(h 4* HE991i.M5r""""""">"-*^'^>' ,,.,'r'?^ law o' carriers of goods 3 1924 013 809 979 PART 2^ LIMITATION OF LIABILITY CONNECTING CARRIERS chiCacio ■ V Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924013809979 THE LAW OF CARRIERS OF GOODS RALPH MERRIAM Of Chicago Bar Author, Claims between Shippers and Carriers Co-Author, Digest of Decisions under the Interstate Commerce Act PART 2 LIMITATION OF LIABILITY CONNECTING CARRIERS JA(S|ALLEpTENS10N (jNlVEI^SlTy CHICAGO 1917 (8-277) Copyright, 1914 LaSalle Extension Universitt CHAPTER V LIMITATION OF LIABILITY At common law and under statutes. — ^In examining the right of the carrier to limit its common-law liability for the loss of or injury to goods, it is important to distinguish between the right of the carrier to limit its liability as that right has arisen through judicial decision and its right so to do as fixed by statute. The Carmack Amendment to the Act to Regulate Commerce as passed in 1906 by Congress modifies in some respects the rights of carriers to limit their liability with respect to interstate shipments. This amendment does not apply, however, to intrastate shipments. As to the latter, the rules of the common law are still in effect except in so far as they may be modified by the statutes of the various states. It will be proper, therefore, to examine the situation with respect to the limitation of liability (1) as it stands under the common law and (2) as it stands with respect to interstate shipments under the Carmack Amendment. 1. At Common Law Early law. — ^At very early common law, it seems that all bailees for hire were absolutely liable for the loss of goods. This included innkeepers, pledgees, and the like, as well as carriers. In Woodlife's case,^ defendant, having received merchandise as a factor and not as a iMoore 462. 47 48 THE LAW OP CARRIERS OF GOODS carrier, was robbed of the same at sea, and his own goods were also taken at the same time. He urged this fact as a defense against a suit to recover their value. The court held that the plea was not good, as defendant bailee was absolutely liable. In Southcoute's case,^ Southcoute delivered goods to one Bennet, who was not a carrier, for safe-keeping. Bennet 's servant stole the goods and in a suit for their value Bennet urged this fact as a defense; but the court held defend- ant liable. Modification of early view. — ^In Coggs v. Bernard,^ different kinds of bailments were distinguished, and different degrees of liability attached thereto. It was held that bailees other than carriers were not subject to absolute liability, irrespective of negligence, but car- riers, on the grounds of public policy, were held to their original status of absolute liability. The court said : ''As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those were of two sorts — either a delivery to one who exercises a public employment or a delivery to a private person. First, if it be to a person of the first sort, who is to have a reward, he is bound to an- swer for the goods at all events, and this is the case of the common carrier, common hoyman, master of a ship, etc. The law charges these persons thus entrusted to carry goods against all events but acts of God and of the enemies of the king. For, though the force be never so great, as if an irresistible number of people should rob him, nevertheless he is chargeable, and this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose H Coke 83-b. o 32 Lord Raymnd 909. LIMITATION OP LIABILITY 49 affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by com- bining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be dis- covered, and this is the reason the law is founded upon in that point. ' ' The second sort were bailees, factors, and such like. And though the bailee is to have a reward for his management, yet he is only to do the best he can. And if he be robbed, etc., it is a good account. And the reason of his being a servant is not the thing; for he is at a distance from his master and acts at discretion receiving rents and selling corn, etc.; yet if he receives his master's money and keeps it locked up with a rea- sonable care, he should not be answerable for it, though it be stolen, but yet this servant is not a domestic servant under his master's immediate care. But the true reason of the case is, it would be unreasonable to charge him with a trust further than the nature of the thing puts it in his power to perform it. But it is allowed in the other case, by reason of the necessity of the thing." It will bo seen that in the case cited the strict rule of absolute liability obtaining in very early law and apply- ing to all bailees was relaxed except in the case of com- mon carriers. With respect to the latter, the judges felt that this absolute liability must be retained, inasmuch as the goods delivered for carriage were entirely in the con- trol and custody of the carrier, and to hold otherwise would enable the carrier through fraud and collusion to make away with the goods and would leave the shipper 50 THE LAW OF CARRIERS OP GOODS in no position to ofPer proof of negligence or fraud against the carrier. The reasons for the retention of the rule of absolute liability against the carrier, except in certain instances, and the nature of such liability, were stated by Lord Mansfield in Forward v. Pittard.* In this case there was a loss of the goods by fire, with no negligence on the part of the carrier. ' ' The question is whether or not the common carrier is liable in this case of fire. It appears from all the cases for one hundred years back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract he is liable for all due care and diligence; and for any negligence he is suable on his contract, but there is a further degree of respon- sibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer. It is laid down that he is liable for every accident, except by the act of God, or the king's enemies. "Now, what is the act of God"? I consider it to mean something in opposition to the act of man; for everything is an act of God that happens by His per- mission; everything, by His knowledge. But to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unraveled, the law pre- sumes against the carrier, unless he shows that it was done by the king's enemies or by such act as could not happen by the intervention of man, as storms, lightning and tempest. If an armed force come to rob the carrier of the goods, he is liable; and a reason is given in the books which is a bad one, viz., that he ought to have sufficient force to repel it. The true reason is, for fear it may give room for collusion, that the master may n Term Rep. 27. LIMITATION OF LIABILITY 51 contrive to be robbed on purpose, and share the spoil. In this case it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier, there- fore, in this case is liable, inasmuch as he is liable for inevitable accident." General power of carrier to limit liability. — In the course of time the courts by judicial decision made cer- tain exceptions to the carrier's absolute liability for loss of and injury to goods, namely, where the loss or injury occurred, as has been noted before, by the act of God, of the public enemy, or of the shipper, or arose from the nature of the goods. It should be clearly understood that these exceptions to the carrier's abso- lute liability arise by operation of law and do not exist by virtue of any agreement between the shipper and the carrier. In dealing with the subject of limita- tion of liability, reference is intended particularly to that limitation arisiag by virtue of contract between the shipper and the carrier. The courts by judicial decision not only established the exceptions to the absolute liability of the carrier noted in the preceding paragraph, but also gave the carrier certain rights to limit its liability by contract with the shipper. It is now generally held that at common law and in the absence of statute a carrier may by special contract limit its common-law liability as to every cause of injury excepting that arising from its own negligence.^ "Where, however, the loss or injury arises from the negligence of the carrier or its servants, the carrier is liable and any provision in the shipping ^New Jersey Steam Navigation Co. v. The Merchants' Bank; 6 How. 344; P. & R. R. R. V. Derby, 14 How. 468. 52 THE LAW OF CARRIERS OF GOODS contract attempting to relieve from such liability is in most jurisdictions void. Thus, in a shipment of goods from New York to Liverpool the bill of lading contained a clause by which defendant steamship company exempted itself from all responsibility for loss or damage by perils of the sea, arising from negligence of the master and crew of the ship. The court found that the case was governed by the law of the United States and that the agents of defendants were in fact negligent, which negligence caused the loss of the goods. It was ruled that the provi- sion in the bill of lading exempting the carrier from liability for loss arising from its negligence was against public policy and void, and the carrier was held liable for the full value of the goods. The law does not allow, said the court, a public carrier to avoid altogether its obligations to the public and to stipulate for exemp- tions which are unreasonable and improper, amounting to an abnegation of the essential duties of its employ- ment.® Furthermore, even though the loss or injury arise from one of the excepted causes such as the act of God or of the public enemy, the carrier is liable if its negligence resulted in the loss or injury by such cause. In England, however, and in some of the Ameri- can jurisdictions, the carrier may validly contract for exemption even against its own negligence.^ Necessity of consideration to support contract for exemption from liability. — The carrier is bound by law to accept goods tendered to it for transportation. If the carrier, therefore, inserts a provision in the ship- ping contract limiting its liability for loss or injury, it would seem in theory that there is no consideration 'Liverpool S. S. Co. v. Phenix Ins. Co., 129 U. S 397. 'Batson v. Donovan, 4 B. & Aid. 21; Magnin v. Dinsmore, 56 N. Y. 168, LIMITATION OF LIABILITY 53 to support this agreement by the shipper unless the carrier contracts to do something in addition to trans- porting the goods. Where the carrier has two rates for an article, one applicable where its liability is limited and a higher one applicable where it is un- limited, and the shipper in order to obtain the lower rate agrees to a limitation of the carrier's liability, there is a sufficient consideration to support the limita- tion.^ In Adams Express Co. v. Carnahan,® it appeared that an express company on receiving the goods gave the consignor a receipt therefor which limited the com- pany's liability to the sum fixed as the value of the property. The consignor was informed that the rate was 25 cents if the value did not exceed $50. She authorized the agent of the company to fix the value at $100, and was informed that the charges were 35 cents. The evidence indicated that she knew that the charges were graduated according to the value of the property. It was held that the agreement limiting the company's liability was based on a valid considera- tion and recovery was limited to the value specified. In some jurisdictions it is held that a stipulation in the shipping contract limiting liability which is based on no other consideration than the granting of the regular rate is not binding. In I. C. R. E. Co. V. Lancashire Insurance Co.," it appeared that there was but one rate open to the ship- per and it was held that inasmuch as no option was given to him a special provision limiting the common- law liability of the carrier was without consideration and void. So also in Ward v. M. P. Ry. Co.,^^ a contract sMcFadden v. Mo. P. R. R. Co., 92 Mo. 343. «29 Ind. App. 606. "79 Miss. 114. "168 Mo. 226. 54 THE LAW OP CARRIERS OP GOODS of shipment stated that the rate charged was special, and given in consideration of a limited valuation placed on the goods. The evidence showed that the rate charged for shipment was the regular rate. It was held that the shipper was not prevented from recover- ing the full value of the goods lost in transit. On the other hand, it has been urged that where the shipping contract stipulates for a limited liability, it should be presumed that the rate accorded was given in con- sideration of such stipulation.^^ Refusal by carrier of option to ship under common- law liability. — It has been held that a carrier cannot exact as a condition precedent for carrying stock or goods that the shipper sign a contract limiting the common-law liability. In K. P. R. R. Co. v. Reynolds,^* a railway company had in fact only one rate at which it carried or offered to carry cattle between certain points. It had posted, however, in the ofiSce of its agent at the point of origin other and higher rates. An owner of cattle, without anything having been said about any special contract, but with the consent of the railway company, placed his cattle in the company's cars for transportation. The agent of the railroad at point of origin then presented to the shipper a special contract for carrying cattle at the full rate at which the company carried cattle. The special contract con- tained a provision for limiting liability. The agent demanded that the shipper sign this contract or have his cattle unloaded and gave him no other option or alternative. It was held that the special contract, in "York Co. V. Central R. R. Co., 3 Wall. 107; Louisville, etc., Rv Co. V. Oden, 80 Ala. 38. • > j "17 Kan. 251. LIMITATION OF LIABILITY 55 so far as it attempted to restrict the liability of the railway company, was invalid. What liabilities of carrier may be limited.— By the weight of authority a carrier may limit its liability arising from any cause, so long as it does not attempt to exempt itself from losses resulting from its negli- gence. Thus, it is not liable for loss of property by fire, where the shipping contract expressly exempts it from such liability, unless there is evidence to show that the loss was caused by the failure of the carrier to exercise reasonable care.^* In like manner, a car- rier is released by its contract from all liability for loss from leakage and breakage when so stipulated, unless its negligence or misconduct co-operates in the loss.^^ So also as to loss of goods through theft, where the ship- ping contract contains an exception against loss by thieves or robbers, the limitation is valid unless the theft be invited or made easy through some negli- gence of the carrier.^* The refusal of the courts to permit the carrier to exempt itself from losses occurring through negligence is founded on reasons of public policy and is main- tained by the better view and by the weight of authority. Where a stipulation exempted a carrier from liability for loss while the property was in transit, or at places of transshipment, it was held not to relieve it from liability for loss occasioned by its negligent exposure during a delay in transportation, and which ordinary foresight should have guarded against.^^ In Adams Express Co. v. Spalding,^^ the shipping "York Co. V. C. R. R. Co., 70 U. S. 107. »5The Jefferson, 31 Fed. 489. "The Saratoga, 20 Fed. 869. "Thomaa v. Lancaster Mills, 71 Fed. 481, "10 Ky. Law Rep. 640. 56 THE LAW OF CARRIERS OF GOODS contract provided that the carrier should not be liable for breakage of or injury to glass, or any article of a fragile nature in any of the packages which it under- took to carry, and this stipulation was held void as against public policy, being a contract against liability for negligence. In Bank of Kentucky v. Adams Ex- press Co.,^® an exception in the bill of lading of an express company stipulated that the company was not to be liable in any manner, or to any extent, for any loss or damage or detention of the package, or its con- tents, occasioned by fire. The court ruled that this provision did not excuse the company from liability for the loss of the package by fire, if caused by the negligence of a railroad company to which the express company had confided a part of the duty it had assumed. The court stated that public policy demanded that the right of the owners to absolute security against the negligence of the carrier, and of all persons engaged in performing its duty, should not be taken away by any reservation in the shipping receipt. It follows from the above that by the weight of authority a carrier cannot by contract relieve itself from responsibility for the negligence of its agents or servants.^" Carrier's power to limit the extent of its liability. — It has been seen that the courts have zealously watched the attempts of the carrier to restrict its liability for loss or injury to the shipment and have in most juris- dictions denied this right in cases where the negligence of the carrier causes or contributes to the result. At this point a distinction should be carefully taken be- tween the attempt of the carrier to limit its liability i»93 U. S. 174. ^'Hudson V. M. P. R. R. Co., 92 Iowa 231. LIMITATION OF LIABILITY 57 and an effort on its part to ascertain the fair value of the goods tendered to it for shipment and to restrict its liability in case of loss or damage to the value placed upon the goods by the shipper. When goods are presented to the carrier for trans- portation, it is entitled to know their nature and value in order to determine for what charge it is willing to undertake their transportation. It is proper for the carrier to inquire as to the fragility of the goods, the likelihood of their spoiling or depreciating in value in transit, etc. For the same reason the carrier is entitled to know their value in order that it may de- termine the care and precaution required of it, and the risk involved, in their transportation. It follows, there- fore, that where the shipping contract contains a pro- vision that the goods are to be deemed not to exceed a certain value, and the carrier's liability is limited to that value, a very different situation is presented from that where the carrier simply attempts to avoid or cut down its liability for loss or injury. It is gen- erally held, therefore, that where the shipper and the carrier have fairly agreed on the value of the goods, and the shipping contract restricts the carrier's liability to that value, such restriction is valid, even though the loss occur through the carrier's negligence. Thus, in a shipment of high wines from Peoria to Boston, the bill of lading contained the stipulation that the goods were shipped at an agreed valuation of $20 per barrel. The goods were destroyed in a collision caused by the negligence of the carrier's servants. The court held that plaintiff could not recover in excess of the agreed valuation. Plaintiff, it said, voluntarily entered into the contract with the carrier and deliber- ately represented the value of the goods to be $20 per 58 THE LAW OF CARRIERS OP GOODS barrel. The compensation for carriage was fixed upon this value and plaintiff was estopped to show that it was of greater value than that represented. Although one of the results of such a contract, in the view of the court, was to limit the extent of the responsibility of the carrier for the negligence of its servants, this was not the purpose of the contract. The court further said: "No considerations of sound public policy require that such contract should be held invalid, or that a person who fixes a value upon the goods which he entrusts to the carrier should not be bound by his valuation. And where the responsibility of the carrier is limited to an agreed valuation, that limitation applies to losses arising from the negligence of the carrier as well as to those arising from other causes. The carrier may base its right of compensa- tion to some extent upon the value of the goods carried. This measures its risk and is an important element in fixing its compensation. If a person voluntarily represents and agrees that the goods delivered to the carrier are of certain value, and the carrier is thereby induced to grant him a reduced rate of compensation for carriage, such person ought to be barred by his representation and agreement. "^^ The validity of the limitation in such case, it will be seen, is placed on the ground of estoppel; that is to say, the shipper, having represented the goods to be of a certain value, and secured a rate based on such repre- sentation, cannot thereafter, in a suit for loss of or damage to them, ignore such representation and recover their full value. The validity of such a limitation of liability is fully considered in Hart v. Pa. R. E. Co.^^ In this case ^'Graves v. Lake Shore, etc., R. R. Co., 137 Maes. 33. 'ni2 U. S. 331. LIMITATION OP LIABILITY 59 five horses and other property were shipped in one car under a shipping contract which stated that the horses were to be transported "upon the following terms and conditions, which are admitted and accepted by me as just and reasonable: First, to pay freight thereon" at a rate specified "on the condition that the carrier assumes liability on the stock to the extent of the following agreed valuation : If horses or mules, not exceeding $200 each. If a chartered car, on the stock and contents in same, $1,200 for the carload. But no carrier shall be liable for the acts of the animals them- selves, nor for loss or damage arising from the condi- tion of the animals themselves, which risks, being be- yond the control of the company, are hereby assumed by the owner, and the carrier released therefrom." By the negligence of the railroad company or its servants, one of the horses was killed, and the others were injured and the other property was lost. In a suit to recover the damages, it appeared that the horses were race- horses, and plaintiff offered to show damages, based on their value, amounting to over $25,000. It was held that this evidence was inadmissible and that plaintiff was entitled to recover only the agreed valuation of $1,200. In Pacific Express Co. v. Foley,^^ an express company in receiving a box for carriage issued a receipt con- taining a stipulation that it was not to -be held liable "for any loss or damage of any box, package or thing for over $50, unless the just and true value thereof is herein stated." The court held that the express com- pany might limit its liability to an amount stated in a written receipt or special contract, in the event of loss of or injury to the goods through ordinary negligence, if the special contract was voluntarily and fairly "46 Kan. 457. 