carry him, as such passenger, from Southampton to Gibraltar, yet the defendants disregarded their duty in that behalf, and did not nor would receive the plaintiff as such passenger in and on board the said steam-ves- sel, or carry the plaintiff therein from Southampton to Gibraltar, but wholly " neglected and refused so to do, and then caused the said steam-vessel to sail ; and the same then sailed from Southampton to Gibraltar without the plaintiff. \_Aver any special damage sustained hy the plaintiff r\ And the plaintiff claims £ . Declaration in Tort against a Railway Company for Injury to the Plaintiff a Passenger} For that the defendants were common carriers of passengers and goods upon and along certain railways, from to , for reward to the de- fendants in that behalf; and thereupon the plaintiff, at the request of the defendants, became and was a passenger, and was received by the defendants in one of their carriages, to be by them safely and securely carried and con- veyed thereby from to , for reward to the defendants in that be- half; and thereupon it became and was the duty of the said defendants to use due and proper care and skill in and about the carrying and conveying the plaintiff on the said journey ; yet the defendants did not use due and proper care or skill in and about the carrying the plaintiff on the said journey, but so negligently and unskilfully conducted themselves in that behalf, and in conducting, managing, and directing the carriage in which the plaintiff was such passenger as aforesaid, and the train to which the same was attached, and the engine whereby the said train was drawn upon and along the said railways, that the carriage which contained the plaintiff was thrown and cast with great violence from and off the rails of the rail- way, and was overturned, crushed and broken to pieces,^ and thereby the plaintiff was bruised, wounded, and injured ; and became and was sick, &c., and incurred expenses. And the plaintiff claims £ . 1 See other forms in Carpne v. London and Brighton Eailway Co., 5 Q. B. 747 ; Curtis V. Drinkwater, 2 B. & Ad. 169, against a coach proprietor for negligently driv- ing a coach. In Brien v. Bennett, 8 C. & P. 724, cited ante, Ch. X., against an omni- bas proprietor for driving on whilst plaintiff was on the step, and throwing him down. . 2 This may be varied to meet the circumstances of the particular case. 662 APPENDIX. Declaration in Tort under the 9 4" 19 Vict. c. 93, against a Carrier of Passengers, hy the Executor of a Passenger who was hilled during a Journey hy the Negligence of the Defendants} A. B., executor of the last will and testament of E. F., deceased, by -, his attorney, sues C. D. For that [jproceeding to allege that the tes- tator hecame a passenger and was injured, as in the preceding form, hut substituting the name of the testator for " the plaintiflfj" and stating the facts to have happened " in his lifetime," and then aver as follows."] And the * plaintiff further saith, that by reason of the said several hurts, bruises, and wounds, so occasioned to the said E. F. in his lifetime as aforesaid, the said E. F. afterwards, and within twelve calendar months next before the commencement of this suit, died ; ^ and the plaintiff, as executor as afore- said, for the benefit of the wife {or other relatives of the deceased^) of the said E. F., according to the form of the statute in such case made and pro- vided, claims £ . FORMS OF PLEAS IN ACTIONS BY AND AGAINST CAK- EIERS.* In the Queen's Bench [or Common Pleas, or Exchequer of Pleas]. On the day of , A. D. 1856. D. ) And the defendant by , his attorney [or " in person"], says that ats > B. ) B_ ^ he never was indebted ^ [or " did not promise " °] as alleged. 1 See the statute considered by Chitty and Temple ; the particnlars of the persons on whose behalf the action is brought, and of the nature of the claim, must be delivered with the declaration. See Form of Particulars, Chitty's Forms, 803. And see a form of declaration in contract by an administratrix against a coach proprietor fdr negligence, whereby the intestate, a passenger, was injured and died; alleging, as special damage, that the intestate's personal estate was injured. Chit. Jun. Free, Pleading, 107, and see ante, Ch. X. ^ Or if the testator was killed at the time of the accident, alter the declaration ac- cordingly. ' See ante, Ch. X., as to the persons for whose benefit the action may be brought. ' The general form of replication will be, that the plaintiff joins or takes issue upon the defendant's pleas. Com. Law Proc. Act, 1852, s. 79. ^ This would be the proper form of plea to the indMatus counts. " This plea would bo applicable to the declarations. As to what this plea puts in issue, ante, Ch. X. FORMS OF PLEADINGS. 663 Form of Plea of not Guilty to an Action of Tort against a Carrier. And the defendant by , bis attorney [or " in person "], says that he is not guilty, as- alleged.^ Plea of Non Detinet to a Declaration for Detention of Goods. And the defendant by , his attorney [or in person], says that he did not and doth not detain the said goods, or any or either of them as alleged. Plea to a Declaration in Contract against a Carrier for not safely carrying and delivering Goods, that Defendant did safely carry and deliver them. And for a second^ plea to th& first count, the defendant says that he did carry the said goods to • •, and deliver the same to the plaintiff within the time agreed upon.^ Plea to an Action of Tort, denying the Bailment to the Defendant. And for a second plea as to the first count, the defendant says that the said goods were not delivered by the plaintiff to the defendant for the purpose alleged.