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cannot dispute the title of a party who delivers goods to him. (a) The consignee may take charge of the goods before they have arrived at their extreme or ultimate place of delivery, and the carrier's risk will then terminate. (b) In New York, it was held, in Ostrander v. Brown, (c) that placing goods on the

place, to be carried continuously by different lines to the ultimate place, the principals remain responsible for the safe delivery to the ultimate destination. Watson v. Ambergate Co. 3 Eng. L. & Eq. 497. The goods lost were models intended for competition for a prize. The damages allowed were simply the value of the goods. See Rooke v. Midland Co. 14 Eng. L. & Eq. 175. Fowles v. Great Western Co. 16 Eng. L. & Eq. 531. Scotthorn v. South Staffordshire Co. 18 id. 553. But see Farmers' & Mechanics' Bank v. Champlain T. Co. 16 Vermont R. 52. 18 Vermont R. 131. Van Santvoord v. St. John, 6 Hill, 158. Wilcox v. Parmelee, 3 Sandf. S. C. R. 610. Moore v. Evans, 14 Barb. R. 524. Parsons v. Monteath, 13 Barb. R. 353. Owners of goods delivered to proprietors of an express line, are bound by contracts made between the forwarders and the carriers. Stoddard v. Long Island R. Co. 5 Sandf. R. 180. New Jersey Steam N. Co. v. Merchants' Bank, 6 Howard's R. 344. (a) Miles v. Cattle, 6 Bing. Rep. 743.

(b) Strong v. Natally, 4 Bos. & Pull. 16.

(c) 15 Johns. Rep. 39. In Chickering v. Fowler, 4 Pick. Rep. 371, it was held, that in the absence of any special custom, a delivery at the wharf, which is the usual place of delivery, with notice to the consignee, is a delivery to the consignee. House v. Schooner Lexington, N. Y. District Court, 2 N. Y. Legal Observer, 4, S. P. The same rule was declared in Cope v. Cordova, 1 Rawle's Rep. 203; and it was grounded on the fact of the general practice in relation to goods coming from a foreign port. In New York, in the case of Fox v. Blossom, (N. Y. Common Pleas, October, 1828,) it was proved upon the trial to be the understanding, that the carrier's responsibility ceased when the goods were landed on the wharf; but the decision was, that the delivery was not complete until the goods were carefully separated and designated for the consignee. And in the case of Pacard v. Bordier, decided in the Supreme Court of Louisiana, in the winter of 1831-32, it was held, that landing goods by the captain of a vessel on the levee at New Orleans, being the usual place of unloading, with notice in the newspapers to the consignees, was not sufficient. The notice must be brought home to the consignee. So, a person undertook to carry boxes of lumber down the river to a certain cove, and being refused a place of deposit there, he deposited them near by, in as safe a place as could be found, and left them, and they were afterwards

'The American cases do not support this doctrine. Farmers' and Mechanics' Bank v. Champlain T. Co. 23 Vt. 186, 209. Nutting v. Connecticut River R. R. 1 Gray, 502. Elmore v. Naugatuck R. R. Co. 23 Conn. 457. N. R. R. Co. v. Waterbury Button Co. 24 ibid. 468. Hood v. N. Y. & N. H. R. R. Co. 22 ibid. 1, 502. In this last case it was held that a railroad company could not contract for liability beyond their chartered limits. Contra, Noyes v. R. & B. R. R. Co. 1 Wms. 110. See also Hart v. R. & S. R. R. Co. 4 Seld. 37. Kyle v. L. R. R. Co. 10 Rich. L. 382. It was decided in Schopman v. B. & W. R. R. Co. 9 Cush. 24, that a railroad company is a common carrier of the passengers whom receives on to its track and into the charge of its agents in the cars of another company.

wharf, without notice to the consignee, is not a delivery to the consignee, so as to discharge the carrier, even though there was a usage to deliver goods in that manner. The carrier must not leave or abandon the goods on the wharf, even though there be .an inability or refusal of the consignee to receive them.'

As carriers by water were liable at common law to the same extent as land carriers, and as their responsibility was more extensive, and their risk greater from the facilities for the commis

carried away by the flood and lost, and he was held responsible. The carrier did not continue his care until he had given notice to the owner, and until the latter had a reasonable time to assume the care of them, and therefore he was held liable. Pickett v. Downer, 4 Vermont Rep. 21. In the case of Gibson v. Culver, 17 Wendell, 305, the duty of the common carrier received a full discussion, and it was considered to be the settled rule, that actual delivery of the goods to the consignee was necessary in order to discharge the carrier, unless it was the course of the business to leave the goods at specified places, and then notice of the arrival and place of deposit, comes in lieu of personal delivery. Carriers by ships and boats must stop at the wharf, and railroad cars must remain on the track. Nothing will dispense with the necessity of the notice instead of actual delivery, but some uniform and notorious usage presumed to be known to the consignee. The necessity of delivery of baggage to the passenger at the end of his journey by the common carrier, before his responsibility can cease, was strongly inculcated by the judges in the case of Cole v. Goodwin, 19 Wendell, 251, and also in Powell v. Myers, 26 Wendell, 591. So, in Hemphill v. Chenie, 6 Watts & Serg. 62, it was held that the responsibility of a carrier upon the Ohio River did not cease upon the delivery of goods on the wharf, with notice to the consignee. There must be an actual delivery to the consignee Though as a general rule, the carrier must deliver the goods to the consignee at the place of delivery; yet where the transportation is by vessels or boats, notice of the arrival and place of deposit come in lieu of personal delivery. If the consignee be dead, or cannot be found, or refuses to receive, the carrier may relieve himself by placing the goods in store with a responsible person in that business at that place, and the storekeeper becomes the agent or bailee of the owner of the property. Fisk v. Newton, 1 Denio, 45.