60 THE LAW OF CARRIERS OP GOODS entered into, and was just and reasonable in its terms. The stipulation referred to was held to be reasonable, and since it appeared to have been entered into freely and fairly, and there was nothing showing gross negli- gence, fraud, or intentional wrong on the part of the company, it was not liable for any loss or damage to the box in excess of $50. If the carrier wishes to limit its liability to an agreed valuation, it must act in fairness and good faith with the shipper. In McFadden v. M. P. Ey. Co.,^* it was said that whether a stipulation in the contract of ship- ment, whereby a common carrier limits its liability to a certain fixed sum for each head of stock to be trans- ported, shall limit the shipper to such sum in case the goods are destroyed by the carrier's negligence, de- pends on whether or not the shipper has received ade- quate consideration for the concession. If obtained from the shipper by the false representation that his goods are to be carried at a special and reduced rate' in consequence thereof, such a stipulation is not bind- ing upon him, in the absence of bad faith on his part toward the carrier. It may be well again to emphasize the difference in the case where the carrier attempts by special provi- sion in the shipping contract to avoid or cut down its liability for loss or injury even though occasioned by its negligence, and the case where it merely seeks in advance of transportation to arrive at an agreement with the shipper as to the fair value of the goods and to prevent recovery by the shipper above that value. It has been already noted that in a majority of juris- dictions in the United States the carrier cannot limit its liability as against its own negligence. '<92 Mo. 343. LIMITATION OF LIABILITY 61 This distinction is clearly drawn, in Hart v. Pa. R. R. Co.,*^ by Mr. Justice Blatchford, of the Supreme Court of the United States, who said: "Where a contract of the kind, signed by the shipper, is fairly made, agree- ing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negli- gence of the carrier the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be re- sponsible and the freight he received, and of protecting himself against extravagant and fanciful valuation. The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjlist and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in con- flict with public policy, if the shipper should be allowed to reap the benefit of the contract if there is no loss" and to repudiate it in case of loss." In many jurisdictions this distinction, however, is apparently not understood, and the shipper is allowed to recover the full value of the goods lost through the carrier's negligence despite the agreed valuation stipu- lated in the bill of lading. "112 U. S. 331. 62 THE LAW OF CARRIERS OF GOODS Where the carrier seeks to limit recovery to an agreed valuation, it is evident that there must be a fair and bona fide agreement between it and the shipper. If the shipping receipt and the circumstances attending the delivery of the goods to the carrier indicate merely an attempt on its part to limit its liability for loss occa- sioned by its negligence, and there is in fact no agree- ment between it and the shipper as to the fair value of the goods, the carrier should not be allowed to recover. In Louisville, etc., Ey. Co. v. Wynn,^" a valuable mare had been shipped without inquiry as to her value and the shipper had received a contract or receipt which provided, in general terms, that in case of injury to any horse shipped under it, the value at the place and date of shipment should govern the settlement, in which the amount claimed should not exceed $100. The court, in construing the receipt, held that it was an attempt to secure a partial exemption of liability for negligence when the law clearly forbade the carrier to secure by contract total exemption for loss thus occasioned. The court further held that there was in fact no bona fide agreed valuation, and that if the restriction should be upheld in behalf* of the carrier, it would enable it practically to nullify the rule forbidding exemption for total loss occasioned by the carrier's negligence. The court said: "We think it entirely illogical and unreasonable to say that the carrier may not absolve itself from liability for the whole value of property lost or destroyed through its negligence, but it may absolve itself from responsibility for one- half, three-fourths, seven-eighths, or nine-tenths of the loss so occasioned." 2«88 Tenn. 320. CHAPTER VI LIMITATION OF LIABILITY— Continued Carrier's right to impose conditions in regard to enforcing liability. — In the successful conduct of their business, it is necessary that carriers have the right to impose reasonable rules and regulations. In handling thousands of shipments of various kinds for the general public, efficiency can only be attained by requiring a certain degree of co-operation from the shipper. The carrier may therefore impose such regulations as are reasonable and necessary for the conduct of its business with accuracy, economy, and despatch. Right to limit time for filing claims. — Inasmuch as carriers are subject to numerous claims for loss and in- jury, the courts have deemed it proper to assist the carrier in the disposition thereof by enabling the car- rier to require them to be filed within a reasonable time in order that it may have an opportunity properly to investigate and pass upon them. Thus, in Express Co. v. Caldwell,^ an express company's shipping re- ceipt provided that the company should not be liable for any loss or damage unless claim should be made therefor within ninety days from the delivery of the package to the company. For the loss of the shipment, requiring one day's time in transit, no claim was made upon the express company within the period specified. It was held that the provision was valid and the «88 U. S. 264. 63 64 THE LAW OF CAEEIERS OF GOODS shipper could not recover. It was urged by the court that inasmuch as express companies carry thousands of packages and it is difficult to trace them after the lapse of any considerable time, it was a reasonable regulation to require the shipper, who ordinarily only ships occasionally, to inform the express company of any loss or damage in order to enable it to trace the parcels and recover them. The stipulation in ques- tion, the court said, did not seek to excuse defendant from the consequence of its negligence or from its legal liability. Nor did it shorten the statute of limitation. The stipulation was reasonable for the company's pro- tection. So, also, in a shipment of horses the shipping receipt provided that plaintiff, as a condition precedent to his right to recover damages for loss of or injury to the stock, should give notice in writing of his claim there- for to some officer of defendant or its nearest station agent, before the stock was removed from place of destination or before it was mingled with other stock. Plaintiff discovered that the horses had been injured and removed them a short distance from destination point and drove them across the country to his farm. He paid the charges at the destination point without any complaint and without any demand or notice re- specting the injuries. It was held that plaintiff could not recover. Inasmuch as the carrier was obliged to haul innumerable shipments and was unable to protect itself from fraudulent or mistaken claims unless it was promptly notified, the regulation was a reasonable one.* In some jurisdictions, however, restrictions of this sort appear not to be favored.^ 'Sprague v. M. P. R. R. Co., 34 Kan. 347. 'Brown v. Adams, 3 Willson, Civ. Cas. Ct. App. Sec. 390. LIMITATION OF LIABILITY 65 Regulations of this kind must be reasonable. In Jennings v. G. T. Ry. Co.,* a provision which limited to thirty-six hours from the delivery of the goods the time within which notice of the particulars of a claim for damage should be given was held to be void in so far as it applied to a shipment of a carload of potatoes. In the view of the court, the time allowed for making the examination and preferring the claim was unreason- ably short. Right of carrier to limit time to sue. — ^A provision in the bill of lading that action thereon must be brought within three months after the loss or damage occurs has been held to be reasonable."* In some jurisdictions, however, the courts refuse to allow the carrier to make such limitation. In Adams Express Co. v. Walker,* an agreement in a contract of shipment that no suit for damages should be brought unless commenced within six months after the loss was held to be in effect an attempt to vary the statute of limitation, and to be against public policy and unenforcible. Mode or form of limitation. — Inquiry has already been made as to the right of the carrier to limit its liability by agreement with the shipper. The question now arises as to the method by which the carrier may limit its liability and as to what transactions or course of dealing between carrier and shipper consti- tutes a contract of limitation. Right of carrier to limit liability by public notice.— In some of the earlier English cases the carrier was permitted to limit its liability simply by publishing n27 N. Y. 438. 5Cox V. v. C. R. R. Co., 170 Mass. 129. ni9 Ky. 121. ^King's Bench, 4 Burr. 2298. 66 THE LAW OP CARRIERS OF GOODS a public notice to that effect. In Gibson v. Paynton,^ plaintiff delivered to a stage coachman £100 in English money to be carried from Birmingham to London. The money was delivered by plaintiff in an old mail- bag and defendant was not informed as to the nature of the goods. For about a year and a half defendant had inserted an advertisement in a newspaper to the effect that he would not be answerable for money unless he had notice that the package contained money. Plain- tiff was accustomed to read this newspaper. Defend- ant also distributed hand-bills of the same import. It was well known in the community that the price for carrying money was three pence per pound, which was higher than the rate plaintiff would have paid in the case in question had the money been carried, as he intended, as ordinary goods. It was held, under the finding of the jury that plaintiff had knowledge of de- fendant's advertisement, that defendant was not liable, as in effect plaintiff relinquished the goods to de- fendant under a special contract limiting the latter 's lia- bility. So in another English case,* defendant, a common carrier by wagon, published an advertisement which was sent to plaintiff to the effect tliat he would not be accountable for any package above the value of £20 unless the package was entered and a special charge paid by the shipper. Silk of the value of £126, en- trusted by plaintiff to defendant for carriage and upon which no special charge was paid, was lost, and it was held that plaintiff could not recover above £20. At the present time in England the right of the carrier to limit its liability by a public notice has been abrogated by statute, but it may so limit it by special notice to the shipper. 'Harris v. Packwood, Common Pleas, 3 Taunt. 264. LIMITATION OF LIABILITY 67 In the United States the courts have never favored the right of the carrier to limit its liability by public notice. In HoUister v. Nowlen,» a public notice that packages sent on defendant's coach-line would be at the risk of the owner thereof was printed on a large sheet and had been kept placarded at Utica, N. Y., where plaintiff resided, and in the stage offices and pub- lic houses along defendant's lines. Plaintiff having taken passage from Utica to Buffalo, his trunk, which was strapped on the rear of the coach, was stolen with- out the fault of the carrier. The court held that defendant was liable for the loss of the trunk as he could not limit his liabilities as an insurer by merely posting a general notice and without proving that plaintiff accepted the limitation which the notice sought to impose. The court reasoned that the mere de- livery of the trunk by plaintiff to the carrier did not indi- cate that plaintiff assented to the limitation set forth in the public notice. Plaintiff had a right to demand that his trunk be carried under full liability. The delivery of the trunk to the carrier, therefore, might as reasonably be construed as a refusal to agree to limitation of lia- bility as it might be construed as an assent to such limitation. It will be observed that this case squarely lays down the principle that a limitation of liability cannot be prescribed by the carrier alone. It can arise only by agreement between the carrier and the shipper, whereby the latter assents to the curtailment of the liability imposed by law on the carrier. So also in Judson v. Western E. E. Co.,^" where the New York Central Eailroad received at Fonda, N. Y., plaintiff's goods consigned to Springfield, Mass., and at East Albany, N. Y., turned the goods over to defendant m Wend. 234. W6 Allen 486. 68 THE LAW OF CARRIERS OF GOODS railroad. The New York Central shipping receipt stated that it acted as plaintiff's agent in delivering the goods to the connecting carrier. Defendant con- necting carrier had for ten years issued freight tariffs stating that it did not assume risk beyond $200 on any package except by special agreement. These tariffs were posted in all the freight houses of the connecting carrier and were largely distributed to the public. At the time of the shipment in question a large number of these tariffs were delivered by the connecting carrier to the freight agents of the New York Central Railroad, the initial carrier. A similar notice had been inserted in the shipping receipts issued by defendant connecting carrier. Plaintiff had, however, no actual notice of these freight tariffs or shipping receipts but only such constructive notice as might be implied against him through the knowledge of them by the agents of the New York Central Railroad, the initial carrier. It was held that the liability of defendant connecting carrier for loss of the goods was not limited to the $200 specified. The court said that in order for the common carrier to effect a limitation of its liability a special agreement between it and the shipper must actually exist and it must be shown that the shipper has actually assented to the provision of limitation. In the view of the court a notice of limitation of liability, even if shown to be within the knowledge of the shipper, would, in the absence of evidence of his direct assent to its terms, afford no sufficient ground for the inference that he agreed to relinquish his right of having the goods carried at the carrier's risk; but on the contrary it would be quite as reasonable to infer that the carrier did not intend to rely upon a notice upon which it could not legally insist, as that the owner of goods LIMITATION OF LIABILITY 69 meant to surrender a right to which he was entitled by law. Contract limiting liability signed by shipper after loading the goods. — As seen in the preceding para- graph it is fundamental that the shipper must assent by special agreement in order to make the carrier's proposal of limited liability binding. It appears that if the shipper is so taken at a disadvantage by the carrier as to indicate he has not in fact assented to a limitation in the shipping contract, the provision of limitation is invaUd. In Welsh v. P. Ft. W. & C. E. Co.,^^ the owner of cattle, seeing that the doors of the cars in which they were to be shipped were unsafe, spoke to the railroad agent, who promised to have them repaired before loading. They were not repaired, and plaintiff loaded his cattle on them, they being the only cattle cars at the station, and then signed an agree- ment whereby he expressly undertook all risk from defective doors or fastenings. The doors broke open from the defect and the cattle fell out. It was held that the railroad company was liable despite the limitation contained in the agreement. So also in M. K. & T. Ey. Co. v. Carter,!^ it was held that a contract signed by a shipper, after he had placed his cattle on the cars of a railroad company, limiting the liability of the company, and induced by the refusal of the company to carry the cattle unless it was signed, was void. Where shipper fails to read contract*. — If the shipper accepts a bill of lading from the carrier containing a provision limiting the carrier's liability, it is not neces- sary that the shipper read the agreement in order to "10 Ohio St. 65. 129 Tex. Civ. App. 677. 70 THE LAW OP CARRIERS OP GOODS hold that he assented to the provision. The shipper in the absence of fraud or the exertion of improper influ- ences by the carrier is presumed to have read the bill of lading and to have assented to its terms." Contract by shipper's agent for limited liability. — If the duly authorized agent of the shipper, on delivery of the goods to the carrier, accepts a bill of lading limiting the carrier's liability, the shipper is bound thereby. Thus, where a shipper of live stock sent his agent in charge of the property, the agent was held to stand in the position of an owner, and a contract made by him limiting the liability of the carrier was held binding on the shipper, in the absence of fraud on the carrier's part.^* So where an agent shipped goods in his own name, without disclosing his agency to the carrier, the con- signee, who was his principal, was held not to be re- lieved from the limitation of liability contained in the bill of lading on the ground that the agent was not authorized to make such contract.^^ Again, in Nelson V. H. E. E. E. Co.,^" plaintiff purchased goods of K, di- recting that they should be shipped over defendant's road. They were taken to the depot by a cartman, who, in accordance with the custom of defendant company, was required to sign a contract releasing the company from liability for breakage except in certain contin- gencies. K was informed by the cartman of the con- tract, and made no dissent or request that the goods be returned. It was held that K, being authorized to "Western Ry. Co. v. Harwell, 91 Ala. 340. "Squire v. N. Y. C. R. R. Co., 98 Mass. 239. "York Co. V. Central R. R. Co., 70 U. S. 107. "40 N. Y. 498. LIMITATION OF LIABILITY 71 make the contract on behalf of plaintiff, had the power to depute such authority to the cartman." Consignee bound by provision limiting liability made by consignor. — Where the consignee has purchased goods and directed the consignor to ship same, the consignor becomes the agent of the consignee in deliv- ering the goods to the carrier and taking a bill of lading therefor. Where he accepts a bill of lading containing exemptions from liability on the part of the carrier, the consignee is bound thereby.^* In Nel- son V. H. R. R. R. Co.,^^ the purchaser of a mirror directed the seller to deliver the same in good order to a certain railroad for transportation to a certain point. The mirror could not be carried in a closed car. It was held that the seller had authority to contract that the mirror should be carried in an open car and that the company should not be responsible for damage except that caused by collision or running from the track, resulting from its negligence. Limitation by provision in bill of lading or shipping receipt. — The usual means employed by the carrier in effecting with the shipper an agreement for a limitation of liability is the insertion of a provision to that effect in the bill of lading or shipping receipt. Although this is the usual method, there would seem to be no valid reason why a clear oral agreement between the shipper and the carrier limiting liability should not be valid. The bill of lading or shipping receipt does not consti- tute the agreement between shipper and carrier, but is only evidence thereof. The essential thing is that I'Nelaon v. H. R. R. R. Co., 48 N. Y. 498. "Brown v. L. & N. R. R. Co., 36 111. App. 140. "48 N. Y. 948. 72 THE LAW OF CARRIERS OF GOODS the minds of the shipper and carrier should meet so as to result in the assent of both parties to the proposi- tion of limiting liability. What constitutes a special agreement for the limita- tion of liability.— In M. C. R. R. Co. v. Mineral Springs Mfg. Co.,2" it was held that an unsigned general notice that the carrier limited its liability printed on the back of the receipt did not amoimt to a special agreement, although the receipt with such notice on it may have been taken by the consignor without dissent. On the other hand, in Giles v. Fargo,^^ a receipt for fruit shipped provided that the carrier should not be liable for injury to articles of freight during transportation, occasioned by the weather, accidental decay, or natural tendency to decay, and that fruits would be taken only at the owner's risk. These provisions were known to the shipper. It was held that they amounted to a special contract of limitation. In Brehme v. Adams Express Co.,^^ shipper, on deliv- ering a package of goods to an express company, re- tained as evidence of the agreement the printed receipt of the company, in which it was stipulated that in no case "shall the holder hereof demand beyond $50, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless especially in- sured" by the company, "and so specified in this receipt." The contents of the package were unknown to the company and no statement of value was made by plaintiff at the time of its receipt. The value of the package was $675. The court held that the provisions in the receipt constituted under the circumstances a »83 U. 8. 319. M17 N. Y. Supp. 476. »225 Md. 328. LIMITATION OF LIABILITY 73 special contract between the parties and that the ship- per could not recover above the amount limited. It will be seen from these cases that the provision in the shipping receipt which attempts to limit the carrier's liability must be clear. Where, however, the provision is definite and the shipping receipt is taken by the par- ties as evidencing the contract, it constitutes a special agreement as to limitation of liability. Requirement that shipper know of and assent to the stipulation in the shipping contract. — ^Assuming that the carrier, upon receiving the goods, hands to the shipper a bill of lading or shipping receipt containing a clear and definite stipulation for limitation of liability, the question arises as to what amounts to an assent to the stipulation by the shipper. If he signs the bill of lading or shipping receipt, his assent to the provision cannot, of course, be questioned; this is true in the absence of fraud or the exertion of undue pressure by the carrier, even though the shipper does not read the bill or receipt and does not, in fact, know the con- tents thereof. Suppose, however, that the shipper does nothing by way of assenting to the provisions of the bill or receipt except to take the same from the carrier without objection. Does this amount to such assent by the shipper as to result in a special agreement for limited liability? By the better view and the weight of author- ity it seems that the shipper is in such case bound by the stipulation. In Kallman v. United States Express Co.,^' the receipt of an express company contained a stipulation that the company would not be liable for over $150, unless the true value of the package was stated. Plaintiff deliv- ered a package to the company worth in excess of $150 2'3 Kan. 205. 74 THE LAW OF CARRIERS OF GOODS without stating its value. In an action for loss of the package, plaintiff sought to recover its full value on the ground that he did not know and assent to the provi- sions of the receipt. It was held, however, that, having accepted the receipt without objection, he was bound by its terms. So also in McMillan v. M. S. & N. I. R. E. Co.,^* the court held that where a bill of lading is accepted by the shipper, exemptions from liability for losses arising from specified causes contained therein will be recog- nized as a part of the contract, though not distinctly called to the shipper's notice. It is essential, however, to the carrier's right to hold the shipper to the terms of the shipping receipt that no advantage be exercised over the shipper or fraud practiced upon him in delivering the shipping receipt to him as embodying the special agreement of limita- tion. In Boorman v. American Express Co.,''^ it was held that where the shipper of goods, who has pre- viously entered into an oral agreement with a common carrier, takes a receipt for the same, he has a right to assume, in the absence of notice to the contrary, that his agreement is embraced in the paper or receipt, or at least that his receipt contains nothing to the con- trary; and that it is in the nature of fraud on the part of the carrier, having entered into such oral agreement, to insert in the receipt a contract of an entirely different character, and present it to the ship- per without calling his attention to it or getting his assent. In some jurisdictions the courts seem to hold that the mere taking of a receipt containing a stipulation for a limited liability by the shipper without objection "16 Mich. 79. 