^ Plea to an Action of Tort, denying that the Defendant was a Common Carrier. That the defendant was not a common carrier of goods for hire as alleged.' ^ As to the effect of this plea and what it puts ia issue. This would also be the proper plea to put in issue a conversion by u. carrier sued in trover, but would not deny the plaintiff's property in the goods, or enable the defendant to set up a lien. ^ Each plea must be written in a separate paragraph, and numbered. Com. Law Proc. Act, 1852, s. 67. No formal commencement or conclusion is required to pleas. Id. ^ This would be the proper form of plea to the declaration. As to what is a per- foi-mance of the carrier's contract or duty, aud a sufficient delivery by him, ante, Ch. X. If the defendant pleads that he did not promise, this puts in issue that the defendant was a common earner, and the delivery of the goods to him in that capacity. If the defence be that the goods were improperly packed, or that the goods were stopped in transitu, by the consignor, or that the goods were not insured under the Carriers' Act, these defences must be specially pleaded. * This plea renders it necessary for the plaintiff to prove a delivery of the goods to the defendant or his servant, upon the bailment alleged in the declaration, but does not put in issue that the defendant was a common carrier, or his liability in that capacity. As to what is a sufficient delivery to charge a carrier by land ; or by water. As to the delivery of a passenger's luggage, ante, Ch. X. 6 This plea puts in issue the fact that the defendant carried on the business of a 664 APPENDIX. Plea under the Carriers' Act, 1 Wm. i, c. 68, to a Declaration for losing a Parcel, that it contained Title-Deeds,^ and that the Nature and Value thereof was not declared, or an increased Rate of Charge paid. And for a second plea,^ the defendant says that the said parcel in the declaration mentioned contained only title-deeds,^ which at the time of the delivery thereof to the defendant, and when the same were lost as afore- said, exceeded in value the sum of £10 ; and that the said parcel was delivered by the plaintiff to the defendant, as a common carrier by land,^ of goods for hire [to be carried and conveyed from and to the places in the declaration mentioned] at a certain office or receiving-house of the defendant for the receipt of goods to be carried by him as such common carrier as aforesaid : and the defendant further says, that when the said parcel was so delivered at the said office, there was affixed, according to the form of the statute in such case made and provided, in legible char- acters, in a public and conspicuous part of the said office, a notice,* whereby he, the said defendant, notified that a certain increased rate of charge therein mentioned was required to be paid over and above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of (amongst other things) title-deeds; and the defendant further says, that at the time of the delivery of the said parcel at the said office as aforesaid, the value and nature thereof were not declared by the person sending or delivering the same, and neither the said increased charge was paid to nor was any engagement to pay the same accepted by the person receiving the same at the said office. Replication to the above Plea : that the Parcel was feloniously stolen hy the Defendants Servants, through the gross Negligence of the Defetidr ants.^ And as to the second plea, the plaintiff says that, whilst the said par- common carrier, but does not raise any question as to his duty to carry. See per Maule, J., Benett v. Peninsular and Oriental Steamboat Co., 6 Com. B. 775. Ante, Ch. X. 1 If the parcel or package lost contained several articles, some of which were not of the description specified in the Carriers' Act, the plea must be confined to those articles which are within the act, and which together exceeded in value £ 10. See the form in Hearn v. London and South-Western Railway Co., 10 Exch. 793 ; 3 Com. Law Rep. 597, S. C. ; and see other forms in Syms v. Chaplin, 6 Ad. & E. 634 ; Hin- ton V. Dibbin, 2 Q. B. 646 ; Brind v. Dale, 8 C. & P. 206 ; Davey v. Mason, 1 Car. & M. 46 ; Chit. Prec. PI. 293. ^ ^ The statute only applies to common carriers 6y land. Ante, Ch. X. ' As to the necessity for afiBxing this notice, and what is u compliance with the Act of Parliament. * See Butt v. The Great Western Railway Co., 11 Com. B. 153 ; Finucanev. Small, 1 Esp. 315 ; Hintou v. Dibbin, 2 Q. B. 646. FORMS OF PLEADINGS. 665 eel was in the charge and possession of the defendant as such common carrier as aforesaid, the same was, by and through the gross carelessness and negligence of the defendant, unlawfully and feloniously stolen, taken, and carried away by a certain then servant of the defendant [to wit, one E. F.], whereby the same was not safely and securely carried or conveyed, or delivered as aforesaid, but then was and is wholly lost to the plaintiff, solely by reason of such felonious act. Plea to a Declaration in Tort for not delivering a Cash of Beer, that the . Cash was an insufficient one and burst, whereby the Beer was lost, and could not be delivered.