See Price v. Powell, 3 Comst. R. 322, 324. Goold v. Chapin, 10 Barb. 612. Miller v. S. N. Co. 13 id. 361. The Peytona, 2 Curt. C. C. 21. The Grafton, Olcott, 43. In Thomas v. B. & P. R. R. Co. 10 Met. 472, it was held that the liability of a railroad company as a common carrier ends upon the arrival and storage of the goods in the station. It then becomes liable as a warehouseman. In Norway Pl. Co. v. B. & M. R. R. Co. 1 Gray, 263, the same doctrine was affirmed in a case where the goods were destroyed in the station house, before the consignee had had an opportunity to remove them, and the company was held only to the liability of a warehouseman. But in the similar case of Moses v. B. & M. R. R. Co. 32 N. H. 523, the Supreme Court of New Hampshire held that the liability of the R. R. Co. as a carrier continued till the consignee should have a reasonable opportunity to take away the goods. And see M. C. R. R. v. Ward, 2 Mich. 538.

2 See, however, Farmers' and Mechanics' Bank v. Champlain Transportation Co. 23 Vt.

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sion of acts of fraud and violence upon the water, it was

deemed, in England, a proper case for legislative interfer* 606 ence, to a guarded and limited extent. The statute *of 7 Geo. II. ch. 15, and 26 Geo. III. ch. 86, and 53 Geo. III. ch. 159, exempted owners of vessels from responsibility as common carriers for losses by fire; and provided further that the owner should not be liable for the loss of gold, silver, diamonds, watches, jewels, or precious stones, by robbery or embezzlement, unless the shipper inserted in the bill of lading, or otherwise declared in writing to the master or owner of the vessel, the nature, quality, and value of the articles; nor should he be liable for embezzlements, or loss or damage to the goods arising from any act or neglect, without his fault or privity, beyond the value of the ship and freight; nor should partowners in those cases be liable beyond their respective shares in the ship and freight. (a) Though we have only in one or two instances such statute provisions in this country, (b) yet, according to the modern English doctrine, which may be applicable with us, carriers may limit their responsibility by special notice of the extent of what they mean to assume. The goods in that case are understood to be delivered on the footing of a special contract, superseding the strict rule of the common law; and it is necessary, in order to give effect to the notice, that it be previously brought home to the actual knowledge of the bailor,

(a) Wilson v. Dickson, 2 Barn. & Ald. 2. The statute of 53 Geo. III. further limited the responsibility of shipowners for damage done, without their fault, to other vessels or their cargoes, to the value of the ship doing the damage at the time of the accident.

(b) In Massachusetts, the responsibility of owners was, by a statute passed in 1818, and reenacted in the Revised Statutes of 1836, part 1, tit. 12, ch. 32, sec. 1 and 2, limited to the value of their interest in the ship and freight, in cases where they were liable for loss and damage occasioned by the acts of the master or mariners. By the statute of New York of April 13th, 1820, ch. 202, the conduct of canal-boats is under specific regulations, and freight boats are bound to afford facilities to the passage of packet or passenger boats, through the locks and on the canals, and the master and owners are held responsible in damages for injuries resulting from any undue non-compliance with their duty. Farnsworth v. Groot, 6 Cowen's Rep. 698.

1 They are not exempt from liability as common carriers of goods on their way to the ship in lighters. Morewood v. Pollok, 18 Eng. L. & Eq. 34.

2 For similar provisions in a late act of congress, see vol. iii. p. 217, note (1).

The language of the court in Garnett v. Willan, (e) is, that

and be clear, explicit, and consistent. (a) The doctrine of the carrier's exemption by means of notice, from his extraordinary responsibility, is said not to have been known until the case of Forward v. Pittard, in 1785; (b) and it was * 607 finally recognized and settled by judicial decision in Nicholson v. Willan, (c) in 1804. Bodenham v. Bennet, (d) and in those notices were introduced to protect the carrier only from extraordinary events, or from that responsibility by mistake or inadvertence which belongs to him as an insurer, and not from the consequences of the want of due and ordinary personal care and diligence. It has been strenuously urged in some of the cases, that there was no sound distinction, as to the responsibility of the common carrier under the notice, between ordinary negligence and misfeasance of him or his servants. Be that as it may, it is perfectly well settled, that the carrier, notwithstanding notice has been given and brought home to the party, continues responsible for any loss or damage resulting from gross negligence or misfeasance in him or his servants; and the question of responsibility has generally turned upon the fact of gross negligence. (ƒ)

(a) Butler v. Heane, 2 Campb. Rep. 415. Cobden v. Bolton, ibid. 108. Gouger v. Jolly, 1 Holt's Rep. 317. Mayhew v. Eames, 3 Barn. & Cress. 601. Brooke v. Pickwick, 4 Bing. Rep. 218. It is not sufficient, in order to fix notice on a party, that it was inserted weekly in a newspaper which the party took. Rowley v. Horne, 3 Bing. Rep. 2. The difficulty of giving the requisite notice, said the K. B. in Kerr v. Willan, 2 Starkie's Rep. 53, arises from the attempt of the carrier to depart from the old rule of the common law.