2521 Wis. 152. LIMITATION OF LIABILITY 75 thereto on his part is not sufficient evidence of his as- sent to the stipulation. In Adams Express Co. v. Haynes,^^ the court held that where a shipping receipt restricts the common-law liability of the carrier in case of loss, the acceptance of the receipt by the shipper will not render the restriction binding on him unless he accepts it with knowledge of and assent to the restric- tion. The view in this state seems to be that whether the owner of the goods has assented to the terms of the receipt is a question of fact to be determined on evi- dence outside the receipt and from the attending cir- cumstances. Interpretation of provisions in shipping contract limiting liability. — Inasmuch as the courts have with considerable reluctance permitted the carrier to limit its liability by special contract, stipulations in the ship- ping receipt or bill of lading attempting so to limit liability are strictly construed against the carrier. If the carrier wishes to avoid its common-law liability it must do so by stipulations clear and unambiguous in terms. This is especially true where the carrier seeks to avoid responsibility for the consequences of its negligence. Even in those jurisdictions which permit the carrier to avoid or cut down its liability for loss of and injury to the goods caused by its negligence, the special agreement must specifically exempt from the consequences of negligence, and the mere general pro- vision that the carrier is exempted from all liability will not suffice. For example, a carrier by boat which has received goods under a contract exempting from loss by fire is nevertheless liable to the shipper for loss by fire caused by the carrier's negligence and by 2842 lU. 89. 76 THE LAW OF CARRIERS OF GOODS its failure to have on the boat proper appliances for extinguishing fire.^'' So likewise in United States Ex- press Co. V. Kountze,^* it appeared that there were two roads open for the forwarding of gold shipped via de- fendant express company. One of these was more expedi- tious than the other, but ran through a country infested with robbers, making it more dangerous. The express company sent the gold by the dangerous road and it was lost through the robbery of defendant's cars. The con- tract exempted the carrier from liability for loss by robbery. It was held, however, that this provision did not prevent a recovery by the shipper since it did not specifically provide for loss due to the negligence of the carrier. In a case arising under the law of New York, where the courts have allowed the carrier to provide against the consequences of its own negligence, goods were forwarded under a bill of lading containing a clause releasing the company from liability "for damage or loss to any article from or by fire or explo- sion of any kind." The goods were destroyed by fire kindled by sparks from the locomotive hauling them. It was held that the special clause did not exempt the company from liability for loss by fire occasioned by the omission to apply to the locomotive a proper apparatus to prevent the emission of sparks.^** The tendency of the courts to construe provisions limiting liability strictly against the carrier is further shown in Guillaume v. Hamburgh & A. Packet Co.^" By a provision in the bill of lading the carrier agreed to deliver merchandise in good order, "all loss and damage from any act, neglect, or fault whatsoever of the pilot, master, or mariners being excepted, and the owners "New Jersey Steam Navigation Co. v. Merchants' Bank, 47 U. S. 344. 2875 U. S. 342. ^oSteinweg v. Erie R. R. Co., 43 N. Y. 123. 3''42 N. Y. 212. LIMITATION OP LIABILITY 77 to be in no way liable for any consequences above ex- cepted." It was held that this provision should be construed as contemplating only those hazards which attend the transportation of the goods, and not as in- tended to relieve the defendants from liability for the negligent act of their mate in delivering the case of goods to a person who exhibited no authority from the consignee to receipt it, and who was not, in fact, so authorized. So in L. & N. R. K. Co. v. Barbour,*^ it was held that where the carrier's unreasonable dealing in forwarding the goods has left them where they would not have been had it used due diligence, and they are there destroyed by fire, the carrier is liable, even though the shipping contract stipulates that it was not to be liable for loss by fire, since the contract must be construed as relating to a case where the carrier has used due dili- gence. So also in Nicholas v. N. Y. C. & H. R. R. R. Co.," a shipping contract contained, among a number of ex- emptions, one exempting the carrier from liability for "damage occasioned by delays from any cause or from change of weather." It was held, in an action for the loss of trees shipped, caused by the negligent delay of defendant in the transportation, that such a loss was not covered by the exemption, since a carrier can- not exempt itself from liability for its own negligence, except by a stipulation clear and explicit. Again, in I. & G. N. R. R. Co. v. Server,^^ where a stipulation in the shipping contract stated that the car- rier would not be liable for delay caused by a strike, it was held that this did not exempt it from liability "9 Ky. Law Rep. 934. "89 N. Y. 170. "3 Willson, Civ. Cas. Ct. App. Sec. 442. 78 THE LAW OF CARRIERS OP GOODS for delay occasioned by a strike which the carrier could have suppressed by the exercise of diligence. 1. Limitation of Liability as to Inteestate Shipments Under the Caemack Amendment of the Inteestate Commerce Act In General. — The foregoing discussion of limitation of liability by the carrier refers to the situation as it existed under the common law. The principles set forth above are still very important in all intrastate shipments, where the rules of the common law are applied, unaffected by any federal legislation. They are also important as affording a basis for understand- ing the law relating to interstate shipments as it is modified by the Carmack Amendment to the Interstate Commerce Act. Text of the Carmack Amendment. — The portion of the Carmack Amendment relating to the limitation of liability reads as follows: "That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transpor- tation company to which such property may be deliv- ered, or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." LIMITATION OF LIABILITY 79 Construction of the amendment. — It will be seen that the amendment provides (1) that the initial carrier shall be liable for loss or damage occurring on the line of connecting carrier, and (2) that no contract shall ex- empt it from such liability. The United States Supreme Court and the state courts, with respect to the first provision mentioned, have given a broad interpreta- tion fixing upon the initial carrier responsibility for loss or injury occurring on the lines of the connecting carrier. In G. H. & S. A. Ey. Co. v. Wallace,^* it was held that under the amendment, wherever the carrier voluntarily accepts goods for shipment to a point on another line in another state, it is conclusively treated as having made a through contract and as though the points of destination were on its own line, and is liable for any loss or damage occurring on its own line or that of a connecting carrier. In A. C. L. R. E. Co. v. Eiver- side Mills,^^ it was said that the effect of the Carmack Amendment was to deny to the initial carrier of an interstate shipment the former right to make a con- tract limiting liability to its own line. So in Pittsburgh Ey. Co. V. Mitchell,^* it was held that a provision in the bill of lading issued on an interstate shipment limit- ing the carrier's liability to loss occurring on its own line was void as being in conflict with the Carmack Amendment. ' Liability of the initial carrier for loss or injury caused by negligence of the connecting carrier. — In Shultz V. Eailroad,*'^ it was held that where defendant initial carrier accepted in New York goods destined to another state, it was liable under the Carmack Amend- 5^223 U. S. 481. »5219 U. S. 186. 3«99 N. E. 735. "122 N. Y. Supp. 445. 80 THE LAW OF CARRIERS OF GOODS ment for damage to the goods resulting frona the negli- gence of the connecting carrier in loading same into an unsuitable car, although the initial carrier's line lay- wholly in the state of New York. Loss by fire on line of connecting carrier. — In S. P. R. Co. V. Weatherford Cotton Mills,^^ it was held that under the Carmack Amendment a stipulation La the bill of lading of an interstate shipment for exemption from liability for loss of or damage to the goods occasioned by fire was without effect, if the fire was due to the negligence of any carrier handling the goods. It will be noted that such a provision of limitation would have been invalid if the initial carrier had attempted to apply it to loss or injury occurring on its own line; and the decision is to the effect that such a provision is likewise invalid under the amendment where the loss occurs on the line of the connecting carrier. Effect of amendment on intermediate carrier. — In Gibson & Draughn v. Little Eock & H. S. W. Ry. Co.," it was held that although the Carmack Amendment rendered the initial carrier liable for loss or injury to interstate shipments caused by its own or connect- ing line's negligence, the connecting carrier was also liable to the shipper for the damage resulting from its own negligence. In Otrich v. St. L. I. M. & S. F. Ry. Co.,*" it was held that, although under the Carmack Amendment the initial carrier is jointly liable for loss or damage occurring on the line of the connecting car- rier, no recovery could be had of the connecting carrier for loss or damage taking place, without its negligence, 3S134 S. W. 778, sn24 S. W. 1033. 23 lU. 197. »113 Mass. 280. 104 THE LAW OF CARRIERS OP GOODS the residence of the consignee, but he was notified of its arrival by defendant's agent. The evidence indicated that West Mansfield was a small station and that the express companies had been accustomed to keep the parcels in the baggage room, notify the consignees of their arrival, and deliver the goods when called for at the station. The trunk in question was lost while at the station. It was held that defendant was liable as a com- mon carrier, as it had not made personal delivery of the trunk so as to relieve it from the exceptional liability imposed on such carrier. It was stated that the evidence did not disclose a general usage as to the manner of delivery at West Mansfield, but only a local usage, and that plaintiff could not be presumed to have contracted with defendant with the knowledge of such local prac- tice so as to make the giving of the notice a substitute for personal delivery. Duty of express company to find consignee. — The duty of the express company to deliver to the consignee at his residence or place of business necessarily involves an obligation on its part to exercise reasonable diligence in finding the consignee. In Witbeck v. Holland,' the Adams Express Com- pany received from plaintiff, Martin Witbeck, at Harts Island, N. Y., a package containing $320, to be delivered to plaintiff at Schenectady, N. Y., no street address being stated in the receipt. By the receipt the Adams Express Company agreed to forward the package to its agent nearest and most convenient to the point of destination, and there to deliver it to other parties to complete the transportation, such delivery to terminate all liability of the Adams Express Company. '45 N. Y. 13, DELIVERY BY CARRIER 105 At New York City the package was turned over to defendant American Express Company, which carried it to Schenectady. The agent at Schenectady did not know plaintiff and when the package arrived looked at the city directory and did not find his name in it. The next day he filled out a notice and addressed it to Martin "Whitbeck," Schenectady, and put it in the post-office. Between one and three days thereafter the agent inquired of two men, conductors upon a railroad running from Schenectady, and also of the city treasurer, whether they knew Martin "Whitbeck," who replied that they did not. The agent made no further effort to find the consignee, but deposited the package in the company's safe and it was stolen by burglars. Plaintiff did not receive the post-office notice, though inquiries were made several times by him for his mail. It was held that the American Express Com- pany was liable as a common carrier for the loss of the money. Its duty was to deliver the pack- age to plaintiff personally and it could be relieved of such duty only if after the use of reasonable diligence he could not be found. It was stated that de- fendant's efforts did not amount to reasonable diligence, especially in view of the fact that the agent inquired after "Whitbeck" instead of Witbeck and made the same mistake in the mailed notice ; nor was plaintiff prevented from recovering it by his failure to specify his street address in the receipt, since defendant accepted the pack- age without such address. The court stated that if the efforts to find the consignee had been in the case in ques- tion reasonably diligent, defendant might have dis- charged itself from further responsibility as a common carrier by depositing the property in a suitable place for the owner. But since express companies were estab- lished for the very purpose of extending to the public 106 • THE LAW OP CARRIERS OP GOODS the advantages of personal delivery enjoyed in all cases of land carriage prior to the introduction of transporta- tion by rail, defendant could not be held to have relieved itself of this duty by the course pursued by its agent. Duty of rail carrier to hold goods after arrival. — Whether a railroad after the arrival of goods at its station must hold them subject to the liability of a com- mon carrier until consignee has a reasonable time in which to call for them is a question which has met with conflicting' decisions in the courts of this country. It will be observed on the one hand that the course of trans- portation has been completed. The carrier has nothing further to do in the matter of moving the goods from one place to another. It has been urged, therefore, that upon the arrival of the goods at destination the railroad should not longer be subject to an extraordinary respon- sibility in handling and safeguarding them. "Whatever he does thereafter is for the convenience of the consignee and is outside the peculiar functions of a carrier. In Norway Plains Co. v. B. & M. E. E.,* a parcel of goods shipped by plaintiff from Eochester, N. H., to Boston, Mass., and consigned to himself arrived on Saturday. The truck man, the agent of plaintiff, knew of their arrival, although no special notice was given. The same was true of a second shipment arriving on Monday. The goods were not called for and were immediately stored in the railroad's warehouse or depot and were burned by accidental fire on Monday night. It was held by the Massachusetts court that the railroad was not liable as a common carrier for the loss of the goods, since its relation as com- mon carriei ceased upon the unloading of the goods upon the depot platform. It was urged that the •1 Gray of 263. DELIVERY BY CARRIER 107 carrier was acting only as a warehouseman at the time of the fire and was bound only to use reasonable care in storing and keeping the goods in a safe place. The duty of the railroad was to carry the goods safely to the place of destination, and there discharge them on the platform, and then and there deliver them to the person entitled to receive them if he was on hand to take them ; or if he was not there ready to receive them, it was the carrier's duty to place them securely and keep them safely as a warehouseman for a reasonable time, ready to be delivered when called for. Although there was no separate charge for storage, beyond the freight to be paid, fixed by the railroad as a compensation for the whole service, it was paid as well for the temporary storage as for the carriage. It was urged that the rail- road was subject to two distinct liabilities : first, that of common carrier and afterwards that of warehouse- man. The court stated that in the case of goods trans- ported by the railroad, either it was not the duty of the company as a common carrier to deliver the goods to the consignee or that the delivery by itself as a common carrier to itself as a keeper for hire was a delivery which discharged its responsibility and exceptional liability as a common carrier. In support of this view, which has been taken by many of the courts of this country, it has also been urged that inasmuch as the time of arrival of goods is ordinarily definite and certain, and the consignee is usually informed by the consignor that the goods are on the way, it would be unduly burdensome, in view of the multiplicity of shipments, to impose upon the railroad the duty of notifying consignes of the arrival of goods and of holding the goods at their peril for a reasonable time after the giving of notice. 108 THE LAW OF CARRIERS OF GOODS Other American courts have taken a different view. It will be recalled that the reason assigned in the early cases for subjecting the common carrier to exceptional respon- sibility in safeguarding the goods was the fear that the carrier might through collusion or fraud steal, lose, or injure them. During the course of transportation the goods were in the sole custody and control of the carrier. It was impossible for the shipper ordinarily to know what was happening to them, and it would be very diffi- cult for him to prove either negligence or fraud against the carrier. It has been argued that this reason for subjecting the carrier to exceptional liability applies with equal force during the period between the arrival of the goods and the actual taking possession of them by the consignee. It has been urged as impracticable to require or expect the consignee to watch the exact time of arrival of trains and to be on the spot at the proper moment equipped to haul the goods from the station to his place of business. And since a period must ordinarily elapse during which the goods are in the complete custody and control of the railroad, giving it the same opportunity for undiscoverable negligent conduct, the liability as common carrier ought not to be terminated until, accord- ing to one view, a reasonable time has elapsed after arrival of the goods,° or until, according to another view, the consignee has received notice of the arrival of the shipment and has had reasonable time thereafter to gain possession of it.* SuflBciency of notice of arrival. — In L. L. & G. R. R. Co. V. Maris,'' the view was taken that the liability of the railroad as common carrier continued until the expiration •Moses V. Railroad, 32 N. H. 523. •Fenner v. Railroad, 44 N. Y. 505. '16 Kans. 333. DELIVERY BY CARRIER 109 of a reasonable time from the arrival of the goods, and the question was as to what constituted such reasonable time. Plaintiff was a merchant at Winfield, a point about 90 miles west of Independence, Kans., which could be reached from Independence only by wagon. Goods con- signed to plaintiff at Independence arrived on the fourth and seventh days of January and were placed in the depot, where, on the fifteenth of January, they were con- sumed by accidental fire. Immediately upon their arrival at Independence, notice was forwarded by mail to plaintiff at Winfield, which, on account of disease among the horses, did not reach plaintiff until January 20. By special agreement, notice of the arrival of the gooda was to be given by mail in the manner mentioned. This course had been pursued on previous shipments, and the form of notice used stated that the railroad 's liability as a common carrier ended upon the arrival of the goods at the depot at Independence. It was held that the railroad was not liable as a com- mon carrier for the loss. A reasonable time within the meaning of the rule was not a time, it was stated, varying with the distance, convenience, or necessities of the con- signee, but was such time as would enable one living in the vicinity of the place of delivery, in the ordinary course of business, within the usual hours of business, to inspect and remove the goods. Plaintiff might have com- municated by mail with the railroad, it was said, or gone himself, or sent someone to Independence to make a new arrangement for the receiving and storing of the goods. The court urged that while the rule making the railroad liable as common carrier for a reasonable time after no- tice of arrival extended a little the duration of the car- rier's obligation, it only did so, so far as was necessary to protect the shipper under the usual circumstances and 110 THE LAW OF CARRIERS OP GOODS conditions. Inasmucli as the goods remain in the cus- tody of the carrier and subject to his control and the exact moment of arrival can seldom be known to the con- signee, it would be unreasonable to compel him to remain at the depot of the carrier awaiting the arrival of the goods, or to assume all the risks of the uncertainties in the delay of transportation and time of arrival; but the obligation of the carrier should not be extended to meet the peculiar needs of a particular shipper. Delivery delayed for convenience of carrier. — In Faulkner v. Hart,® goods shipped by plaintiffs to Boston were called for on the day of their arrival, but delivery was refused by the carrier until the next day on the ground that it was not convenient for it to deliver them. During the following night the goods were destroyed by accidental fire while in defendant's warehouse. The rail- road was held liable as a common carrier. Inasmuch as it was the carrier's duty not only to transport the goods but also to deliver them, and the failure to complete the obligation as a common carrier to deliver them was occasioned through no fault of the shipper, but at the instance of the carrier, the functions of the railroad as a common carrier were prolonged by its own acts, and it must be held liable for the loss, irrespective of negligence on its part. Delivery of baggage. — As to baggage that has reached its final destination, it has been held ® that the railroad must, on arrival of the baggage, have it ready for deliv- ery upon the platform at the usual place of delivery, until the owner can, in the exercise of due diligence, call for and receive it. The owner must call for and remove it within a reasonable time. If he does not do so, it is 882 N. Y. 413. 'Ouimit V. Henshaw 35 Vt. 605. DELIVERY BY CARRIER 111 the duty of the railroad to put it in its baggage room and keep it for the owner. It is discharged from liability as a carrier as soon as it has kept the package ready for delivery a reasonable time and the owner has not called for it. Storage of goods by initial carrier pending delivery to connecting carrier. — In Railroad Co. v. Manufactur- ing Co,,^" plaintiff shipper delivered at Jackson, Mich., to defendant railroad a quantity of wool consigned to a point in Connecticut, with instructions to defendant to deliver same at Detroit to a steamboat line for trans- portation over the Great Lakes. Upon arrival of the wool at Detroit, there was an accumulation of freight and the single steamship line in operation was unable promptly to receive and carry the same. Defendant stored it for six days in its warehouse, awaiting the time when the steamship company could receive it, and while so stored the wool was destroyed by accidental fire. The initial carrier at the time it received the wool at Jackson knew that the traffic of the steamship company at Detroit was congested and that prompt shipment from Detroit could not be made. The bill of lading provided that the wool should be at the risk of the owners while in the railroad's warehouse except in case of negligence. It was held that defendant, the initial carrier, was liable for the loss of the wool. It is the duty of a carrier, the court stated, in the absence of a special contract, to carry safely to the end of its line and deliver to the next carrier in the route beyond. Public policy will not allow the carrier to escape responsibility on storing goods at the end of its route without delivery or an attempt to deliver to the connecting carrier. If there be a necessity for storage, it will be considered a mere accessory to th« "16 WaU 318. 