^ And for a second plea, as to the not safely and securely delivering the said cask of beer for the plaintiff, the defendant says, that at the time the said beer was delivered to him the same was contained in a certain cask, which was then, and at the time of the loss hereafter mentioned, a bad and insufficient cask, and not properly secured and coopered in that behalf, without any default on the part of the defendant ; for which reason the said cask afterwards, and before the defendant could safely and securely deliver the said cask with the beer therein, for the plaintiff as aforesaid, broke, burst, and gave way, and the said beer therein then escaped from the said cask and was wholly wasted and lost, without the defendant's default, whereby he was prevented from delivering the said cask of beer for the plaintiff, as he otherwise would have done. Plea to an Action by the Consignee of Goods for not delivering them, that the Consignor gave Notice to the Carrier and stopped the Goods in transitu.^ Plea by the Owner of a Ship sued for a Loss of Goods. That the goods were " silver," &c., within the 17 & 18, Vict. c. 104, s. 503, that their nature and value were not declared in writing in the bill of lading or otherwise, and that they were stolen without the privity or default of the defendant.' Plea to an Action against a Carrier charged as a Wharfinger, that the Goods were destroyed by an accidental Fire.*' 1 This defence would not be admissible under a plea of not guilty. See the law on this subject, ante-, Ch. X. ; and see "Webb v. Page, 6 Man. & G. 696, 1 D. & L. 531, S. C. ; Walker v. Jackson, 10 M. & W. 161. " Jones V. Jones, 8 M. & W. 431. See the law, ante, Ch. X. 8 See a form of plea, Gibbs v. Potter, 10 M. & W. 70. And see the law on this sub- ject, ante, Ch. X. * Bourne v. Gatliffe, 3 Scott, N. E. 1 ; 7 Man. & G. 850 ; 8 Scott, N. R. 604 ; 11 CI. & F. 45, S. C. 666 ' APPENDIX. Plea of the Statute of Limitations. Says that the alleged causes of action did not accrue within six years next before the commencement of this suit.-' Plea of Payment to an Action for the Carriage or Freight of Goods, S^c. Says that, before action, he satisfied and discharged the plaintiff's claim by payment. Form of Plea of Payment into Court to a special Count against a Carrier for Non-Delivery of or Loss of Goods, or to a Count in Trover or Deti- nue, or for Injury to a Pasen^er? And the defendant Jay , his attorney, brings into court the sum of £ , and says, that the said sum is suflBcient to satisfy the claim of the plaintiff in respect of the matter herein pleaded to. 1 21 Jac. 1, c. 16, s. 3 ; Philpott v. Kelley, 3 Ad. & E. 106 ; Denys v. Shuckbnrgh, 4 Y. & Col. 42. Actions by executors under Lord Campbell's Act must be com- menced within twelve months after the testator's death. As to the limitation of ac- tions against executors or administrators for injury to the pei-sonal estate of the tes- tator or intestate, see 3 & 4 Wm. 4, u. 42, s. 2. ^ Carriers may pay money into court in all actions. 1 Wm. 4, c. 68, s. 10 ; Com. Law Proc. Act, 1852, s. 70. As to the effect of paying money into court. INDEX. INDEX. THE FIGUBES EEFEK TO THE SECTIONS. ABANDONMENT, of goods for partial loss, not allowed, 482. of goods for freight, 408, 414. ACCIDENT, how far evidence of negligence, 569. ACT OF GOD, for losses by, common carriers are excused, 46, 67, 148, et seq. although bill of lading is given which does not mention this exception, 294 n. how it differs from " inevitable accident," 154. is accident produced alone by physical causes, 154, 168. term vis major used in the same way in the civil law, 155. also the term casus fortuitus, 155. loss by fire otherwise than lightning, not the act of God, 156 - 160. where storm caused unusually low tide, 157. freezing of canals an interposition of vis major, 160. to excuse the carrier for losses by act of fiod, they must in no degree be connected with human intervention, 154, 157, 168-187, 188-200. And see Perils of the Sea- ACTIONS, See Declaration, if carrier refuses to take goods consigned to A for sale, A has no cause of action, 1 24 «. of, eigainst carriers, 418-521. by carrier against a third party, 348. against common carrier for refusing to receive and carry goods, 418. case the proper action for such refusal, and of the declaration, 418. for loss of goods, may be ex contractu, or ex delicto, 422, 462. And see Admiralty. Action on the case for, 423-434. misjoinder and non-joinder of parties in, less serious than in assumpsit, 428, 435, 517, 591. carrier's undertaking may be set forth less formally in, than in assumpsit, 428, 429, 440, 441. declaration in, may contain a count in trover, 430-434. Action of assumpsit for loss of goods, 434. common money counts may be joined in declaring in, 435. 670 INDEX. ACTIONS, — Continued. survives to the executor, 435, 593. trover cannot be joined in declaration in, 435. but assumpsit will lie when trover will lie, 441, 444. as to the distinctive character of declaration, whether in tort or contract, 436-440, 591. as to the allegations in declaration, 440-451, 592. trivial variation, in declaring on special contract, fatal, 441, 443. where there is a contract in the alternative, declared on, 442. allegation in respect to quantity and quality of the goods, 447. of non-delivery, in reasonable time, 448. variance between allegation and evidence as to termini, 449. pleading to the declaration in action on the case and in assumpsit, 451 -461' statute of limitations, 460. evidence, 461-482. And see Evidence. of the parties to sue, 491-513. And see Consignor and Consignee. parties to be sued, 513-521. And see ^^ent. — Master of Vessel. against passenger carriers for refusing to receive a passenger, 590. and for their negligence or misconduct, 591. and allegation in declaration, 592. which may be in case or assumpsit, 591. against passenger carriers, does not survive to executor, unless, &e., 593- 602. And see Executors and Administrators. for injury by collision of carriages, trespass lies, 602. unless done by carrier's servant, 603. then the action must be case, 603. And see Trespass. infants sue by next friend, 608. ADMIRALTY, courts of, have jurisdiction over losses of goods by carriers by sea, 419 - 422, 486. also over personal injuries committed upon passengers by sea, during the voyage, 610, et seq. jurisdiction does not depend on tide-water, 610. has exclusive jurisdiction in suits in rem, 610 n. whether proceedings in, for injury to goods, &c., should be in the nature of contract or tort, 420, 610, n. jurisdiction of courts of, in cases of collision of vessel, 610. And see Passenger Carriers hy Water. ADVERTISEMENT, when incorporated into contract, 222, 527 o. AGENT, carriers of goods liable for the negligence and misfeasance of their agents and servants, 47, 50, 91, 638. INDEX. 