(b) Burrough, J., 8 Taunt. Rep. 146.

(c) 5 East's Rep. 507. Chippendale v. Lancashire Co. 7 Eng. L. & E. R. 395. (d) 4 Price's Exch. Rep. 31.

(e) 5 Barn. & Ald. 53. Mr. Bell strongly condemns the policy of restricting the responsibility of the common carrier by means of the notice; and he says the effect of notice ought legitimately to be confined to the regulation of the consideration for risk; and that the carrier ought, at all events, to be held to the ordinary diligence of the contract, and responsible for the reasonable amount of loss, according to the appearance of the package delivered, if the owner does not choose to pay the amount of the premium, unless he shows a special agreement, or evidence not merely of notice, but of assent to that notice. 1 Bell's Com. 473–475.

(ƒ) Ellis v. Turner, 8 Term Rep. 531. Beck v. Evans, 16 East's Rep. 247. Smith e. Horne, 8 Taunt. Rep. 144. Birkett v. Willan, 2 Barn. & Ald. 356. Batson v.

608

The English judges have thought that the doctrine of exempting carriers from liability by notice, had been carried too far; and its introduction into Westminster Hall has been much lamented. (a) The decisions in this country have shown a firmness of purpose not to relax the strictness of the English rule in respect to the responsibility of common carriers, and they have shown an inclination even to restrict the effect of notice upon that responsibility. (b)

Donovan, 4 ibid. 21. Garnett v. Willan, 5 ibid. 53. Sleat v. Fagg, 5 ibid. 342. Duff v. Budd, 3 Brod. & Bing. 177. Lowe v. Booth, 13 Price's Exch. Rep. 329. Brooke v. Pickwick, 4 Bing. Rep. 218. 12 B. Moore, 447, S. C. Wyld v. Pickford, 8 Meeson & W. 443. Carriers, after the notice, are not liable for a robbery by their servants, if there has been great carelessness on the part of the owner, and no gross negligence on their part. Bradley v. Waterhouse, 1 Danson & Lloyd, 1. (a) See Smith v. Horne, 8 Taunt. Rep. 144.

(b) Eagle v. White, 6 Wharton's Rep. 516. In the case of Barney v. Prentiss & Carter, 4 Harr. & Johns. 317, it was a question raised, but left undecided, whether a common carrier can exonerate himself from the responsibility, by means of a previous notice; but if he can, the notice should, at least, be plain, explicit, and free from all ambiguity. It was, however, declared in Beckman v. Shouse, 5 Rawle, 179, and in Bingham v. Rogers, 6 Watts & Serg. 495, that common carriers might, by special contract, limit the extent of their responsibility. In Atwood v. The Reliance Transportation Company, (9 Watt's Rep. 87,) Ch. J. Gibson questions the policy of the new rule, that the carrier may lessen his common-law responsibility by a special agreement, and it was held that exceptions to the common rule were to be strictly construed. In Ohio, in the case of Jones v. Voorhees, 10 Ohio Rep. 145, the court declared that the proprietors of stage-coaches were common carriers, and that their liabilities could not be limited by actual notice to a traveller, that his baggage was at his own risk, and that a watch in his trunk was part of his baggage. So also in New York, in the case of Hollister v. Nowlen, 19 Wendell, 234, Cole v. Goodwin, ibid. 251, Camden R. R. Co. v. Belknap, 21 ibid. 354, and Gould v. Hill, 2 Hill's Rep. 623, it was decided that stage coach proprietors, and other common carriers, could not restrict their commonlaw liability by a general notice that the baggage of passengers was at the risk of the owners, even though the notice was brought home to the knowledge of the owner. Nothing short of an express contract or special acceptance, as between the proprietor and owner, would be sufficient. These decisions contain very learned and able dis

1 In Pennsylvania, the doctrine of a restricted liability after notice given, especially after a notice warning & passenger not to extend his arms out of the windows of the cars seems to be favored. Laing v. Colder, 8 Barr's R. 479.

2 The case of Gould v. Hill, in so far as it denies the right of a common carrier to restrict his liability by special agreement, has been expressly overruled in New York. Parsons v. Monteath, 13 Barb. 353. Dorr v. N. J. Steam Navigation Co. 4 Sandf. 136. 1 Kern. 485. Stoddard v. L. I. R. R. Co. 5 Sandf. 180. Moore v. Evans, 14 Barb. 524,

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