112 THE LAW OF CARRIERS OF GOODS transportation and not as changing the nature of the bailment. The simple deposit of the goods by the carrier in its depot unaccompanied by any act indicating an intention to renounce the obligation of a carrier will not change or even modify its liability. In the case cited, the initial carrier neither delivered nor offered to deliver the wool to the steamship company; nor did it do any act manifesting an intention to divest itself of the character of carrier and assume that of warehouseman. Before it received the goods it knew the congested condition of the steamship traffic and had no right to expect to make prompt delivery. It could not, therefore, maintain that it had held the goods as a common carrier for a reason- able time and that such time having expired, it was acting as forwarder or warehouseman. Waiver by consignee of right to delivery by express company at place of business. — In Sweet v. Barney ,^^ plaintiffs, bankers at Danville, N. Y., delivered to defendant express company a package of money directed to the Peoples Bank, 173 Canal Street, New York, N. Y. The Peoples Bank was accustomed to send its porter to defendant's office at New York to receive the money brought by defendant. Indeed, this was the usual method of business between the bank and the express company, and no objection was ever made thereto by the bank. There was nothing on the package in question except the name and address of the consignee to indicate the own- ership of the money. The package was stolen from the porter after being delivered to him at defendant's office. The court held that the express company was not liable for the loss. Prima facie the title of the money was in the consignee and the express company was entitled to ** treat the consignee as the owner thereof. While the "23 N. Y. 335. DELIVERY BY CARRIER 113 consignee was entitled to have the money delivered to it at its place of business, it might waive such privilege, as it did in this case, and authorize the company to deliver it to its porter. Duty to deliver to consignee having legal title. — A firm of three members delivered goods to defendant railroad consigned to plaintiffs and properly marked with the name of plaintiffs. Plaintiffs had made ad- vances upon the goods and they were shipped in pursu- ance of an agreement between them and the consignors in settlement of such advances. Invoices of the goods were forwarded to plaintiffs by mail. Thereafter one of the members of the consigning firm, acting in the firm name, changed the destination of the goods and defendant deliv- ered them in accordance with such changed destination to another person. It was ruled that defendant was liable to plaintiffs for the conversion of the goods. The title to the goods passed to plaintiffs upon delivery of them to the carrier, and plaintiffs held the title in trust to sell the goods to reimburse themselves and return the surplus to the consignors. At the time the member of the consigning firm attempted to change the destination the legal title was in plaintiffs and said firm had no con- trol over the goods. Delay of shipment upon order of one not having legal title.— In Armentrout v. St. L. K. C. & N. E. R. Co.," plaintiff bought a quantity of eggs from M. & L. at Ottumwa, Iowa, paid a small amount in cash and agreed with M. & L. that for the balance of the purchase price they should draw against the shipment on B. & Co., commission merchants, to whom the eggs were to be consigned. On November 25, M. & L. delivered the eggs "1 Mo. App. 158. 114 THE LAW OF CAREIBRS OP GOODS to defendant railroad and took a bill of lading, in which the eggs were consigned to B. & Co. M. & L. requested defendant to hold the eggs until the draft was accepted by B. & Co. Consequently, the eggs were not shipped until November 28, after B. & Co. had accepted the draft. This delay in shipment caused the eggs to freeze in transit. B. & Co., the commission merchants, were there- fore obliged to sell them at less than market price. The court held that plaintiff was entitled to recover of defendant the difference between the market price and the price at which the eggs were sold. Since the eggs were delivered to defendant on the twenty-fifth and a bill of lading with B. & Co. named as consignees was issued, the title passed to B. & Co. as agents of plaintiff. M. & L., therefore, had no further control over them and de- fendant had no right to hold the eggs back at the direc- tion of M. & L. Identification of consignee. — In McEntee v. New Jer- sey Steamboat Co.," defendant carrier received at Albany, N. Y., bundles of sash and blinds addressed to "McEntee, New York." Plaintiff McEntee, upon arrival of the goods, demanded them of defendant, which refused to deliver them upon the tender of the charges. Defendant introduced testimony to show that a delivery was offered on condition that plaintiff would produce any paper showing ownership or authority to receive the goods, or his identity as the consignee. In a suit for conversion the trial court ruled that the only question was whether the freight money was tendered and that the company was bound to deliver the goods to any person calling for them and had no right to insist upon any person proving ownership. The reviewing court held the instruction was erroneous. Defendant was bound, it was "45 N. Y. 34. DELIVERY BY CARRIER 115 held, at its peril to deliver the goods to the consignee and to no other person, and was entitled to make a qualified refusal of delivery until reasonable evidence was offered to show that plaintiff was the "McEntee" named in the label on the goods. This was especially true in view of the failure of plaintiff to produce the bill of lading and in view of the defective character of the address. Delivery where title reserved in consignor. — In Pa. R. E. Co. V. Stearn & Spiegel," plaintiff shipped a carload of dry bones from Bay City, Mich., to Landenburg, Pa., consigned to themselves. At the same time they drew a draft on one Whann, at Landenburg, for the sale price. The bill of lading showing the consignment to plaintiff was attached to a draft and mailed to a bank at destina- tion. The invoice and a letter showing that there was a draft and bill of lading and indicating that Whann was required to protect the draft were mailed to Whann. The carrier's agent at Landenburg was shown by Whann the invoice and the letter, but not the bill of lading, and the agent delivered the goods to Whann without requir- ing the bill of lading and without an acceptance of the draft. Whann afterwards failed. It was held that the carrier was liable for the price of the goods, as it had no right to deliver the goods to Whann without an acceptance of the draft. The bill of lading was the symbol of the property. There should have been no delivery except in accordance with it. The invoice standing alone furnished no proof of title. Delivery to consignee holding unendorsed bill of lading made out to consignor. — ^Plaintiff shipped a quantity of canned goods from Elgin, Iowa, to Pueblo, Colo., consigned to himself in the bill of lading and so "119 Pa. St. 24. 116 THE LAW OP CARRIEES OF GOODS marked on the box. The goods were shipped pursuant to an order from one Evans, at Pueblo. Plaintiff drew a draft on Evans for the price of the goods and sent it to a bank at Pueblo, together with an order on defendant carrier to deliver the goods to Evans. The bank was instructed to deliver the order to Evans upon payment of the draft. At the same time plaintiff sent to Evans the bill of lading unendorsed, instructing him that he was to pay the draft and obtain the order. Evans did not pay the draft or obtain the order, but presented the unen- dorsed bill of lading and secured the goods from defend- ant. Evans was insolvent. The railroad was held liable for the price of the goods on the ground that the bill of lading, being made out to plaintiff and unendorsed, showed that plaintiff intended to retain the title. The mere sending of the bill of lading to Evans without endorsement was not sufficient to show an intent on the part of plaintiff to transfer the title to Evans.^^ Negotiability of bills of lading. — In Shaw v. Railroad Co.," a St. Louis bank purchased of N. & Co., of St. Louis, the original bill of lading for 170 bales of cotton, and a draft for the sale price drawn on Kuhn & Bros., of Philadelphia, the original bill of lading being endorsed in blank. N. & Co. then forwarded a duplicate bill of lading to Kuhn & Bros. The St. Louis bank forwarded the draft, with the original bill of lading attached, to a Philadelphia bank, which sent its messenger with the draft and original bill of lading to Kuhn & Bros, for acceptance. One of the members of Kuhn & Bros, accepted the draft, brai? earreptitiously substituted the duplicate for the original bill of lading. The railroad over which the cotton was shipped delivered it to S. & E., "Weyand v. A. T. & S. F. R. R. Co., 75 Iowa 673. "101 U. S. 557. DELIVEEY BY CARRIER 117 who became the purchasers and endorsers of the original bill of lading from Kuhn & Bros. In a replevin suit by the St. Louis bank to recover the cotton, it was held that S. & E. did not receive the title to the goods so as to have the right to receive them, as consignees, from the railroad. The court stated that bills of lading were not negotiable instruments in the same sense as promissory notes and bills of exchange, so as to protect S. & E. in their purchase of the original bill of lading from Kuhn & Bros., who had stolen the same. This was held to be true despite statutes in Pennsylvania and Missouri making bills of lading negotiable, since it was the purpose of those statutes merely to make the title to the bills of lading pass by endorsement, but it was not their purpose to invest them with the other attributes of promissory notes and bills of exchange. The bank therefore was allowed to recover the cotton. Delivery to true owner. — A carrier is protected if it delivers the goods to the true owner, even though they may have been entrusted to it by some other person. This is the rule whether the bailor mistakenly and honestly supposes himself to be the true owner, or whether he has fraudulently or wrongfully secured possession from the true owner.^'' Delivery to holder of forged order. — ^In Powell v. Myers,^* plaintiff's son boarded defendant's boat leaving Newburg at 5 p. m. and arriving at New York between 9 and 10 the same evening, having placed plaintiff's trunk with the officers of the boat. It was customary, upon the arrival of the boat, for most of the passengers to go ashore, but they frequently remained on board for the "Idaho, 93 U. S. 575. "26 Wend. (N. Y.) 591. 118 THE LAW OF CARRIERS OP GOODS night. At about 8 o'clock the next morning, defendant delivered the trunk to a person who came on board and presented a forged order for the same. Defendant was held liable for the trunk and its contents. Defendant was still acting in its capacity of common carrier, and in any case a warehouseman is liable for delivery of goods entrusted to his care to the wrong person, although the delivery is made by mistake. Delivery to one impersonating consignee. — In Ameri- can Express Co. v. Stack," it appeared that plaintiff upon going to war sent home some bonds to his wife. At the end of the war the wife received at Chicago a letter purporting to be signed by plaintiff and directing her to send the bonds to him at Albany, N. Y. This she did by defendant express company. At Albany a man claiming to be plaintiff showed the express agent a letter pur- porting to come from plaintiff's wife from Chicago and informing htm that the bonds had been sent to Albany by express. This man, who was a pretender, was told by the express agent that he must get someone to identify him as the letter was not enough. The pretender left the office, and shortly after returned with one Lillis. The agent was unacquainted with the latter, and demanded that someone known to him (the agent) be brought to vouch for Lillis. One Slevin was then brought in, who was known to the agent to be a reliable man. Slevin did not know the pretender, and so informed the agent, but did know Lillis and represented him to the agent as all right and reliable. The agent then asked Lillis if the man with him was plaintiff, and Lillis replied that he was, and was staying at his (Lillis') house. Without further inquiry the agent delivered the goods to the pretender. »«29 Ind. 27. DELIVERY BY CARRIER 119 The court held that the express company was liable for the loss of the goods, and this irrespective of whether it was at the time acting as a common carrier or a ware- houseman. Even if it stood in the relation of warehouse- man, the circumstances indicated that it had been negli- gent in failing to require a proper identification. Negligent delivery to one not intended as consignee. — In Price v. Oswego & Syracuse R. R. Co.,^" plaintiff, a dealer in bags at Syracuse, N. Y., received a letter from Oswego, N. Y., signed "S. H. Wilson & Co.," and order- ing a quantity of bags. Plaintiff delivered the bags to defendant railroad consigned to S. H. Wilson & Co. Upon arrival of the shipment at Oswego, a person pre- sented himself to defendant and asked for the bags as representing S. H. Wilson & Co. Defendant without re- quiring any further identification delivered the bags to him. This person was a pretender, and there was no such firm at Oswego as S. H. Wilson & Co. It was held that defendant was liable for a wrongful delivery. Plaintiff consigned the bags to S. H. Wilson & Co. and intended that they should be delivered only to that company. The carrier had no right, therefore, to deliver to anyone else. It should have made inquiry, and having found that no such firm existed, have held the goods as warehousemen for plaintiff. The fact that defendant delivered the goods to the person who signed the name of S. H. Wilson & Co. did not constitute a delivery to the rightful owner. Delivery to the consignee intended, although a swindler. — The fundamental rule should be kept in mind that it is the carrier's duty to deliver to the con- signee designated by the shipper, and that while acting in the capacity of common carrier, it is liable for making "50 N. Y. 213. 120 THE LAW OF CARRIERS OF GOODS delivery to another person. The difficulty in a particular instance is to determine whether or not the acts and deal- ings of the shipper have constituted a direction to the carrier to deliver to a particular person. Where the car- rier delivers the goods to the person indicated and desig- nated by the shipper as the consignee, the carrier is re- lieved from liability, although the consignee be in fact a swindler. In Samuel v, Cheney,^^ a swindler, assuming the name of "A. Swannick," sent a letter to plaintiff asking for a price list of cigars, and giving his address as "A. Swannick, P. 0. Box 1595, Saratoga Springs, N. Y." Plaintiff replied, addressing his letter accord- ing to direction. The swindler then sent another let- ter ordering a quantity of cigars which were forwarded by plaintiff through defendant express company. At the same time plaintiff sent a letter to the swindler addressed "A. Swannick, Esq., P. 0. Box 1595, Sara- toga Springs, N. Y.," notifying him that he had for- warded the goods. There was at the time in Saratoga Springs a reputable dealer in groceries, liquors, and cigars named "Arthur Swannick," who had a shop at the corner of Ash and Franklin streets, and who held out his name on his signs and otherwise as **A. Swan- nick." He was in good credit and was so reported by a mercantile agency of whom plaintiff made inquiries before sending the goods. The swindler hired a shop at 16 Congress Street, Saratoga Springs, under the name of "A. Swannick." Plaintiff supposed that the letters were written by, and that he was dealing with, the "Arthur Swannick" referred to by the mercantile agency. He sent the goods by defendant directed to "A. Swannick, Saratoga Springs, N. Y." At about the same time defendant carried a package of cigars "135 Mass. 278. DELIVERY BY CARRIER 121 directed to the genuine "Arthur Swannick," who re- fused to receive it on the ground that he had ordered no cigars. Afterwards on arrival of the packages involved in the case in question defendant carried them to the shop at 16 Congress Street, and delivered them to the swindler, who signed for them as "A. Swannick, ' ' It was held that defendant was not liable for a wrong- ful delivery. Plaintiff intended, it was urged, that the cigars should be delivered to the person with whom he had been corresponding, although he was mistaken as to the identity of that person and supposed him to be the genuine "Arthur Swannick." The court argued that if at the time of the transaction the man who was in correspondence with plaintiff had been the only man in Saratoga Springs known as "A. Swannick," it would certainly have been defendant's duty to de- liver the goods to him according to the directions, and this despite the fact that he was an impostor who by fraud induced plaintiff to send the goods to him. The contract of the carrier, it was stated, is not that he will ascertain who is the owner of the goods and de- liver them to him, but that he will deliver the goods according to directions. Here plaintiff intended to send them to the man who ordered and agreed to pay for them, supposing erroneously that he was "Arthur Swannick." Since defendant acted with due care and delivered the goods to the person actually intended and designated as the consignee, defendant was not liable for their loss. Delivery to one buying the goods under an assumed name; delivery to one assuming falsely to act as agent of another. — On two occasions, ^^ a swindler represent- "Edmund v. Merchants' Despatch Trans. Co., 135 Mass. 283. 122 THE LAW OP CARRIERS OF GOODS ing himself to be Edward Pape, of Dayton, Ohio, who was a reputable and responsible merchant, appeared personally in Boston and bought of plaintiff certain goods, which were shipped by defendant carrier ad- dressed by plaintiff to Edward Pape, at Dayton, Ohio, and were delivered by the carrier to the swindler at Dayton. On the third occasion the swindler introduced himself as a brother of Edward Pape, of Dayton, Ohio, and as authorized to act for the latter. By referring to a mercantile agency, he represented that he was buying for the Edward Pape who was there reported as a man of means. Plaintiff understood that he was selling to and intended to sell to the real Edward Pape. The goods were shipped by the carrier and delivered at Dayton to the swindler. The court held that in the first two instances the car- rier was not liable for delivery to the swindler since plaintiff dealt personally with the swindler, and in fact intended to sell him the goods. There was an actual sale to the swindler who was the true owner, and defendant therefore having made delivery to the true owner was not liable. In the third instance, the carrier was liable for a misdelivery, since the swindler did not purport to be buy- ing the goods for himself but to be purchasing them for the real Edward Pape. The sale was therefore intended to be to the real Edward Pape and defendant was liable for making delivery to another person. There was no contract made with the real Edward Pape, because the swindler who acted as his agent had no authority; on the other hand, there was no contract of sale made with anyone else. The property, there- fore, did not pass to the swindler ; and the carrier could not defend, as in the other two cases, upon the ground that it had delivered the goods to the real owner. DELIVERY BY CARRIER 123 Delivery to other than consignee at direction of shipper's unauthorized agent.— Where the shipper has clearly designated the consignee to the carrier, delivery must be made to that person, unless the directions are changed by the shipper or an agent authorized to act for him in this respect. If the carrier delivers to a person other than the consignee designated by the shipper, even at the direction of an agent of the ship- per who is authorized in some things to act for the shipper, but who is not authorized to act for him in the particular manner of giving shipping directions to carriers, the carrier will be liable. In Wemwag v. P. W. & B. E. R. Co.,^^ plaintiffs were in the dry goods business in Philadelphia. Their agent secured an order for goods from one L. Behrend, in Washington, D. C, and forwarded the order to plain- tiffs. Plaintiffs had previously done business with one A. Behrend, of Washington, who had been a satisfactory customer. In looking up the commercial reports they were unable to find L. Behrend on the list and con- cluded the goods were intended for A. Behrend. They therefore marked and consigned them to A. Behrend. Upon the arrival of the goods in Washington, defendant railroad inquired of plaintiffs' agent whether he had sold goods to L. Behrend, and the latter responded that he had; whereupon defendant delivered the goods to L. Behrend, who afterwards failed. Plaintiffs' agent had authority only to solicit orders, but none to con- clude sales, the orders secured by him amounting to a mere offer to purchase of plaintiffs who were to con- firm same. When defendant made the inquiry of plaintiffs' agent, the latter did not direct a delivery to L. Behrend, who afterwards failed. Plaintiffs' agent to that person. a"!]? Pa. St. 46. 124 THE LAW OF CARRIERS OF GOODS Under these facts and circumstances, it was ruled that defendant was liable for the value of the goods on account of wrongful delivery. Plaintiffs did not intend, the court said, to sell the goods to L. Behrend, but in fact directed them to A. Behrend. As it is the duty of the carrier to deliver the goods to the person to whom the owner consigns them, the carrier acts at its peril in doing otherwise and the whole risk of a wrong delivery rests upon it. CHAPTER IX DELIVERY BY CARRIER— Continued Stoppage in transitu.— The right of stoppage in transitu as it affects the duties and liabilities of car- riers with respect to delivery is succinctly stated by a well-known writer as follows.