671 AGENT, — Continued. unless the owner of the goods contracts exclusively with the agent or servant, 91, 574. And see Wagoner, Stac/e-Coaches, Ferrymen, Steamboats. carriers employed by an agent of the owner of the goods are responsible to the owner, 98, 466, 494. whether the name of the owner is disclosed by the agent or not, 98, 466, 494. a notice to agent, notice to principal, and vice versa, see Notices. delivery of goods to, a delivery to the carrier, see Delivery of Goods. not a competent witness in an action against carrier, 469. not liable to be sued by the owner of goods lost, while in carrier's employ- ment, 513, 514, 516. unless, &c., 515. exception as to master of vessel, 518, 521. passenger carriers liable for acts of their drivers and other agents, 572-580. qucere, whether, in a certain case, the driver of a vehicle acts as the agent of the owner of it, 575, 604, 667. when agent exercises an independent calling, 575 n. owner of steamboat not liable for injury to a passenger caused by accidental discharge of gun by employee of boat, 604 n. where one agent of a transportation company is injured by another of the company's agents, 576-580. injury received by a driver of vehicle in consequence of its not being road- worthy, 579. for- injury by collision of carriages, &c., when by the driver, case the proper remedy against the employer, 603. when by principal, trespass may be brought, 602. And see Trespass. AGISTERS OF CATTLE, are within the rule of responsibility for ordinary negligence, 52. whether they have a lien on the cattle for pasturage consumed, 66 n. ANIMALS. See Living Animals. ASSUMPSIT, in action of, against carriers, the rule as to burden of proof, see Evidence, Actions, Declaration. when against a carrier without hire, for money had and received, is not proper, 39. AUCTION, sale of damaged goods at, 490 n. BAGGAGE, city express company carrying, liable as common carrier, 74. liability of street railways for, 107 n. where there are connecting lines of railroads, 107 n. where special contract is made that carrier is not to be liable unless bill of lading is given. 111 n. omnibus, when liable for, 112 n. 672 INDEX. BAGGAGE, — Continued. when passenger retains exclusive possession of, 112 n. of passengers in stage-coaches, rail-cars, steamboats, &c., is in the custody of the owners of such conveyances as common carriers, 107-121, 140, 209, 317-323, 571. And see ResponsibUily of Common Carriers. not necessary that a distinct sum should be paid for conveyance of baggage, 107, 110, 112. nor need actual payment of the fare be proved, 110. nor is entry upon the way-bill necessary. 111. hackney coachmen accustomed to carry baggage subject to same rules, 112. the owner of the baggage being present, or sending a servant to look after it, does not exempt the carrier from liability for its loss, 113, 322. but it must be fully in the carrier's custody, 113, 322. must be safely delivered to the owner on arrival, 114, 317, 318, 319, 571. but must be demanded by the owner in a reasonable time, 114, 320. the carrier liable for a wrong delivery on forged order, 321, 324, 327. such a delivery is a conversion of the property, 324-327. no passenger compelled to expose himself in a crowd in order to claim it, 114. the liability of the carrier for its safety does not extend beyond ordinary baggage, 115. and it never includes merchandise, 115. nor a large sum of money, 115. nor jewelry, 115 n., 262. nor silver-ware, 115 n. nor masonic regalia, 115 n. nor engravings, 115 n. includes such articles as are necessary for the traveller's convenience, 115. or for his amusement, as a gun or fishing-tackle, also a watch, and a reason- able amount of money, 115. pistols included as baggage, 115 ra. so as to jewelry ordinarily worn on the person, 115 n. whether a bed and pillows are included, 115 re. jury to decide as to what are proper articles of baggage under the particular circumstances, 115, 116. notice that " all baggage is at the risk of the owners," of no validity, 238 - 245. notice that carrier will not be responsible unless baggage is cheeked, 247. And see Notices. if the fare is not paid, the baggage may be kept till it is, 375, 609. but the lien does not extend to the passenger himself, or the clothes he has on, 375, 609. And see Lien. as to the competency of the owner of a trunk or bag lost, as a witness to prove the nature and value of the contents, 475-482. BAILMENT, general view of law of, 1-17, 348. includes law of carriers, 2. diversity of opinion respecting, formerly, 3. INDEX. 