^ Carrier may show stoppage to excuse delivery. — Another excuse which the carrier may set up for the non-delivery of the goods is, that the vendor has exercised his right of stoppage in transitu. This right arises upon the discovery by the ven- dor, after the sale of the goods on a credit, of the insolvency of the buyer, and is said to be based on the plain reason of justice and equity, that one man's goods shall not be applied to the payment of another man's debts. If, therefore, after the vendor has delivered the goods out of his own possession, and has put them into the hands of the carrier for delivery to the buyer, he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to the people. This right of the vendor of the goods is held to continue from the time he parts with their possession until they have come into the actual possession of the buyer, and may be enforced by him, no matter into whose possession they may have come in the course of the transporta- tion, at any time before their delivery to the buyer or his agent, or to a purchaser of them from the buyer, by a bona fide indorse- ment and transfer of the bill of lading. The right is highly favored by the law on account of its intrinsic justice, and pre- vails almost universally among civilized nations; but it arises only in favor of one who stands in the relation of vendor to the goods. How right exercised. — No particular form or mode has been held necessary in the exercise of this right, and it has even been said that the vendor was so much favored in exercising it as to iHutchinson on Carriers, third edition, sec. 757 et seq. 125 126 THE LAW OF CARRIERS OF GOODS be justifiable in getting his goods back, by any means not crimi- nal, before they reached the possession of an insolvent vendee. All that is required is some act or declaration of the vendor, or his agent, countermanding the delivery, and the usual mode is by a simple notice to the carrier, stating the vendor's claim, forbidding delivery to the vendee, or requiring that the goods shall be held subject to the vendor's orders. The vendor may, however, and sometimes does, resort to a possessory legal action, such as replevin or attachment, in the first instance, and takes the goods by legal process, either from the carrier himself or from some officer who has seized them for a debt of the vendee. Or resort may be had to a bill in equity, the jurisdiction of which to enforce the vendor's right of stoppage is said to be unques- tionable. Duty and liability of carrier after notice. — The insolvency of the buyer is essential to the existence of the right of the vendor to stop the goods. If, therefore, the former be solvent at the time of its attempted exercise, the carrier, if he know the fact, will be not only justified in refusing to give up the goods or to pay attention to the notice, but it would be his duty to do so. He obeys the order or demand at his peril in any case. For, while a rightful stoppage protects the carrier against the claims of the consignee, yet if it should turn out that the purchaser of the goods was solvent, the notice or demand would be entirely without authority. If, therefore, the carrier refuse to give up the goods to the consignee, who is solvent, upon his demand, the latter might maintain an action of trover against him at once. If, on the other hand, the carrier fail to withhold the goods upon a notice to do so, or to surrender their possession to the vendor upon his demand, or if, after such notice or de- mand, he should deliver them to the buyer, and it should turn out that the latter was insolvent, the carrier will be liable to the vendor, at least to the extent of the buyer's indebtedness for the goods. It has therefore been said that, "as the carrier obeys the stoppage in transitu at his peril, if the consignee be in fact solvent, it would seem no unreasonable rule to require that, at the time the consignee was refused the goods, he should have evidenced his insolvency by some overt act." But in the case of The Tigress, this suggestion is rejected, the judge saying that the proof of the conditions on which the vendor's rights depend would always be difficult, often impossible, at the time of their exercise; "for instance, whether the vendee is insolvent may not transpire till afterwards, when the bill of exchange for the goods becomes due; for it is, as I conceive, clear law that DELIVERY BY CARRIER 127 the right to stop does not require the vendee to have been found insolvent." Course to be pursued by carrier for his own protection. — The law of stoppage in transitu, therefore, becomes of great importance to the common carrier; and when a notice is given or a demand is made upon him for the goods by a vendor who claims the right to avail himself of it in the particular case, it places him in very nearly the same situation as when a demand is made for the goods by one who claims adversely to the bailor or his consignee. If it be doubtful whether the right exists to stop the goods, the carrier may, as in that case, instead of re- fusing to comply with the notice or the demand, require that he shall be allowed a reasonable time to investigate the condition of the buyer; and if, after inquiry, he shall be unable to satisfy himself, and does not choose to assume the responsibility of a delivery to either seller or buyer, or to act upon the demand of the vendor that the goods shall be withheld from the consignee, he may, for his own security, resort to legal proceedings to have the question determined, as in the case of adverse claimants of the property. Seizure under legal process. — Where goods are taken from the custody of the carrier by valid legal process, it is evident that the carrier should not be held liable for failure to make delivery to the consignee. It cannot lawfully resist the sheriff or other legal officer acting under a proper writ, nor would it be reasonable to re- quire it to decide who was the person legally entitled to receive the goods. The carrier is obliged to receive whatever goods are tendered to it and it would be a great hardship to compel it to assume the risk of decid- ing who is the true owner of the shipment. In Stiles v. Davis,^ plaintiffs had purchased remnants of a store of dry goods from the assignee of a firm at Janesville, Wis., which had failed and made assignment for the benefit of its creditors. Plaintiffs delivered the goods to defendant carrier to be shipped to Ilion, n Black (U. S.) 101. 128 THE LAW OF CARRIERS OF GOODS N. Y. On the arrival of the goods in Chicago they were seized by a sheriff under an attachment issued in behalf of the creditors of the insolvent Janesville firm and defendant was summoned as garnishee. The goods were held by sheriff under attachment until after judgment and execution, when they were sold. Plaintiffs de- manded the goods of defendant and were refused. It was held that defendant was not liable for a conversion of the goods since after the attachment the goods were in the custody of the law and defendant could not com- ply with the demands of plaintiffs without a breach of the law. Furthermore, the goods were at the time of the demand in the actual possession of the sheriff. The right of the sheriff to hold them was a question of law to be determined by the proper legal proceeding and not by the will of defendant or of plaintiffs. In Bliven v. H. E. E. E. Co.,^ a similar conclusion was reached. Plaintiff delivered to defendant railroad at its depot some saw plates and handles to be transported to New York. Before the departure of the train the goods were seized under legal process and returned to a third person who claimed they had been stolen. In a suit against the carrier for the value of the goods it was held that the carrier was not liable. Same: Duty of carrier to notify shipper of seizure. — It has been held that where the shipment is seized under legal process, the carrier must promptly notify the shipper if it wishes to claim exemption from lia- bility for failure to deliver. In 0. & M. E. E. Co. v. Yohe,* in a suit by the shipper against the carrier for failure to deliver wheat, defendant in its answer set up that while the wheat was in a car at Bridgeport await- 336 N. Y. 403. <51 Ind. 181. DELIVERY BY CARRIER 129 ing transportation to Vincennes, a third person sued out a writ of replevin under which the sheriff of the county took possession of the wheat, but the answer failed to state that the carrier gave immediate notice to plaintiff that the goods had been so seized. It was held that the answer was bad. While the defense of seizure under legal process was good, it was held pre- requisite to this defense that the carrier immediately inform the shipper. Whether seizure under legal process a good defense where owner is not made a party to the attachment suit. — By the majority view and in accordance with sound reason, it would seem that the carrier should be protected from liability for failure to deliver irrespec- tive of whether the consignee as owner is made a party to the attachment or other suit. Obviously the carrier cannot determine who shall be parties to a suit insti- tuted against it by a third person. If the legal process of seizure is valid, the carrier cannot well resist the officer who demands the possession of the goods under a valid writ. In Massachusetts, however, the rule seems to be that the carrier is not protected unless the consignee, who has title, is made a party to the pro- ceedings of seizure. In Edwards v. White Line Transit Co.,^ the goods were taken from the possession of de- fendant carrier in an attachment suit, to which plaintiff consignees were not made a party, and this attachment was set up by defendant in answer to a suit by the consignees against the carrier for a breach of contract. It was held that the defense was not good. Since plaintiffs were not made a party to the attachment suit the goods, in the view of the court, were, with respect to them, not in contemplation of law in legal 5104 Mass. 159. 130 THE LAW OF CARRIERS OF GOODS custody. The court stated that had the suit against the carrier been in tort for conversion, the defense would have been good, as there would have been no intention on the part of the railroad company to convert the goods, and attempted to distinguish the case on this ground from the decision in StUes v. Davis, supra. Inasmuch as the suit was brought against defendant upon its contract as a carrier, it was urged that the at- tachment by the officer was a mere trespass with respect to plaintiffs and was of no more validity than a tres- pass by any other unauthorized proceeding, or by an unofficial person. Seizure must be of goods subject to attachment to protect carrier, — In Kiff v. O. C. & N. R. R. Co.,^ a quan- tity of intoxicating liquors shipped by plaintiff from Boston to Belfast was seized in an attachment suit against plaintiff at Boston. A Massachusetts statute prohibited the sale of intoxicating liquors and made no exception of sales by officers under legal process. In the suit against defendant as a common carrier in con- tract for failure to deliver the goods to plaintiff, de- fendant set up the attachment. The court held that the defense was not good, since under the statute there could be no legal sale of liquor by an officer under legal process, and the attachment was therefore invalid. The officer who took the goods was, in the view of the court, a trespasser against plaintiff. Defendant was, on this ground, held liable. Whether seizure under trustee process relieves car- rier. — ^In Adams v. Scott,'' a package accepted for car- riage by an express company was attached by trustee 8117 Mass. 591. n04 Mass. 164. DELIVERY BY CARRIER 131 process by a creditor of the consignee in which suit the consignee was made a party defendant. The express company sought to be discharged out of the suit upon the ground that otherwise it could not perform its con- tract to deliver the package at point of destination. It was held that the express company should be charged as a trustee and was not entitled to be discharged. It was said that the consignee's property had been seques- trated by the law to be applied to the use and benefit of the creditors, and the rule was laid down that inasmuch as every person sold his property subject to attachment, and the consignee was made a party de- fendant, the seizure excused the carrier from the obliga- tion of performing its promises to deliver to him. The law substituted the delivery to its officers for a per- formance of the carrier's contract. It will be observed that this case not only lays down the Massachusetts rule that a seizure under legal process is a defense to the carrier for failure to deliver, where the consignee is made a party to the seizure suit, but extends the rule to the case of trustee process under which a carrier is required to hold the goods in its possession subject to the future orders of the court. Other jurisdictions, however, appear to hold contra, where the goods are already in transit.® 'I. C. R. R. Co. V. Cobb, 48 111. 402. See also Montrose Pickle Co. V. Dodson & Hills Mfg. Co., 76 Iowa 172. CHAPTER X BILL OF LADING Twofold character of bill of lading.— The bill of lading is to be regarded in some respects as a contract governing the terms and conditions of transportation, and in other respects as a mere receipt reciting the kind and quantity of goods entrusted to the carrier. As to the manner in which the goods shall be loaded and stowed for the carriage, the bill of lading is a con- tract and its expressed terms and those implied by law are binding as between the shipper and carrier. In The Delaware,^ a carrier received pig iron from plaintiff at Portland to be carried by boat to San Fran- cisco. The bill of lading exempted the carrier from loss or damage from dangers of the sea, fire, or collision. In- stead of being placed under the deck, the iron was stowed on deck, although the biU of lading contained no permis- sion from plaintiff for departing from the usual prac- tice. The iron was jettisoned during a storm in order to save the ship and no necessity of sacrificing it would have arisen had it been stowed under the deck. Defend- ant shipowner offered parol evidence to show that just prior to the issuance of the shipping receipt plaintiff made an oral agreement with the master of the vessel by which the ore was to be stowed on deck. The court held that this parol evidence was inadmis- sible inasmuch as the bill of lading, with respect to the manner of storage, was a contract which could not be varied by such evidence. The bill of lading, it was '14 WaU (U. S.) 579. 132 BILL OP LADING 133 urged, was both a receipt for the goods and a contract to carry them to destination. Defendant was bound by the rules of good seamanship to stow the goods under the deck and his exemption from liability for the loss arising from dangers of the sea was applicable only in case he stored the goods in such manner. The court said: "Such an instrument is two-fold in its character, that is, it is a receipt as to the quantity and description of the goods shipped, and a contract to transport and deliver the goods to the consignee therein designated, and upon the terms specified in the same instrument. * * * So far as the receipt goes only to acknowledge the payment or delivery, it, the receipt, is merely prima facie evidence of the fact and not conclusive, and, there- fore, the fact which it recites may be contradicted by oral testimony but insofar as it is evidence of a contract between the parties it stands on the footing of all other contracts in writing, and cannot be contradicted or varied by parol evidence. * * * The instrument may, as between carrier and shipper, be contradicted and ex- plained as to its recital that the goods were in good order and well conditioned, by showing that their internal state and condition was bad, or not such as is represented in the instrument, and in like manner, in respect to any other fact which it erroneously recites, but in all other respects it is to be treated like other written contracts." Bill of lading as contract to deliver to person speci- fied. — The portion of the bill of lading specifying the consignee is deemed a part of the contract between the carrier and the shipper and the parties are bound by the terms of the written instrument in this respect. Thus, in Garden Grove Bank v. H. & S. Ry. Co.,^ it appeared that on a shipment of lumber from a point »67 Iowa 526. 134 THE LAW OF CARRIERS OP GOODS in Iowa to Chicago defendant railroad's agent issued a bill of lading which specified the name of the con- signor but left blank the place for the name of the con- signee. The consignor without the knowledge of de- fendant's agent assigned the bill of lading to plain- tiff bank as security for a loan. Defendant delivered the lumber at Chicago to S. & Son, and was sued by plaintiff to recover its value. Defendant offered to show that the consignor agreed with the carrier's agent that the lumber should be delivered to S. & Son. It was held that the bill of lading with respect to the undertaking of the carrier to deliver to a certain per- son at a given destination was a contract and a promise therein could not be varied by oral agreement. No consignee being named, defendant was by the prom- ise of the bill of lading bound to deliver the lumber to the consignor or his assignee. Plaintiff bank was entitled to rely on the bill of lading as embodying all the terms of the contract. As to amount of goods shipped, bill of lading a receipt. — The portion of the bill of lading reciting the quantity of goods entrusted to the carrier is held to be in the nature of a mere receipt, which is binding on the parties only in so far as it tells the truth and which may be contradicted by oral evidence. In O'Brien v. Gilchrist,^ the master of a schooner issued a bill of lading acknowledging the receipt from the shipper of 378 pieces of timber amounting to 134 tons and 32 feet. The timber delivered at destination was but 351 pieces amounting to 123 tons, and plaintiff sued to recover for the deficit. It was held that the trial court properly permitted the carrier to show by parol evi- dence that it had received only the amount of lumber •34 Me. 554. BILL OP LADING 135 delivered by it at destination and not the amount speci- fied in the shipping receipt, which was an error. It was stated that the receipt might be contradicted by parol evidence and that while it was strong prima facie evidence as to the amount shipped, it was not conclu- sive. In so far as a bill of lading is a receipt and states the condition of the goods, it might, in the opinion of the court, be contradicted, but in other re- spects must be treated like other written contracts. Bill of lading as receipt; innocent third parties.— ^ It has been held that where the consignee has paid for goods in advance on the amount stated in the bill of lading, he may recoup against the carrier for any deficit. In Eelyea v. New Haven Rolling Mill Co.,* libelant, the owner of a sleuth, received from the consignors a car- load of scrap iron to be carried from New York to New Haven. The bill of lading acknowledged the amount received on board as 109 tons, whereas, in fact, it was only 103 tons. The respondents, the consignees of the cargo, upon receiving the bill of lading, paid the consignors for the full 109 tons in reliance upon the bill of lading. The libelant sued respondents to re- cover the freight charges and the latter sought to recoup for the value of the 6 tons. It was held that the respondents were entitled so to recoup. While an error, it was said, in a bill of lading as to the amount of goods received or their condition might be contradicted by parol evidence, in a controversy between the con- signor and the carrier, such evidence was not admissible where the rights of innocent third parties relying on the bill of lading would be infringed. The bill of lading, in the view of the court, was a muniment of title, and the libelant in the case in question should «42 Conn. 579. 138 THE LAW OF CARRIERS OF GOODS not have issued a receipt without assuring himself that he had received on board the full 109 tons. Receipt issued; no goods received. — In this connec- tion the question arises as to the liability of the car- rier where its agent fraudulently or otherwise issues a bill of lading but no goods are in fact delivered to him for transportation. In Pollard v. Vinton,^ the agents of defendant owner of a steamboat issued at Memphis a bill of lading for 150 bales of cotton con- signed to Cincinnati. The consignor drew a draft on plaintiffs in New York and attached thereto the bill of lading. Plaintiffs accepted the draft and paid the con- signor a large sum of money. As a matter of fact de- fendant's agent at Memphis received no cotton nor was any delivered to defendant's steamboat. Plaintiffs sued to recover for the non-delivery of the cotton rely- ing on the bill of lading. The Supreme Court of the United States held that defendant was not liable on the ground that the agent went outside the scope of his authority in issuing a bill of lading to the con- signor as he was authorized to issue such an instru- ment only when the goods were actually received, and as the bill of lading was not a negotiable instrument the carrier was not bound by the fraudulent act of the agent in issuing the same under the circumstances I'ecited. A different view, however, appears to obtain in some other jurisdictions. In S. C. & P. R. E. Co. v. First Nat'l Bank of Fremont,® a railroad station agent issued to one Watkins a bill of lading for two cars of wheat and another for three cars of the same commodity. In fact only one-half a carload of wheat and one-half a •105 u. s. 7. no Nebr. 556. BILL OF LADING 137 carload of barley were received by the agent under the first bill of lading, and the three cars mentioned in the second receipt were never received by the railroad com- pany. Watkins assigned the bills to plaintiff bank which advanced funds thereon. The court held plaintiff entitled to recover of the car- rier the amount of money advanced. It was urged that since defendant had selected the station agent and chosen to place reliance upon him, of the two innocent persons involved, defendant rather than plaintiff should sustain the loss, since it enabled the agent to occasion the loss. The court stated that the superior equity was with the bona fide assignee ^rho had parted with his money on the strength of the bill of lading, since the company had invested the agent with authority to issue bills of lading, and these instruments when issued were not the bills of the agent but of the railroad company. It was further stated that the representation in the bills that the carrier had received a certain quantity of grain for shipment was a representation to any one who in good faith relying thereon saw fit to make advances on same. It will be seen that the precise question involved in the two cases last cited is one of agency, that is, whether the agent in issuing the bills without receiving the goods should be deemed to be acting within the scope of his authority so as to make the issuance of the instrument, in point of law, the act of the carrier, or whether he should be deemed as going outside his authority and acting on his own account so as to make his fraudulent conduct merely his own individual act. In the latter supposition no receipt is in fact issued for the goods by the carrier. TEST QUESTIONS These questions are for the student to use in test- ing his knowledge of the assignment. The answers are not to be sent to the University. 1. What carriers are required to make personal delivery? 2. What is the duty of express companies in this respect? 3. What is the rule as to the express company's duty to Qnd the consignee? 4. What must the carrier do at point of destination in order to terminate its liability as common carrier? 5. Discuss the question of notice of arrival of goods in this connection. 6. Under what circumstances may the carrier safely de- liver the goods to the consignee? 7. To whom must' the carrier deliver the goods where the bill of lading is taken in the name of the consignor? 8. What is the effect of the endorsement of the bill of lading in this connection? 9. Distinguish between the character of the bill of lading and a promissory note with respect to negotiability. 10. Discuss the liability of a carrier in various instances where fraud is practiced upon it as to the consignee of the goods. 11. What is the liability of a carrier for delivery of the goods to the consignee intended where such person is a swindler? 12. Discuss the essential elements of the doctrine of stop- page in transitu. 13. Distinguish between the provisions in the bill of lading which are contractual in their nature and those which constitute a mere receipt. 138 THE LAW OF CARRIERS OF GOODS RALPH MERRIAM Of the Chicago Bar Author, Claims between Shippers and Carriers Co-Author, Digest of Decisions under the Interstate Commerce Act PART 4 ACTIONS AGAINST CARRIER CARRIER'S COMPENSATION CARRIER'S LIEN IaS^le l^iNsioN IJniyei^sity CHICAGO 1917 8-2" Copyright, 1914 LaSalle Extension Univekbitt CHAPTER XI ACTIONS AGAINST CARRIER 1. Parties Preliminary remarks. — ^Where loss or injury has been sustained the question arises as to whether the con- signor or the consignee is the proper party to bring the action for the recovery of damages. It has already been seen that the carrier owes a public duty to receive and safely to transport and deliver the goods. This duty is imposed by the common law, and exists inde- pendent of any contract between the shipper and car- rier. In the discussion of the bill of lading, however, it was noted that a contractual relation does exist between the consignor and the carrier, the terms of which are embodied in the bill. It would seem that this contractual relation arises just as certainly where the consignor delivers the goods to the carrier for trans- portation and the latter accepts the same even though no bill of lading be issued. The bill of lading is merely the evidence of the agreement between the consignor and the carrier. In determining who is the proper party to bring an action for loss or damage against the carrier, it is important to have clearly in mind, in addition to the above, the rule of law which determines where the title to the goods transported vests during transporta- tion. By the law of sales, where the goods are con- signed in the bill of lading to the consignee, the title 139 140 THE LAW OP CARRIERS OP GOODS passes to him immediately upon delivery to the carrier, unless by some special agreement or special circum- stances, it appears that it is the intention of the parties that the title should be retained by the consignor. For example, the consignor may ship the goods directed in the bill of lading to the consignee and may send the bill, together with a draft, to a bank at destination with instructions that the bill is to be delivered to the con- signee by the bank only upon payment of the draft. In such case the title remains in the consignor until the draft is paid and the bill of lading delivered by the bank to the consignee. Again, the bill of lading may be made out to the order of the consignor and by him endorsed and sent with draft attached to the bank at destination with similar instructions, and in this case the title remains in consignor after delivery to the car- rier. With these preliminary statements the rulings as to the proper party to bring suit may be examined. Action in contract by consignor; title in consignee. — In the early law the courts appear to have considered the obligation of the carrier safely to transport the goods, to arise by the force of its public duty imposed by law, rather than from any private agreement be- tween it and the shipper. Later they came to recognize the obligations arising from the contract made between the carrier and the consignor. In Davis v. James,^ plaintiffs delivered cloth to defendant carrier to be carried to White Chapel, the shipment being directed for delivery to consignee. The carrier having failed to deliver the goods to consignee, plaintiff consignor brought a suit in contract for their value. It was objected that plaintiffs were not the proper parties to bring the action, as the title had passed to the consignee •6 Burr. 2680. ACTIONS AGAINST CARRIER 141 upon delivery to the carrier, and the latter was the proper party to prosecute the suit. The court held, however, that the action would lie, and that plaintiffs were the proper parties to institute same, since the suit was founded on the contract between the carrier and plaintiff by which the former obligated itself by private agreement to perform the transportation accord- ing to the terms and conditions of the agreement. The court stated that inasmuch as plaintiffs were bound by this contract to pay the carrier the freight charges, they were entitled to the fulfillment of the contract, and to maintain action for its breach. This decision makes a distinction which should be clearly kept in mind. Had plaintiffs instituted their action in tort for the breach of the carrier's public duty in the failure to transport the goods safely, the nature of the action would have been for the infringement of their property rights in the goods, and it would have been necessary for them to show that they had some special or property right in the same. Inasmuch, however, as plaintiffs founded their action in contract, they were suing the carrier, not for a violation of its public duty or for an infringement of property rights, but for its failure to keep a specific promise made to plaintiffs. In Dawes v. Peck,^ the consignor sued the carrier for failure to deliver goods at destination. The plead- ings seem to indicate that the action was founded on contract. The consignor upon entrusting the goods to the carrier paid him the transportation charges. It was objected that the consignor was not the proper party to maintain the action, since the goods were directed to and the title passed to the consignee upon their delivery to the carrier. The court sustained this objection and denied recovery. It was urged in the »8 Term R. 330. 142 THE LAW OF CARRIERS OF GOODS opinion that the action must be brought by the party in whom the legal title is vested, inasmuch as he is the person who has sustained the loss by the failure of the carrier. The right of property, on which the action was founded, must not, in the view of the court, be held to fluctuate according to the choice of the consignor or consignee so as to enable either, at his pleasure, to maintain the action against the carrier for non-delivery of the goods. The court considered that all the con- signor did was to act as agent for the consignee, at whose risk the goods were sent. The result urged in the case last cited is, it would seem, not founded on sound reasoning. Plaintiff con- signor was not suing for a breach of the carrier's pub- lic duty or for an infringement of his property rights in the goods. He was suing for a breach of the carrier's private agreement to transport the goods safely to destination. It would certainly seem in an action so founded upon contract wholly immaterial as to whether plaintiff consignor had all or any property interest in the goods. The view just indicated would seem to be sustained by the better authorities. In Finn v. Western EaUroad Corporation,' plaintiff seller shipped shingles consigned in the bill of lading to the purchaser, and sued the rail- road, in an action based on contract, for failure to forward and deliver the shingles to the consignee. It was held that plaintiff was the proper party to maintain the suit inasmuch as the contractual relation was be- tween plaintiff and carrier and not between consignee and carrier. The court said: "When carrying goods from seller to purchaser, if there is nothing in the relations of the several parties except what arises from the fact that >112 Masa. 624. ACTIONS AGAINST CARRIER 143 the seller commits the goods to the carrier as the ordinary and convenient mode of transmission and delivery, in execution of the order or agreement of sale, the employment is by the seller, the contract of service is with him, and actions based upon that contract may, if they must not necessarily, be La the name of the consignor. If, however, the purchaser designates the carrier, making him his agent to receive and transmit the goods; or if the sale is complete before delivery to the carrier, and the seller is made the agent of the purchaser in respect to the forwarding of them, a dif- ferent implication would arise, and the contract of service might be held to be with the purchaser. This distinction, we think, must determine whether the right of action upon the contract of service implied from the delivery and receipt of goods for carriage is in the consignor or in the consignee. "In Blanchard v. Page, the action was maintained in the name of the consignors, who were merely the agents of the owners in forwarding the goods. But that was explicitly on the ground of the express contract with them, entered into in the receipt or bill of lading. The consignee, by virtue of his right of possession, or the purchaser, by virtue of his right of property, may have an action against the carrier for the loss, injury, or detention of the goods, though not a party to the orig- inal contract. Such action is in tort for the injury resulting from a breach of duty imposed by law on the carrier; or in the language of the early cases upon 'the custom of the realm. ' "There are many cases both in England and in the United States in which the doctrine appears to be main- tained that, except when there is a special contract, a remedy for the injury resulting from breach of duty by a carrier can be obtained only in the name and behalf 144 THE LAW OP CARRIERS OF GOODS of some one having an interest in the property at the time of the breach, which is injuriously affected thereby. The rule might well be conceded if the exceptions were not too restrictive. It will hold good in actions of tort, because they are founded upon injury to some interest or right of plaintiff. And the cases which support this view are mostly, if not all together, actions of tort. * * * Whatever remedy is sought in contract must necessarily be sought in the name of the party with whom the contract is entered into, whether it be special, that is, express, or implied. The question then is simply this: In the absence of an express agreement, with whom is the carrier's contract of employment and service in respect of goods delivered to him by the seller to convey to the purchaser, when there is no privity or relation of agency between the carrier and the purchaser save that which springs from possession of the goods, and the seller has no authority to make a contract for the purchaser except what is to be im- plied from the agreement of purchase or the order for the goods? "The law imposes upon the carrier the duty to trans- port the goods, and allows him a reasonable compensa- tion, and gives him a lien upon the goods for the security of its payment. It also implies a promise on the one part to carry and deliver the goods safely, and, on the other, to pay the reasonable compensation. These two promises form the contract. Each is the counterpart and consideration of the other. If the contract of car- riage is with the consignee, the reciprocal promise to pay the freight must be his also. Against this infer- ence are the considerations that the seller is acting in his own behalf in making the delivery, and the goods remain his property until the contract with the carrier takes effect. The title of the purchaser does not exist ACTIONS AGAINST CARRIER 145 until that contract is made. It follows as a result. The carrier is not the agent for either party, but an intermediate, independent principal. If made an agent of the consignee, his receipt for the goods cuts off the right of stoppage in transitu on the one hand, and satisfies the Statute of Frauds on the other. He has the right to look for his compensation to the party who employs him, unless satisfied from his lien. The fact that, as between seller and purchaser, the purchaser must ordinarily pay the expense of transportation as a part of the cost of the goods does not affect the rela- tions of contract between the carrier and either party. "We discover nothing in the nature of the transac- tion, and we doubt if there is anything in the practice or understanding of the community which will justify the inference that the one to whom goods are sent by carrier, without direction or authority from him, other than an agreement of purchase or consignment, is the party who employed the carrier and is bound to pay him; unless he assumes such liability by receiving the goods subject to the charge. * * • "We do not think the carrier's contract and right to recover his freight can be made to depend upon what may prove to be the legal effect of the negotiations between the consignor and consignee upon the title to the property which is the subject of transportation. His contract must arise from the circumstances of his employment. He has a right to look for his compensa- tion to the party who required him to perform the service by causing the goods to be delivered to him for transportation. And that party, unless he is the mere agent for some other, may enforce the contract, and sue for its breach by the carrier. One who for- wards goods in the execution of an order or agreement for sale is not a mere agent of the purchaser in so 146 THE LAW OF CARRIERS OF GOODS doing. He is acting in his own interest and behalf and his dealings with the carrier are in his own right and upon his own responsibility, unless he has some special authority or directions from the purchaser, upon which he acts." Where consignor, vendor, is mere agent of consignee, vendee. — Some authorities hold that where the vendor receives an order for goods from the purchaser with instructions to deliver them to a particular carrier, and where the vendor upon such delivery parts with the title, does not pay the freight, and has no special interest in the goods, he is to be deemed the mere agent of the consignee and an action cannot be maintained in his name against the carrier. In Krulder v. Ellison,* the purchaser sent an order for a barrel of shellac to the vendor with instructions that the latter was to send it, as usual, via defendant canal. The goods were de- livered according to instructions and the bill of sale sent immediately to the consignee. In a suit by the consignor to recover for their loss in transit the court held that plaintiff could not main- tain the action inasmuch as he had no property interest in the goods. It did not clearly appear by the pleadings in the case, whether the action was founded in contract or in tort. The language of the discussion indicated, however, that even had the suit been laid in contract, no recovery could have been had by the consignor. Where the action in a case involving the facts cited is laid in tort, the conclusion arrived at by the court would seem to be the correct one. For in such a suit plaintiff must maintain his action on the theory that his property right in the goods has been infringed. If he has no interest in the goods, he cannot, of course, «47 N. Y. 46. ACTIONS AGAINST CARRIER 147 have suffered any damage by the failure of the carrier to transport same safely. But where the suit under the facts stated is founded in contract, it would seem, on sound principle, that the action should lie in the name of the consignor. It is true, of course, that the consignee might bring such action in his own name as principal. On the other hand, it appears to be a well- established principle of agency that the agent, here the consignor, may maintain an action upon the contract in his own name. Mr. Mechem, in his work on Agency," says: "Where the agent contracts for the principal, but in his own name, the agent may, in general, maintain an action on the contract against the other party. But this right to sue is subservient to the principal's superior right to maintain the action in his own right upon all simple contracts." Consignor retaining interest in goods. — In Freeman V. Birch,* plaintiff, a laundress, residing at Hammer- smith, was in the habit of sending linen to and from London by defendant's cart, and in a particular in- stance, a part of the contents of a basket of linen was lost or stolen in transit. Plaintiff paid for the cartage of the linen and from the pleadings the action was apparently founded in tort. The court ruled that plain- tiff as consignor could maintain the action inasmuch as she retained a special property in the goods. All the <5ases clearly support the rule that either the con- signor or consignee may sue in tort for loss of or injury to the goods where either has a special or general property right in the same. If one recovers, however, the other is thereafter barred from maintaining suit. •Mechem on Agency, first edition, eec. 769, •INev. & Man. 420. 148 THE LAW OF CARRIERS OP GOODS For example, in Elkins v. B. & M. R. R. Co./ one Jonathan Elkins was entrusted with plaintiff's over- coat to be sent from Andover to Exeter. Having rolled up the overcoat with his own and placed a label on the bundle, "Jonathan Elkins, Exeter, N. H.," he left the bundle with defendant railroad for carriage. In a suit by plaintiff for failure to transport and deliver the coat, it was held that the action would lie. Elkins was claintiff's bailee or agent and while the bailee himself might have sued, the bailor (plaintiff) also could sue since he was in the position of undisclosed principal. The property in the articles bailed was for some pur- poses in the bailee, and for others in the bailor. The court stated that the right of action must partake of the same properties, and must so continue until it was finally fixed or determined by one or the other party appropriating it to himself. Either the bailor or the bailee might sue, and where one obtained damages, there was full satisfaction, and the other was barred. Summary. — Where the consignor takes the bill of lading to his own order and does not endorse the same, or where by any course of dealing with the consignee he retains the entire title or a special property interest in the shipment, he may recover for loss or damage of the carrier in an action laid either in contract or tort. If the consignor, upon delivery of the goods to the car- rier, parts with all his title, he cannot maintain an action of tort for their loss, and by some authorities cannot sue even in contract where the circumstances indicate that he is, as vendor, a mere agent of the vendee in delivering the goods to the carrier. By the sounder view it would seem that he should in such case be able to sue in contract unless his principal, the »19 N. H. 337. ACTIONS AGAINST CARRIER 149 vendee, exercises his superior right. Where the con- signor is not a mere agent, he should on principle, and may, by the better authority, sue in contract on the agreement embodied in the bill of lading or receipt, or on that, in the absence of a bill of lading, arising from the simple fact of the delivery of the goods to the carrier and the latter 's undertaking to transport same. The consignee may sue in tort for the loss or damage where he has either a special or general title to the goods, and he may sue in contract in his own name where he has the general property and the consignor only a special property in the goods, and the vendor is shown under the facts to be merely his agent in deliver- ing the goods to the carrier for transportation, 2. The Foem of Action In general. — The question as to the proper form of action in suits against carriers for loss or damage is well discussed, from a historical standpoint, in Hutchin- son on Carriers.® *'A great deal of importance was formerly attached to the subject of the form of action adopted in suits against the carrier for damages for his failure to carry and deliver the goods safely. It has become, however, from the radical changes in the mode of pleading, which have now been almost universally adopted in this country, a matter of comparatively little impor- tance, but as the former distinctions between the two classes of actions, which formerly prevailed in the prose- cution of the remedy of the injured party against the carrier, are still of some importance in the illustrations which they afford of the nature of his responsibilities, and as the former rules of pleading are still partially 'Hutchinson on Carriers, third edition, sees. 1321, 1322. 150 THE LAW OF CARRIERS OF GOODS retained in some of the states, and remain almost wholly unimpaired in perhaps a few of them, it is still la subject of sufficient importance to merit our attention. "Until within a comparatively recent time the obliga- tion of the common carrier of goods was supposed to result entirely from a public duty, implied by the law, and which, upon grounds of public policy, was increased into an obligation to carry safely, without excuse or exception, save for such losses as might be occasioned by an act of God or of the Idng's enemy. His charac- ter as gwasz-public servant or officer, as it was desig- nated, was supposed to put his business upon a dif- ferent footing from that of persons engaged in other vocations. His liability was of an extraordinary and exceptional kind, growing out of his obligations to the public, and justified on the grounds of public policy. * * * "The idea of contract, or of the obligations growing out of it, was therefore never associated with the ques- tion of his liability. All actions against him were, therefore, for a breach of this duty, and were said to be founded upon the custom of the realm, which was but another term for the common law. Such actions were said to be ex delicto, in tort, or actions on the case, all of which terms expressed the same idea, and were meant to distinguish such actions from those based upon contract. ' ' Carrier's obligation based on contract. — In Dale v. Hall,® the courts seem to have conceived the idea that the carrier's obligation, including that of absolute liability, irrespective of negligence, might be deemed as arising by contract. In this conception the law would read into the contract the absolute duty to carry and deliver n Wils. 281. ACTIONS AGAINST CARRIER 151 safely, where the bill of lading or receipt was silent on the point. In the case noted plaintiff did not declare against defendant as a common carrier upon the custom of the realm, but the declaration was that defendant at the special instance of plaintiff undertook to carry cer- tain goods and in consideration thereof plaintiff under- took and promised to pay him so much money, but that the goods were kept so negligently by defendant that they were spoiled. Defendant put in a plea of non- assumpsit. Defendant contended that under this declar- ation negligence was the very gist of the action, and that inasmuch as defendant had proved that there was no negligence, recovery could not be had. The court held, however, that although the suit was based on contract, stiU, under the obligations of the contract, as implied by law, the carrier was bound, irrespective of negligence, to transport and deliver the shipment safely. The effect of this decision apparently was to make the exceptional liability of the carrier just as pronounced whether suit was brought in con- tract in reliance on the agreement embodied in the bill of lading or the receipt, or whether it was laid in tort founded on the quasi-puhMc character of the carrier's obligation. Necessary allegations to constitute a declaration in contract. — ^Whether a declaration in a suit for loss or damage against a carrier is to be deemed as laid in con- tract or in tort must be determined by the nature of the allegations set forth therein. In jurisdictions, both where the technical common-law rules of pleading are abolished and where they are retained, it often becomes difficult to determine, from the phrasing of the declara- tion, what the nature of the action is. In Baylis v. 152 THE LAW OF CAERIERS OF GOODS Lintott,^'' the declaration alleged that the carrier, in consideration of a reward to be paid to defendant by plaintiff, promised to convey her luggage safely, but that, not regarding his duty as such carrier, or his promise, failed so to convey the luggage and acted so negligently that same was lost. Plaintiff recovered a verdict for £20. A statute provided that in suits in contract plaintiff could not recover costs unless the amount of the verdict ex- ceeded £20. The question presented, therefore, was whether, under the allegations indicated, the action was in contract or in tort. It was held that the suit was in contract and that plaintiff could not recover costs. The court stated that while she might have framed her action either in contract or in tort, there was here clearly alleged a promise and a breach of the promise, and the suit must be considered as one in con- tract. Practical distinctions between the forms of action. — Although the courts have to a large degree made it immaterial whether the action against the carrier be laid in contract or in tort, the distinction between the two forms of action is not without importance. For example, in Pozzi v. Shipton,^!