673 BAILMENT, — Continued. unsettled by the Common Law, till reign of Anne, 3, 68. Beveral definitions of, 4. involves the question of responsibility for neglect, 5. And see Negligence. several sorts of, 13-16. most simple division of, 15. BARGEMEN, as common carriers, 79. BASTARD, not child under statute, giving right of action for benefit of child, in case of death, 600 a, note. BILL OF LADING, as to the exception in, of "perils of the sea," 166, 167, 169, et seq., 180, 226. and the " perils of the river," 168, 226. the nature of, 223, 231, 308, 464. stipulations in, 223 n. acknowledgment of receipt of goods in good order, 223 n. signed without goods being on board, void, 223. authority of the master of vessel to give, 223 a. transferable by indorsement, 508. modern English form of, 223. not controlled by a parol agreement, 228. how far construction of, is subservient to usage, 228- 231. between shipper and ship-owner, not conclusive as to quantity of merchan- dise shipped, 231. when bill of lading contains clause "weight, contents, and value unknown," 202 n., 23Ifl2. privilege of re-shipping in, does not discharge carrier from responsibility, till the goods are delivered at destined port, 227. stipulating for the delivery in a prescribed time, no cause of delay can be pleaded, 294. carrier under, not liable for loss by act of God or public enemy, 294 n. master must deliver to the persons mentioned in, 298. And see Delivery. difference between, and charter-party, in respect to freight, 395. stipulation in, for delivery on payment of freight, 397. And see Freight. to whom the master and owners of vessels are liable, on the contract, by, 502-513. both master and owners of vessel bound by, 519, 520. boileTr, • loss by explosion of, 161. BONA PERITURA, the obligation in respect to safe transportation of, 25, 210, 211. BREAKAGE, limitation of liability for loss by, 202 n., 212 n. BURDEN OF PROOF, 61, 202, 506. See Evidence. 43 674 INDEX, CANALS, persons engaged as boatmen upon, are common carriers, 81. and therefore, without express' authority, cannot dispose of property of which they are the bailees, 81. regulation of canal-boats, in New York, 89, 630, 637. freezing of, an interposition of vis major, 160. . CAKE AND DILIGENCE, See Negligence. of goods in case of disaster, 212 n. CARMEN, employed in cities and towns, their liability as common carriers, 74. CARRIERS, law of, as a branch of the law of bailments, 1-17. the most numerous class of, 1, 66. See Carrier without Hire, Carrier for Hire not a Common Carrier, Common Carrier, Passenger Carriers, Passenger Carriers by Water, Namgation. CARRIER WITHOUT HIRE, in the Civil Law; Mandatarius or Mandatary, 1, 17. the person by whom employed, the Mandator, 1. liability of, 17-45. , Coggs V. Bernard, cited and commented on as the leading case respecting, 18-21. without any special undertaking, is bound not to be guilty of gross negli- gence, 20. liability of, same as that of a depositary, 21. what is gross negligence in the, 21-37. And see Negligence. where the subject of the bailment is living animals, 24, S^ where it is a perishable commodity, 25. care must be proportioned to the chance of loss, in every case, 26. not liable for goods stolen from him, except when, 28-32. whether liable if he keeps the goods with the same care as he keeps his own, 32-36. liability of the mandatary, if he undertakes what requires skill, 36. his own acts and declarations, how far evidence of his care and honesty, 29, 30. whether his liability may be enlarged or qualified by the special terms of his undertaking, 20, 37. burden of proof in actions against, 38-41. his right to sue for property intrusted to him, 41. no right of lien on thing bailed, 41, 43. why actions against, have not been common, 44. • as to the obligation o{ mandator arising from the contract of mandate, 1, 42. and that of mandatary, 18 et seq. CARRIER FOR HIRE NOT A COMMOSf CARRIER, the class of contracts to which his belongs, 1, 47. bound to ordinary diligence and responsible for ordinary negleot, 45- 59. di£ference between, and a common carrier, 46. nn)EX. 675 CARRIER FOR HIRE NOT A COMMON CARRIER, — Conimued And see Common Carrier. a good defence by him, that the goods were lost by unardHable accident, 47. not liable for loss by robbers, 47. not for any taking from him by force, 47. difference between robbery hy force, and a secret theft, 48. a loss by secret theft, primd, facie proof of the want of proper care, 48. whether the mere fact of loss is such presumptive proof, 49, 50. . liability for not stopping a leak in a cask, 53. for the intoxication of the servant employed, 54. for leaving the cart unprotected in the street, 55. when the owner of the goods conduces to the loss, the carrier not liable, 57. liable for injury to the goods, though afterwards they were destroyed without his fault, 58. his liability as increased or diminished by special contract, 59, 60. an express promise by him to carry safely, is but the implied undertaking to carry without negligence, 60. as to the burden of proof, in actions against, 61 - 65. promise by, to pay for goods lost, admission of liability, 65. Quosre. Whether a carrier for hire, not a common carrier, has a lien on the gbods for his labor ? 66. And see Lien. — Common Carriers. CASE, in action of, against carriers not common carriers, the rule as to burden of proof, 38, 63. And see Evidence, Actions, Declaration. CATTLE. See Living Animals. CAUSA PROXIMA NON REMOTA, 163, 201-203. CHARTERER, liable to ship-owner for damage done to goods of other shippers by his goods, 212 re. CHARTER-PARTY, a delivery of goods to the master of a vessel under charter-party, when not a delivery to ship-owner, 147. f the terms of a, as determining whether the charterer or ship-owner has a lien on the cargo for freight, 376, 384, 395 - 398. CHILD, bastard not, under English statute giving right of action for benefit of child, in case of death, p, 600 a, note. CHECK, for baggage, evidence of delivery, 475. COLLISION OF VESSELS, injury by, as within the exception of " perils of the sea," in bills of lading, 166, 167, 226. the rule as to apportionment of damages in case of injury by, from mutual negligence, in the admiralty and at Common Law, 633 - 643. 