- the declaration stated simply that plaintiff delivered to defendants and de- fendants received from plaintiff, goods to be carried for hire between certain points. There was no allegation that the goods were delivered to defendants at their instance and request or any showing of a mutual promise between the parties. The question was whether under this form of declaration a judgment recovered against only one of defendants could stand. " L. R. 8 C. P. 345. »8 A. & E. 963. ACTIONS AGAINST CARRIER 153 The court held that inasmuch as the declaration in- dicated that the action was in tort, the judgment was valid under the rule which permits in a tort action, but disallows in a contract action, a judgment to be entered against only one party where several defendants have been joined in the action. Lilcewise, in Smith v. Seward,^^ the declaration simply alleged that defendant as ferryman undertook to convey plaintiff's horses across the river but did not allege a promise so to do or any consideration to support a promise. Judgment was entered for only one of defendants and was sustained on the ground that this was permissible where the action was in tort, instead of contract. Cases may arise, on the other hand, where it is im- portant that the action proceed upon contract. The bill of lading or receipt may contain some special agree- ment conferring important rights on the shipper not enjoyed by virtue of the obligations imposed on the carrier by law; or it may embody provisions which nullify a defense that the carrier might otherwise make. Suppose, for example, that the bill of lading specifically provides that the carrier shall be liable absolutely for all losses, including those arising by an act of God, of the public enemy, etc. In such case the shipper should declare on the contract, as otherwise under its common-law obligation the carrier would not be liable for these losses. Again, it may be of advantage for the shipper to sue in tort on the ground of certain restrictions in the bill of lading or receipt requiring him, for example, to bring his action within a given time or limiting him to the recovery of a given value. By bringing his action in tort, the carrier is put to the trouble of setting up in his plea the special conditions and limitations con- •23 Pa. St. 342. 154 THE LAW OP CARRIEKS OF GOODS tained in the bill of lading. If he fails so to do, the shipper, by reason of having proceeded in tort, may gain an advantage. 3. Btjbden or Proof In general. — In an action either in contract or tort against a carrier for loss of the goods, the declaration must allege that the goods were delivered to the carrier, accepted by him, and that he failed to deliver same at destination. After plaintiff has put in evidence support- ing these allegations, the presumption arises that the goods "were lost during the course of transportation, and it is then incumbent upon the carrier to excuse the loss by the submission of competent evidence. He may show that the loss occurred by the act of God, of the public enemy, or of the shipper, or resulted from the inherent nature of the goods. It may be that the bill of lading in the particular instance contains pro- visions exempting the carrier from liability for the loss arising from other causes, as, for example, fire or dan- gers of navigation. If so, the carrier may meet the prima facie presumption of liability for the loss by proving that it occurred from these causes. The carrier, it should be recalled, cannot, however, by the better view, exempt itself entirely for the loss occurring by reason of its own negligence. If the goods were destroyed, for instance, by an act of God, but the loss would not have occurred if the carrier had exercised reasonable care and diligence, it is liable for the loss; so if the contract contains a provision relieving the carrier from responsibility for the loss by fire, the carrier is nevertheless liable if the loss by fire was occasioned by its negligence. Inasmuch as the goods during transpcrtation are entirely in the custody ACTIONS AGAINST CARRIER 155 and control of tlie carrier and the shipper is not in a position to watch them or to learn at any time the various things which may have happened to them dur- ing transit, it is a matter of very great importance in the trial of the case as to what facts the shipper must prove in order to entitle him to a recovery and what facts the carrier must prove to avoid a judgment. Burden of proof as to negligence of the carrier. — Suppose the shipper has introduced evidence showing delivery of the goods, acceptance thereof by the carrier, and the failure of the latter to deliver the same at des- tination within a reasonable time; and thereupon the carrier sets up that the goods were lost by an act of God or by some cause against which it has protected itself by a specific provision in the bill of lading. la it the duty, then, of the shipper to show that the loss would nevertheless not have occurred but for the car- rier's negligence, or is it the duty of the carrier to introduce evidence showing that it acted with reason- able care? In Transportation Co. v. Downer," plaintiff's evi- dence indicated that defendant carrier had received coffee for transportation and that the same was lost, by the grounding of the ship in the harbor at point of destination. Defendant then put in evidence to show that the loss was occasioned by the dangers of naviga- tion. The bill of lading provided that defendant should not be liable for loss from this cause. Plaintiff then endeavored to prove that the danger mentioned and consequent loss might have been avoided by the exer- cise of proper skill and care. The trial court refused to instruct the jury that it was incumbent upon plain- tiff to show that the loss might have been avoided by "11 WaU. 129. 156 THE LAW OP CARRIEES OP GOODS the exercise of reasonable care and told the jury that it was incumbent upon defendant to show that it had not been guilty of negligence. Plaintiff recovered in the trial court. The Supreme Court of the United States reversed the decision on the ground that it was the duty of plaintiff, after defend- ant had shoAvn the loss to have occurred by the dangers of navigation, to prove the negligence of the carrier. Since defendant had shown that the loss was occasioned by perils of navigation, it was, in the view of the court, prima facie relieved from liability, for the loss was thus brought within the exceptions of the bill of lading. The court stated that no presumption of negligence could arise from the simple occurrence of the accident. A contrary view appears to be held in some jurisdic- tions, and under this view where the shipper has put in his evidence of loss and the carrier has shown that the loss occurred from one of the causes of liability against which it has protected itself in the shipping receipt, it is held that the carrier has the further burden of show- ing that it exercised reasonable care to prevent the loss. Thus, in Shriver v. S. C. & St. P. R. E. Co.," where marble slabs were shipped packed in a closed box, the shipping agreement released the carrier from liability for damages that might arise from certain specified causes. Upon delivery at destination the slabs were found to be broken. In an action by the shipper to recover for the damage the carrier showed that the loss occurred from one of the causes specified in the shipping receipt. The court charged, however, that the burden of proof to show that it had exercised ordinary care was on the carrier and that the jury might presume negligence from the fact that the goods were found to be damaged when delivered to plaintiff at destination. "24 Minn. 506. ACTIONS AGAINST CARRIER 157 Presumption as to what line the loss or injury occurred on. — Where a shipment is carried over the lines of different carriers, the question of proving on what line the loss occurred is a very important one to the shipper. As the goods are in the custody of the various carriers and the shipper has no access to or control of them during the course of transportation, it is very difficult for him to obtain evidence as to what happens to them during transit. To assist the shipper in finding out on what line the loss occurred the courts have resorted to the presumption that each of the sev- eral connecting carriers receives the goods in the same condition as when they were delivered to the initial carrier. If the shipper, for example, chooses to sue the last carrier, he may show that the goods were delivered in good condition to the initial carrier and the law will presume that they were delivered to the last carrier in the same condition. The burden then rests upon the last carrier to rebut this presumption and show that the loss or injury did not occur on its line. Thus, in Shriver v. S. C. & St. P. R. E. Co.,!^ marble slabs passed over four different carriers in transit from point of origin to destination. Upon deliverj'^ at destina- tion they were found to be broken, but the shipper could offer no direct evidence showing upon which of the lines the injury occurred. The court held that evidence hav- ing been offered to show the goods to be in good condi- tion when delivered to the first carrier, the presumption was that they continued in that state until delivered to the last carrier. The reason given for the ruling was that the carrier may ordinarily know, while the owner ordinarily cannot know, what happens to the goods, and what care is taken of them in passage, and if they are lost or injured, when and how the loss or injury occurred, >»24 Minn. 506. 158 THE LAW OF CARRIERS OF GOODS and in what condition they came from the hands of the prior carrier. The foregoing would seem to be the only fair rule for the shipper. Nevertheless it is not followed in some jurisdictions. Thus, in Marquette, etc., E. R. Co. v. Kirkwood,^" two marble soda fountains, shipped from New York to a point in Michigan, were shown to be delivered in good condition to the first carrier. The fountains were packed in closed boxes and it was im- possible for the carrier by ordinary inspection to determine the condition of the goods at the time it received them. When they were unpacked at destina- tion they were found to be broken. It was held that proof that the goods were delivered to the first carrier in good condition did not raise the presumption that they were delivered to the last car- rier in the same state. The court urged especially that under the special facts of the case the carrier had no means of opening the packages and examining their contents. The court said that the presumption that things remaining unchanged applies just as forcibly backward as forward, and it might be quite as reason- able to presume that the goods were delivered at the final destination in the condition in which they were received by the last carrier as that they came to the last carrier in the same condition as that in which they left the point of origin. The view stated in the last case, however, seems to overlook the fact that the rule is one of convenience and not of strict logic and is designed to overcome the disadvantage under which the shipper is placed by reason of the fact that the carrier has exclusive custody and knowledge of the goods during transit. "45 Mich. 61. CHAPTER XII CARRIER'S COMPENSATION 1. Feeight Chabges When right to freight charges accrues.— The carrier may demand its freight charges in advance. If it fails to do so, however, and accepts the goods for transporta- tion, it seems that its right to freight does not accrue until the goods have been transported and delivered, and its lien does not attach until the carriage is actually begun. The latter point is illustrated in the following case. Plaintiff owners of a ship received sugar on board at Salt River, Jamaica, consigned to defendants at Lon- don. The goods were received September 18, 1795, and on December 2, 1795, the ship cleared out for her voy- age. On December 31, 1795, while waiting for convoy, it was cut out of the river by two French privateers, and carried out to sea, but was recaptured on the same day by a British schooner, and carried into Port Royal, Jamaica. The ship was thereupon libeled in the ad- miralty court of Jamaica and appraised and sold under the order of that court. The proceeds of the cargo, after deducting for salvage, were remitted to defendants as agents for the several owners of goods on board. Plaintiff owners of the ship sued to recover the expense of loading the goods and the expense for the provisions and wages of the crew between the time they began to take in loading and the time of the capture, and also to recover a proportion of the freight. 159 160 THE LAW OF CAERIERS OP GOODS It was held that no proportion of the freight could be recovered since under the marine law no right to freight commenced until the ship had broken ground, and here the ship had not broken ground, having been captured in the river. Furthermore, plaintiffs could not recover a proportion of the freight since the ship never arrived at the point of destination but put into a port in Jamaica, without having conferred any benefit on the shippers.^ Where shipper takes back the goods before transpor- tation is begun. — ^When the goods are laden to be car- ried on a particular voyage, there is a contract that the master shall carry them in the ship upon that voyage for freight; and the general rule is that a contract once made cannot be dissolved except with the consent of both of the contracting parties. If the merchant de- mands the goods in a reasonable time before the ship sails, he is entitled to have them delivered back to him on paying the freight that might become due for the carriage of them, and on indemnifying the master against the consequences of any bill of lading signed for them, but these are conditions to be performed before the original contract can be affected by the de- mand of the goods. It would be most unjust to the owners and master of the ship to hold that upon a single demand at any time the goods must be delivered back in the port of outfit and the carrier be deprived of his right to freight charges.^ Inasmuch as the carrier does not begin to earn the freight charges until transportation is commenced, he cannot recover full freight charges where the shipper takes the goods from his possession before transporta- •Curling v. Long, 1 Bos. & P. 634. •Tindal v. Taylor, 4 El. & B. 219. CARRIER'S COMPENSATION 161 tion is begun. He is only entitled to recover damages for the shipper's breach of contract in so doing. In Bailey v. Damon,* defendant shippers agreed to ship and plaintiffs to transport lumber from Boston, Mass., to Sacramento City, Cal., at a specified rate. The lum- ber was loaded on March 26, 1850, giving the vessel about three-quarters of a cargo. She lay at the wharf with the assent of defendants until May 21, when de- fendants took away their lumber. As a result the vessel was delayed in procuring other freight until July 15, when she sailed for San Francisco. It was held that plaintiffs could not recover upon the theory that the vessel is entitled to collect the full freight when, through the default of the shipper, the goods, although the voyage is commenced, do not reach the port of discharge, since in this case the voyage had not begun, as the vessel had not broken ground, and no freight was, therefore, due and no lien existed, but plaintiffs were entitled to recover for breach of contract full indemnity for all they had lost through the default of the shippers. The court said: "The carrier is to receive full indem- nity for the breach of the contract on the part of the shipper. He is to be made as good, in the pecuniary point of view, as if the shipper had furnished the goods according to his contract, if the carrier has been guilty of no laches in substituting other freight, or adopting other available arrangements to mitigate the loss, or avoiding the expenditure incident to the proposed voyage. But if by proper and reasonable efforts he can substitute other goods, he is bound to do so, and, to the extent of the freight thus received, this should go in reduction of the damages. Nor is the reduction neces- sarily confined to his receipts from goods actually sub- 's Gray 92. 162 THE LAW OF CAKRIERS OP GOODS stituted. The carrier may have been remiss in his attempts to fill up his ship, or have neglected to avail himself of opportunities presented by other offers of goods, and if guilty of negligence in these respects, this may be a ground for a deduction from the entire sum stipulated to be paid by shipper for freight of certain articles which were not furnished to the carrier." Right of carrier to recover full freight charges where a portion of a shipment is lost. — In Sayward v. Stevens,* defendant shipper shipped from Boston to San Francisco by the vessel of plaintiffs certain material intended to be used in the building of a house. The bill of lading specified the articles and stated a lump freight charge of $926.39. Through the fault of the master in stowing a small portion of the goods on deck, this portion was lost. Defendant did not call for the goods upon arrival of the vessel at San Francisco and under the authority of the provision in the bill of lading the master sold the goods for the freight receiving $662.13. In a suit by the owners of the vessel to recover the balance of the freight it was held that they could not succeed. The court said that here the contract was clearly entire and indivisible, plaintiffs agreeing to carry the whole cargo for a lump sum. If they failed, therefore, to perform a part of their contract they made a breach of the entire agreement and could not recover of de- fendant the balance of the freight. Defendant by fail- ing or refusing to accept the goods at San Francisco avoided assenting to a delivery of them with the portion lost at- point of destination and could not, there- fore, be held liable for the freight on the ground that he had accepted the goods and waived the breach. *3 Gray 97. CARRIER'S COMPENSATION 163 The court said: "The definition of a bill of lading is that it is written evidence of the contract for the carriage and delivery of goods for a certain freight. Its peculiarity is that unless freight is wholly earned by strict performance of the voyage no freight is due or recoverable. The contract of the 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. The operation of this rule is sometimes hard and inequitable. For this rea- son courts of law have in many cases readily seized upon any features in contracts for transportation from which it could be inferred that the parties intended to make them divisible and apportionable ; while in other cases they have given such interpretation to the acts of the parties as to substitute, in the place of the original entire contract, a new agreement by which the shipper becomes bound to pay a proportional freight, although the carrier has not fulfilled the whole of the original contract on his part. Within the former class of cases are comprehended all contracts of affreightment by charter party or bills of lading, where the freight is payable by the ton, by admeasurement, by the pack- age or barrel, or where different portions of the same cargo are shipped upon distinct and separate terms as to freight. In all such cases it is held that the delivery of the cargo is in its nature divisible, and the contract itself furnishes the means and the measure of apportioning the freight according to the quantity of the cargo actually delivered. Within the latter class are included all cases where the shipper or consignee by receipt of a portion of the entire shipment at the place of destina- tion is held to waive the full performance of the original contract and to be liable pro rata for the carriage of the goods actually received by him." In the case in 164 THE LAW OF CARRIERS OF GOODS question the court held the contract to be an entire one, and one not falling within any of the cases which authorize an apportionment of freight. Carrier's right to freight only on the amount of the shipment delivered. — It is clear that freight is due only for articles delivered. The shipping contract is both to convey and deliver, and is not completed until the delivery. It may be agreed that freight shall be paid on all of the goods received on board, as is frequently done in the case of live stock which is much exposed in transportation, but unless the parties otherwise agree, freight is due only for that which is delivered, or for which there is a lawful excuse for non-delivery. If casks or boxes in which goods have been packed arrive empty or nearly so, so that the goods are not worth the freight, they cannot be abandoned by the shipper for freight when this is by ordinary leakage or the natural vice of the article. If lost, however, not by ordinary leakage, but by the dangers of the seas, no freight is due. This will excuse the carrier from pay- ing for the loss of the goods but not from a delivery. In case of ordinary leakage, the carrier has performed his contract, so far as depended on him; in the latter his contract is to carry and deliver the goods, the dan- gers of the seas excepted. And as he is prevented from a delivery by these dangers his freight is not earned.^ Carrier's right to freight where goods deteriorate in transportation. — It may happen that goods existing in specie when brought to the place of destination are so deteriorated in condition as not to be worth the freight; then arises the question whether the merchant is bound to pay the freight or is at liberty to abandon 'The Cuba, 3 Ware 260. CAKRIER'S COMPENSATION 165 the goods to the shipowner for his claim. In consider- ing it, the causes from which the deterioration in the merchandise may proceed must be distinguished. If it proceeds from the fault of the master or mariners, the merchant is entitled to compensation and may recover it against the owners or master. On the other hand, if the deterioration proceeds from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation or whether only in the confinement or closeness of the ship, the merchant must bear the loss and pay the freight.® Carrier's right to recover full freight where shipper interrupts the transportation. — The master has a lien on the property to enable him to earn his freight. The moment the transportation begins, the lien attaches, and is not divested so long as the master is proceeding not in default. The consignor is not bound to pay until the transportation is completed in accordance with the contract, but he may not prevent the master's earning his freight. If he takes possession of the goods short of their destination, when the master, not in default, is able and willing to complete the transportation, he must pay full freight. He has prevented or waived the performance of the shipping agreement. The law, there- fore, regards it as performed.'' Carrier's right to freight where shipper is denied opportunity to receive goods at destination. — ^If the carrier refuses to deliver the goods to the consignee at destination and denies to the consignee the opportunity to unload them, it cannot recover the freight charges. In Western Transportation Co. v. Hoyt,* in a shipment •Seaman v. Adler, 37 Fed. 268. 'Braithwait v. Power, 1 N. Dak. 455, •60 N. Y. 230. 