676 INDEX. COLLISION OF VESSELS,— Con but no such stipulation affects the right of stoppage in transitu, 362. Qu(Bre, whether the carrier can retain possession of the goods for the unpaid carriage, when they are not the property of his bailors, 357, 363 - 368, and see 335 - 338. possession of the goods once acquired by the carrier, can be' retained until due remuneration, if the carriage of them be dispensed with, 368. possession once parted with, the lien is lost, 370-374, 609. if possession be put an end to by fraud, the lien revives, 374. it extends to baggage of passengers, 375, 609. but not to the passenger himself, or the clothes he has on, 375, 609. when owner of vessel, under charter-party, has lien on cargo, 376, 381. , none exists in virtue of unliquidated damages, 381, 382. delivery of part of goods does not defeat a lien on the remainder for the whole freight, 373. nor for a breaB of covenant, 383. it attaches, whether payment of freight is to be before, or concomitant with, delivery of cargo, 384. may exist in connection with a special contract, 385 - 391. unless contract is inconsistent with lien, 385, 391. of passenger carriers on baggage, 609 a. none for dead freight, 381. when lien for freight commences, 893. when carrier claims lien for two causes, 433 n. LIGHTS, See Collision of Vessels. LIMITATION OF COMMON CARRIER'S RESPONSIBILITY. See Contract, Notices, Statute. INDEX. 687 LIQUIDS, how far a carrier is bound to provide against loss of, in transportation of, 53, 211. LIVING ANIMALS, where the subject-matter of the trust to a bailee is living animals of the brute creation, 24, 34, 52, 78, 214. a common carrier liable as such for their safe transportation, 214. where owner of animals accompanies them, 214 a, 528. where cattle are killed by railroad, 567 c. but not if lost by the perils of the sea, 214. the rule as to freight, in the transportation of, by water, 82, 214, 394. LOCATIO OPEEIS, &c. See Contract. LUGGAGE. See Baggage. MAIL CONTRACTOK, not liable to the owner of a letter containing money transmitted by mail, and lost by contractor's agents in carrying the mail, 121. See Postmasters. MANDATOR and MANDATARY. See Carrier wUhout hire. MARKS, ■ goods should be properly marked, 136. MASTER AND SERVANT. See Agent. MASTER QF VESSEL, liable for loss of goods, 518 - 521. but the goods must be fully in his custody, 518. And see Delivery. both he and owners bound by biU of lading, 519, 521. when liable for bad stowage, 518 n. no authority to sign bill of lading without receiving goods, 223. And see Bill of Lading. incompetent as witness without release, 469. his authority over passengers, and his duties towards them, 621, 622. And see Passenger Carriers hy Water. MISFEASANCE, diflference between, and negligence, 12, 269. MISREPRESENTATIONS, of shipper, how far a defence to a suit against carrier, 265. MONET, carriers of, withoiit hire, liable for gross negligence, 27-34. carriage of, by common carriers, renders them liable for loss when not occa- sioned by the act of God or the public enemy, 100 - 107. that is, -when they hold themselves out to the public, or are accustomed to carry money, 100- 107, 209. money arising from the sale of gdods in the hands of the carrier, which he is authorized to sell, 104- 107. 688 INDEX. UO^EY,— Continued. ■ the money, in such case, like a, return cargo, for which the carrier is re- sponsible as common carrier, 104-107. usage of trade may authorize the carrier to act as agent for the sale of goods, and to receive the money, 104- 107. act as carriers in going with the goods, as factors in selling them, and as com- mon carriers in bringing back the money, 104-107. the usage to authorize a carrier to sell the goods, and receive the money, must be certain, uniform, and well established, 106. what is a timely and proper delivery of, by the carrier of it, to a bank, 286. of a tender of, to common carriers for the carriage of goods, 418. See Baggage, Postmasters, Mail Contractor. NAVIGATION, persons employed in, when common carriers, 79 - 91. See Bargemen, Hoymen, Canals, Ferrymen, Steamboats, Ship-Owners. rules of, for avoiding collision of vessels, considered and applied, 647-671. See Passenger Carriers by Water. — Collision of Vessels. NEGLIGENCE or NEGLECT, responsibility for, involved in the law of bailment, 5. and the degree of care proportioned to the nature of the trust, 5. degrees of care recognized by the law, 6, 11. and how dependent on times, circumstances, &o., 7-9, 11, 27, 29, 51. the fixed mode or standard of diligence, 9. gross negligence, what is, 10, 21-37. ordinary negligence, what is, 10, 47 - 50. slight negligence, what is, 10. application of the several degrees of, 11. questions of negligence are for the jury, 7, 11, 16, 22, 27, 51, 184, 185, 18S, 187, 212, 559, n. difference between, and misfeasance, 12, 269. difficulty of defining gross negligence^ 22, et seq. Qucere, whether any difference between negligence and gross negligence, 23, 268. where the subject-matter of the trust is living animals, 24, 34, 52, 214, 394. the doctrine of liability for ordinary negligence, as applied to private carriers for hire, 45-06. And see Carrier for Hire not a Common Carrier. a carrier's liability for negligence extends to negligence of servants, 47. And see Agent. — Delivery of Goods. o{ the prima facie evidence of negligence, 48-52, 156 etseq., 202. And see Responsibility of Common Carriers. as to burden of proof in cases of, see Evidence. — Passenger Carriers. the rule as to liability for, when both plaintiff and defendant have contrib- uted to a loss, 556-563, 576, 607, 633-643. the rule as to apportionment of damages in cases of injury to vessels by col- lision from mutual negligence, see Collision of Vessels. where person injured is incapable of eiercising care, 562. INDEX. 689 • NEGLIGENCE ok NEGLECT, — Continued. where person is on top of stage-coach, 561. effect of contract against loss by, 275. NEGROES, rights of, as passengers, 525. NGN-DELIVERY OF GOODS, by the carrier, what excuses, 327-348. carrier excused for non-delivery, if the goods are lost by " act of God," &c., 327. • where carrier's liability is limited by special contract, he is excused for every- thing except ordinary negligence, 327. entirely excused, if the goods, from necessity, have been thrown overboard to lighten a vessel, 215 - 219, 328. so if the goods have perished from some inherent defect, 328. or, that the nature and value of the goods were not disclosed, and the carrier did not bestow the care he would have done if he had not been deceived, 328. so if the gobSs have been forfeited by the illegal act of the shipper, 329. so if the goods are delivered by the order or consent of the owner to another carrier, 330. or deposited at an intermediate place to await further orders, 330. or by other directions to the carrier, 331. so an acceptance by the owner or shipper of the goods, short of the place of destination, 332. provided the goods, beforehand, have not been injured, 333. owner of the goods accompanying them will not excuse a non-delivery, un- less he has the exclusive custody, 334. I Qucere, if the goods are taken by the real owner from the carrier, is it an ex- cuse for non-delivery to the bailor ? 335 - 338- carrier paying damage for the loss is tantamount to a safe delivery, 338. the right of the consignor of goods to stop in transitu, justifies a non-delivery to the consignee, 339 - 348. NOTICES, by common carriers by land, intended to limit their liability, 54. the effect of, 232 - 280, 27*5. • origin and history of, 222 - 238. validity of, gradually established, 233. fruitful source of controversy, 234, 253, 255, extent to which they are properly admissible, 234-238, 245, 255, 268. "baggage at the risk of the owner," does not restrict common liability, 238 — 245. when there are two valid notices given, carrier bound by the one least bene- ficial to himself, 246. knowledge of notice must be brought home to the owner of the goods or his agent, 247, 251. the most usual evidence of this, 248- 251. a notice of the carrier's terms', put up in his ofiice, 248. when such notice fails, 248. "44 690 INDEX. NOTICES, — Continued. by advertisements in the public newspapers, 222, 249. by printed cards and handbills, 249. most unexceptionable and effectual mode of giving notice, 250. when binding on the owner, binds his agents, 251. notice to the agent of owner, binds owner, 254. of a notice where several are in partnership as carriers, 252. different forms of notice, 253. they must not be in terms ambiguous, 254. , act of Parliament respecting, 256. and its general approval, 256, 257, 277. and general effect, 257. in absence of notice, persons sending goods not allowed fraudulently to con- ceal their value, &c., 258, 267. And see Fraud. carrier answerable for negligence, although the terms of the notice are not complied with, 267, 268, 275. notice applies only to the responsibility of the carrier as an iisurer, 267, 268, 275. so the carrier is liable for a loss by his misfeasance, notwithstanding a no- tice, 269. , as by delivering the goods to a wrong person, 270. And see Delivery of Goods. so for want of sea- worthiness of his vessel, 274. or defect of vehicle, 274. See Contract. but in such cases, the burden of proof is on the owner of the goodrto show negligence, &o., 276. waiver of notice, 278, 279. See Contract. of the notice necessary to be given of the arrival of goods in vessels, to the owner or consignee, 313 --31 7. OMNIBUS, when liable for baggage, 112 n. « for damage done by lamp bursting in, 569 n. ONUS PROBANDI. See Evidence. PAKTNERSHIP, when persons act as copartnership carriers, all are responsible for the negli- gence or misfeasance of one of them, 92, 94, 580-590. where several railroads appoint one agent, 531 n. although the business throughout the route is divided between them, 93, 581-586. and the vehicle or vessel employed may be owned by one of the partners only, 98, 581-586. of a notice limiting responsibility, by carriers who are partners, 252. And see Notices. INDEX. 691 PASSENGER CARKIERS, duties, liabilities, and rights of, 521-610. liability of railroad for dfefect in depot, 521 n. for injury while passing to cars from ticket office,,521 n. for ferocious dog, 621 n. for not providing a proper platform, 521 n. . for injury inflicted by one passenger on another, 521 n. passenger should not be ejected when train is going at dangerous speed, 521 n. passenger leaving car at night, 521 n. where negligence of a third party contributes, 521 n. when colored persons are passengers, 525. bound by notice of time of starting, 527 a. of passengers in baggage car, 528 n. freight car, 68 n., 528 n. * on engine, 528 n. on platform of car, 528 n. when passenger is canied gratuitously, 528 n, when one carrier is liable for accident on line of another, 531. what notice required of change of cars, 533. passenger on outside of stage-coach injured after being requested to take an inside seat, 537. when bound to adopt new inventions affording greater security to passen- 538 re. • difference in respect to, between them and public carriers of goods, 521 - 524, 568, 570. are bound to the observance of the utmost care for the safety of passengers, 523, 568, 570. 