166 THE LAW OP CARRIERS OF GOODS by boat of a cargo of oats from Buffalo to New York City, the bill of lading allowed to the consignees three days for unloading after receiving notice of arrival. When the consignees at New York had unloaded only 5,000 out of the 14,000 bushels shipped and before the three days had expired, the carrier took the cargo to Brooklyn and stored the balance of the oats with a warehouseman. In a suit by the owners of the vessel to recover the freight charges, it was held that the act of the carrier in removing the boat and storing the grain prior to the expiration of the time for unloading was wrongful and amounted to a conversion and deprived it of its lien for freight, and the fact that defendant consignee after- ward secured the oats from the warehouseman did not alter the situation. The carrier's duty was not only to transport the oats but also to deliver them. Inasmuch as it had failed to deliver them it had broken its contract and could not recover freight. It was further held that the carrier was not entitled to freight even upon the 5,000 bushels unloaded at point of destination by the consignees. It could not recover such freight on the strength of the original contract since it had broken the contract and it could not recover on the theory of a new implied contract by the con- signees to pay pro rata freight since the delivery of the 5,000 bushels was made with the understanding and expectation on the part of the consignees that the whole quantity was to be delivered and no inference could be drawn of an intention to pay freight in part with- out a delivery of the whole. The case did not fall within the rule that if the consignee is willing to dispense with the performance of the whole voyage and volun- tarily accepts the goods for the complete services ren- CAERIER'S COMPENSATION 167 dered, a proportionate amount of freight will be due as "freight -gro rata itineris." This principle was derived from the marine law. It is said that the common law presumes a promise to that effect is being made by the party who consents to accept his goods at a place short of the port of destina- tion, for he obtains his property with the advantage of the carriage thus far. The principle is based upon the idea of a new contract, and not upon the right to recover upon the original contract. To justify a claim for pro rata freight there must be a voluntary accept- ance of the goods at an intermediate port, in such a mode as to raise a fair inference that the further car- riage of the goods was intentionally dispensed with. In the present case no inference of a promise to pay pro rata freight could be drawn. The carrier doubtless acted in accordance with what it believed to be its legal right, but the act of storing was a refusal to deliver. Carrier's right to recover against consignor where consignee fails to pay freight. — Where the carrier does not demand its freight charges in advance of transpor- tation and consignee, after delivery at destination, fails to pay the charges, the carrier may proceed against the consignor for their recovery. In Wooster v. Tarr,* defendants shipped mackerel upon plaintiff's vessel at Halifax to be delivered at Boston to the consignees, "he or they paying freight for said goods." At Boston the carrier delivered the goods to the consignees, who were insolvent, without requiring the pajTnent of freight. In a suit by the carrier to recover the freight charges of defendant consignors it was held that the latter were liable inasmuch as the shipper or the consignor, whether the owner of the goods shipped or not, is the party with '8 Allen 270. 168 THE LAW OP CARRIERS OF GOODS whom the owner or master enters into the contract of affreightment. Nor did the omission of the master to collect the freight of the consignees before delivering the goods amount to a breach of good faith toward the consignor so as to prevent the carrier from recovering against the latter. The carrier's omission to enforce its lien for the freight against the consignees was no violation of any obligation which the carrier assumed towards defendants as shippers of the cargo. The usual clause in bills of lading that the cargo is to be delivered to the person named or his assignees "he or they paying freight" is only inserted as a recognition or assertion of the right of the carrier to retain the goods carried until its lien is satisfied by the payment of the freight but it imposes no obligation on the carrier to insist on payment before the delivery of the cargo. If it sees fit to waive its right of lien and to deliver the goods without payment of the freight, its right to resort to the shipper for compensation still remains. Although the receipt of the cargo under a bill of lading in the usual form is evidence from which a contract to pay the freight money to the master or owner may be enforced against the consignee, this is a cumulative or additional remedy, which does not take away or impair the right to resort to the shipper on the original contract of bailment for the compensation due for the carriage of the goods. Liability of consignee for freight where he has trans- ferred the bill of lading. — Goods shipped from Havre to New York City were consigned to defendants. Defend- ants transferred the bill of lading thereof to M. and B., to whom plaintiff carrier delivered the goods. M. and B. became insolvent and the carrier sued defendants for the freight charges. It was held that they could not CARRIER'S COMPENSATION 169 recover against defendants, as the transferees of the bill of lading were the persons liable. When goods, by the terms of the bill of lading, are to be delivered to the consignee or to his order, on payment of freight, the party receiving them, whether the consignee or an endorsee to whom the bill of lading has been transferred, makes himself responsible for the payment of the freight. The law implies a promise on his part to pay the freight. The person who accepts and receives the property thereby makes himself a party to the contract. The party who actually receives the goods is the one who becomes liable for the freight.^" Liability of consignee to pay general average. — Where a portion of the cargo is thrown overboard to save a ship and thfi owners of the goods thereby saved are forced to pay for the portion so lost, such an assessment, known as general average, cannot be levied against the consignee unless the bill of lading so provides and the consignee by accepting the goods binds himself by such provision. In Scaife v. Tobin,^^ goods shipped from point of origin to Liverpool were consigned to defend- ant. Defendant had an arrangement with said owners whereby he sold goods consigned to him, carried the proceeds of the sale to the credit of the owners, and debited them with the amount paid by them on their bills, charging a commission upon the sales. During the voyage a part of the cargo was thrown overboard to save the ship in a storm. Plaintiff owners of the ship, having delivered the goods at point of destina- tion to the defendant, sought to recover of him for gen- eral average. "Merian v. Funck, 4 Denis 110. »3 Bam. & Ad. 523. 170 THE LAW OP CARRIERS OP GOODS It was held that a mere consignee, who had a special property in the goods, was not so chargeable nor could defendant be held on an implied contract to pay gen- eral average since there was no provision to that effect in the bill of lading. Consequently, the acceptance of the goods by defendant did not result in an agree- ment on his part to pay the charge. Liability of endorsee of bill of lading for demur- rage. — Where an endorsee of the bill of lading re- ceives the goods at destin^ition he is liable for the pay- ment of demurrage charges contracted for by the con- signor in the bill. Thus, in Wegener v. Smith,** a charter party provided that the cargo should be de- livered at the port of discharge on payment of a cer- tain measurement freight and in case of detention the captain should be paid £5 for every provable layday. The bill of lading, which was endorsed to defendant, made the goods deliverable to order "against payment of the agreed freight and other conditions as per charter party." It was held that defendant, to whom the bill of lading was endorsed and who received the goods, was liable for demurrage. Right of shipper to recover where carrier exacts unreasonable charges. — If the carrier exacts unreason- able charges, as a condition precedent to the delivery of the goods, and the shipper, having tendered a reason- able sum, pays the amount demanded under protest, he can recover the excess above such reasonable amount. Plaintiff consignee demanded from defendant carrier that certain goods which the carrier had transported to London should be delivered to him without the pay- ment of freight. Defendant refused to give them to «15 C. B. 285. CARRIER'S COMPENSATION 171 him except upon his paying £5 and 5s. for carriage and warehousing. Plaintiff insisted that he was not liable to pay anything ; and if he was liable to pay anything, the demand was exorbitant. Defendant declined to deliver the goods unless the whole sum demanded was paid. Thereupon plaintiff paid the entire sum and stated that he paid it under protest. He did not tender a specific sum which he deemed to be a reasonable charge. It was held that in an action for money had and re- ceived plaintiff could recover what he paid defendant in excess of a reasonable transportation and warehousing charge, and this despite the fact that he had not tendered to defendant a specific sum deemed by him to be reason- able.i* Right of shipper to recover freight paid in advance where carriage is not performed. — In the absence of a clear and explicit stipulation in the shipping contract to the contrary, a shipper may recover freight paid in advance where the carrier fails to perform the trans- portation. In Chase v. Alliance Insurance Co.,^* on a shipment of sheep from Glasgow to New Zealand the shipper paid in advance £2,000 out of a lump sum charge of £2,650. Before reaching destination the ship and cargo were totally lost by perils of the sea. It was held that the shipper could recover the 2,000 pounds sterling paid as advance freight. The court said: "Freight paid in advance is not earned, unless the voyage for which it is stipulated to be paid is fully performed; and the owner of the vessel is liable to a claim for reimbursement in favor of the shipper, if for any fault not imputable to the latter, the contract of affreightment is not fulfilled. This rule may be varied "Ashmole v. WainwTight, 2 Q. B. 837. »9 AUen 311. 172 THE LAW OF CARRIERS OF GOODS or annulled by an express agreement in the charter party or bill of lading, by which it is provided that money paid in advance on account of the freight shall be deemed to be absolutely due to the owner at the time of its prepayment, and not in any degree depend on the contingency of the performance of the contem- plated voyage, and the entire fulfillment of the con- tract of carriage. But as such a stipulation is intended to control the usual rule of law applicable to such con- tracts, and to substitute in its place a positive agree- ment of the parties, it is necessary to express it in terms so clear and unambiguous as to leave no doubt that such was the intention in framing the contract of affreightment." CHAPTER XIII CARRIER'S LIEN In general. — ^It was early decided that the carrier has a lien for freight charges, and where the shipper refuses to pay the freight, he cannot sne the carriei for conversion of the goods if the latter refuses to de- liver them.^ No lien for claims unconnected with freight charges. — The carrier has no lien on the goods for any kind of claim against the shipper or consignee unless the claim is for freight charges or the lien is especially provided for in the shipping contract. Thus, in Phillips v. Rodie,* by a charter party a shipper was to pay specified rates of freight for certain named kinds of goods. If the vessel should not be fully laden on the return voyage, he was to pay for as much in addition as the vessel would have carried; and if he should not furnish any return voyage, then he was to pay as much freight for the vessel as if it had been fully laden. He was also to pay a certain rate of demurrage for each day's delay beyond a stipulated time for putting on board the cargo. On the return trip the shipper furnished only part of the cargo. On arrival of the vessel on such trip the shipper tendered the freight and charges as •Skinner v. Upshaw, 2 Ld. Raymond 752. 215 East 547. 173 174 THE LAW OF CARRIERS OF GOODS for the goods shipped, but defendant owner of the vessel demanded an additional sum for demurrage and for freight on the deficiency of the cargo and detained the goods under a claim of lien therefor. In a suit by the shipper for the conversion of the goods it v?as held that he could recover inasmuch as the vessel had no lien above the charges on the goods actually shipped on the return voyage. Any claim which the carrier had above this amount was in the nature of unliquidated damages for breach of contract arising from the shipper's failure to supply a full return cargo. Retention of lien upon delivery of part of goods. — Where a carrier delivers a part of a shipment upon which it has a lien without requiring payment of freight, it does not thereby waive its lien on the re- mainder of the goods for the entire charges paid by it. Thus, in Potts v. N. Y. & N. E. R. R. Co.,* plaintiff consignor shipped coal by schooner to Norwich, Conn., thence to be transported by defendant carrier to South- bridge, Mass. Upon receiving the coal at Norwich, de- fendant paid the water freight to discharge the schoon- er's lien, and carrying the coal to Southbridge, deliv- ered to the consignee all but 119 tons thereof without requiring the pajrment of either the water or land freight. It was held that defendant had a right to hold the 119 tons until it was reimbursed for the water freight paid by it and was paid in addition the amount of its own charges, as it had a lien on the remainder of the shipment to that extent. Lien on goods to protect the carrier against out- standing bills of lading. — In Campbell v. Conner,* goods 9131 Mass. 455. ^70 N. Y. 424. CARRIER'S LIEN 175 in plaintiff's vessel were seized by defendant sheriff on an attachment as the vessel was about to sail for a foreign port. The sheriff refused to give an indemni- fying bond to plaintiff for the value of the goods. Bills of lading were outstanding at the time of the trial but plaintiff as owner of the vessel had been compelled to pay thereon only a small portion of the value of the goods. In an action against the sheriff for wrongfully taking the goods, it was held that plaintiff could recover their full value since he had a lien on the goods to the extent of their full value to cover freight and expenses and also his liability upon outstanding bills of lading. Carrier's lien for charges paid by forwarding agent. — Where a connecting carrier reimburses the forwarding agent for freight charges paid by the latter for the transportation on the preceding line, it has a lien on the goods to recover same but it has no lien for moneys paid by it to the forwarding agent on claims outside of the freight charges. Thus, in Steamboat Virginia v. Bj-aft,^ a forwarding agent at New Orleans shipped goods by plaintiff's steamboat to St. Louis, and upon de- livering the goods to plaintiff's boat, demanded and plaintiff paid to him $153.42, which sum was entered as "charges" in the bill of lading. Of this sum $147.92 was not charges paid by the forwarding agent for previous transportation but represented money advanced to defendant consignees by such agent in connection with other transactions. It was held plaintiff could not recover the $147.92 on the theory that it had a lien on the goods for that amount. «26 Mo. 76. 176 THE LAW OF CARRIERS OF GOODS Lien of connecting carriers where initial carrier with- out their knowledge contracts for a special charge. — Upon the shipment of an omnibus from New York to St. Louis, the consignor contracted with the New York Central Railroad to carry same to St. Louis for $49.33. This carrier transported the omnibus to Buffalo and delivered it to the Michigan Central Railroad, which carried it to Joliet and turned it over to the Chicago & Alton Railroad. The carrier last mentioned paid to the Michigan Central Railroad its charge for the haul from Buffalo to Joliet and also the charges of the New York Central Railroad which the Michigan Central Railroad had paid for the haul from New York to Buffalo. The Chicago & Alton Railroad undertook the transportation and paid these charges without any notice of the special contract between the consignors and the initial carrier. Upon arrival of the omnibus at St. Louis, the Chicago & Alton Railroad refused to deliver the article until plaintiff consignee should pay it the charges it had advanced to the two preceding carriers and its own charge for the haul from Joliet to destination, amounting to $102.40 in all. Plaintiff tendered the $49.33 and then sued to recover the prop- erty. It was held he could not succeed, as the Chicago & Alton Railroad had a lien thereon for the charges of the preceding carriers paid by it as well as for the charges for its own haul. As there was no privity be- tween the three carriers, defendant as the delivering carrier was not bound by the consignor's agreement with the first carrier as to freight charges. Plaintiff was obliged to look to the first carrier for reimburse- ment.^ •Wells V. Thomas, 27 Mo. 17. CAERIBR'S LIEN 177 Right of connecting carrier to lien where through misdirection of initial carrier goods are transported to wrong destination. — If the connecting carrier follows the shipping directions of the initial carrier and through the latter 's mistake carries the goods to the wrong destination, the connecting carrier is not thereby de- prived of his lien for freight charges paid by him and earned upon his own line. In Briggs v, B. & L. R. E. Co./ plaintiff delivered flour to be carried from Racine, Wis., to WiUiamstown, Mass., and the initial carrier issued a receipt agreeing to forward and deliver it to the latter place. By mistake, the initial carrier directed or billed the flour to Wilmington. Defendant connect- ing carrier, acting under the directions received from the initial carrier, received the flour from it and trans- ported it to Wilmington where, being uncalled for, it was sold at public auction to keep from spoiling. It was held in a suit for conversion of the flour that plaintiff was not entitled to recover its full value but that defendant connecting carrier was entitled to a lien on the proceeds to the extent of the charges of the preceding carriers paid by it in addition to its own freight charges, and this despite the carriage of the goods by defendant to the wrong destination. Plain- tiff had made the initial carrier his agent for forward- ing the goods by the connecting carrier and must bear the consequences of the mistake made by the initial carrier in so doing. Inasmuch as defendant connecting carrier had strictly followed the instructions of plain- tiff's agent, the initial carrier, defendant was entitled to its full lien for preceding charges by it and for its own freight. ^e AUen 246. 178 THE LAW OF CARRIEES OF GOODS Right of connecting carrier to lien where goods are delivered to it by the unauthorized act of the initial carrier. — If the initial carrier in the bill of lading undertakes merely to carry the goods to the end of its line and deliver same to a connecting carrier named in the bill of lading, it is acting only in the capacity of a common carrier and not in the capacity of a for- warder and if it delivers the goods to a connecting carrier other than the one specified by the shipper, the act is wrongful and such connecting carrier and suc- ceeding carriers will not obtain a lien for their own charges and for those paid by them to the initial car- rier. In Robinson v. Baker,* plaintiff delivered flour to a canal boat company which issued a bill of lading in which it agreed to transport the flour to Albany and there deliver it to the Western Railroad. Plaintiff sent one of the bills of lading to the agent of the Western Railroad at Albany and the duplicate to the consignee at Boston, thus reserving to himself the right and assuming the responsibility of giving to the agent of the Western Railroad the directions under which the latter was to act. Upon arrival of the flour at Albany, in consequence of the inability of the Western Railroad immediately to receive the same, the initial carrier shipped the flour by another carrier to New York whence it was transported by defendant's vessel to Boston. It was held that defendant did not have a lien for the charges of preceding carriers paid by them and for his own freight. Inasmuch as the initial carrier acted wrongfully in delivering the flour at Albany to a carrier other than the one specified by the shipper, succeeding carriers were not rightfully in possession of the flour and could acquire no lien. »5 Cush. 137. CARRIER'S LIEN 179 Right of carrier to possession of and lien on goods received from one wrongfully in possession of same. — If a carrier receives goods for transportation from one wh.0 has stolen them or is wrongfully in possession of them, the carrier is not entitled to insist on perform- ing the transportation and claiming its lien for freight. In such case the carrier stands in the same position as any other person who receives goods from one not rightfully owning or possessing same. In Bassett v. Spofford,^ plaintiff shipped cases of shoes from Boston to New York and sent his agent with the bill of lading to the vendee at New York. The lat- ter notified the vendee of the arrival of the goods and offered to deliver same to him upon payment of the purchase price. The vendee requested of plaintiff's agent that he give him possession of the bill of lading in order that he might examine the goods and the agent did so for this special purpose. The vendee thereupon took possession of the goods and delivered them to defendant's vessel to be transported to Havana. Plain- tiff demanded the goods of defendant and sued to replevin same. It was held that judgment should be for plaintiff as the carrier had no right to transport the goods or claim a lien thereon for freight. •46 N. Y. 387. TEST QUESTIONS These questions are for the student to use in testing his knowledge of the assignment. The answers are not to be sent to the University. 1. Outline the instances where the consignee is the proper ty to sue the carrier for loss or damage or failure to deliver. 2. When may the consignor sue? 3. Upon whom does the burden of proof as to the negligence ,he carrier fall in suits for loss and injury? 4. Discuss the presumption as to what line the loss or in- y occurs on. 5. What are the carrier's rights when the shipper takes ik the goods before the transportation is begun? 6. When does the carrier's lien for freight attach? 7. Where the carrier delivers only a portion of the goods, at are its rights as to freight charges? 8. Discuss the carrier's rights to freight where the shipper ps the transportation. 9. Discuss the liability of the consignor for freight charges. 10. Discuss the liability of the consignee for freight charges. 11. Name the charges for which the carrier has a lien on goods. 12. What effect on the carrier's lien has the tender of the 'ful or reasonable freight charges by the shipper? 13. Where a carrier delivers part of the goods, what is the ent, if any, of his lien on the remainder? 14. Discuss the right of connecting carriers to a lien for ir freight where the initial carrier has contracted for a special irge. 15. In what instances may the connecting carrier enforce en for its freight although the goods are carried to the wrong tination? 16. What is the right of the true owner of goods against a rier receiving them from one having no right of possession? 180