'H their obligation to receive passengers, 524-531,590, 612. but not allowed to carry slaves, unless, &c., 530 c. their right to make all reasonable regulations, 530, et neq. for what cause application for passage may be refused, 525, 529, 530, 609, 612. vehicle must not be over-crowded, 528. when they cannot oblige travellers in company to occupy distinct seats, 528. their duty to convey the entire route, 531. power to expel passenger from the vehicle or car, 532. their duty as to the usual accommodations on the road, 533. their duty in respect to land-worthiness of vehicle, 534-540. by stage-coaches, bouiid to provide vehicles that are strong, and suitable harness, &c., 534. to examine vehicles previous to every journey, 534. not liable for defects in vehicle which cannot be discovered by tJwrougJi ex- amination, 535, 536. liable for mal-construction of vehicle, and improper position of baggage, 637. railroad companies impliedly warrant their road and cars to be in good con- dition, 538. implements on deck of steamboats must be properly secured, so as not to endanger passengers, 539. 692 INDEX. PASSENGER CATi,EIERS,— Con«m«erf. are bound for the skill and attention of their servants, 540 - 543. drivers of stage-coaches, and engineers, and Switch-tenders on railroads, must be competent', careful, and not persons of intemperate habits, 540, 541. must not start until passenger has time to be seated, 542. their duties in respect to rate of speed, 543 - 549. are liable for the consequences of racing, 545. and rash speed on railroads, 546. are liable when, in consequence of their default, a passenger is prompted to leap from the vehicle, 547, 548. their duty as to an observance of the proper side of the road, and as to avoid- ing collision, 549-563. the proper side of the road in England and in America, 549. the law of the road not the criterion of negligence, 549 - 556. if road or street Be very broad, 552. « where the drivers meet on the sudden, 555. if negligence on both sides be proved, neither party can recover, 556 - 563, 576, 607. ^■ unless, &c., 561, 562. And see Collision of Vessels. their duties and liabilities as to foot passengers, 563 - 566. and as to property on the wayside, 566, 567. for injury to cattle, 567 c. when lamp bu|^ts in omnibus, 569. burden of proof upon, to show proper care has been observed, in case of injury, 569. liability of, for acts of drivers and servants and agents, 572- 580. And see Agent. A when in copartnership, and what constitutes one, 580 - 590. And see Partnership. of " consignee " passengers, 586. actions against, 590 - 609. And see Actions. rights of, 609. as to payment of fare to, 110, 111, 525 - 538, 609. what regulations as to payment of fare are valid, 609 n. .PASSENGER CARRIERS BY WATER, their duty to receive passengers, 525, et seq., 612. obligation of, ceases on termination of voyage, 61t. whether they carry from one part of the same country to another, or from one part of a country to a foreign country, 612. as to accommodations, &c., during voyage, 612 - 629. in case of express contract in respect to accommodations, 614, 615. and the custom of the particular voyage, 616, 617, 618. as to payment of passage-money ^ro rata ilineris, 619. whether the executor of the captain may sue for stores supplied to a passen- ger, 620. where vessel is lost at time contract is made, 620 a. IKDEX. 693 PASSENGER CARRIERS BY WATER, — Continued. the duty of obedience of passengers to the captain's authority, 621. his duty in respect to female passengers, 631, 632. how a passenger, guilty of ungentlemanly conduct, is to be treated, 622. a passenger on board at a time of danger, bound to obey the captain's call, 623. when, in this respect, the captain exceeds his authority, 624. where a passenger is delayed in his voyage by the negligence or mismanage- ment of the captain, 625. acts of Parliament, and of Congress for protection, &c., of passengers by sea, 626. construction of act of Congress on the subject, 627, 628. acts of Congress for the safety of passengers on board of s/eam-vessels, 629. passenger boats on New York canals, as regulated by the State, 89, 630. constitutionality of State laws, in respect to alien passengers, 631. and the validity of a State law, imposing a tax upon alien passengers, 632. in respect to collision of vessels, see Collision of Vessels. PERILS OF THE RIVER, as to the import of the phras.e, in biUs of lading, 168, 226, PERILS OF THE SEA, what the term denotes in bills of lading, and whether same as " act of God," 166, 167, 169, etseq., 226. include losses by pirates, 166. and losses by collision of two vessels, 166. damage to a vessel by the eating of worms, not a peril of the sea, 1 72. PILOT, when goods on board a vessel are lost or ijijured by the misconduct or negli- gence of a pilot, the master and owners liable, 193, and note. whether owners of a vessel" running afoul, of another are liable, when there is a pilot on board, 664, 667. PIRATES, losses by, within the exception of "perils of the sea," in bills of lading, 166, 201. See Public En^my. PLEADING, See Actions. — Declaration. POSSESSION, of goods by a carrier, as bailee, creates in him a special property, 348. and he may sue, in his own name, a pefson disturbing the possession, or for injury to the goods, 348. but his property in the goods not absolute, 349. and, therefore, no right to .sell or dispose of the goods, 349 - 354. master of a ship may, however, hypothecate, in case of necessity, 354. when usage of the tra